Calcutta High Court (Appellete Side)
The Board Of Trustees For The Port Of ... vs M/S. Automobile Association Of Eastern ... on 13 November, 2024
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
C.O. 1945 of 2019
The Board of Trustees for the port of Kolkata
Vs.
M/S. Automobile Association of Eastern India
For the Petitioner : Mr. Probal Mukherjee , Sr. Adv.
Mr. Somnath Bose
For the Opposite Party : Mr. Subhasish Chakraborty
Ms. Susmita Kumari Singh
Ms. Amit Chowdhury
Heard on : 25.09.2024
Judgment on : 13.11.2024
Dr. Ajoy Kumar Mukherjee , J.:
1. The petitioner herein is aggrieved by an order dated 14th September, 2018 passed by learned District Judge, Purba Medinipur in Miscellaneous Appeal no. 15 of 2013 filed under The Public Premises (Eviction of Unauthorized Occupants) Act 1971 (in short of Act of 1971), which was preferred by the opposite party herein. By the order impugned the court below set aside the order of the Estate officer dated 30th June, 2006 by 2 which the Estate Officer while disposing an application under section 7 of the Act of 1971, awarded a sum of Rs. 7,06,196/- towards arrear of rent for the period from December, 1991 to 16.05.1999 along with 7.25% interest per annum upon the said amount and further awarded a sum of Rs. 24,79,540/- towards damages for unauthorized occupation of the public premises for the period from 17.05.1999 till 16.03.2006 along with simple interest @ 7.25% per annum on the said amount.
2. Initially opposite party herein challenged the aforesaid order of the Estate Officer in a writ petition before this court being WP 16552(W) of 2006 and a co ordinate Bench of this Court by an order dated 11.06.2008 was pleased to set aside the order of the Estate Officer. The petitioner herein being aggrieved by the aforesaid order filed a Mandamus Appeal being FMA No. 80 of 2011 and a Division Bench of this court by an order dated 06.03.2013 was pleased to set aside the order passed by learned Single Bench on the ground that there is adequate alternative remedy by way of appeal and the respondents were given liberty to avail benefit of section 14 of the Limitation Act.
3. The opposite party herein accordingly preferred appeal before the District Judge, Purba Medinipur under section 9 of the Act of 1971 being aforesaid Misc. Appeal no. 15 of 2013 against the aforesaid order of Estate Officer dated 30.06.2006. By the impugned order learned court below set aside the aforesaid order of Estate Officer dated 30.06.2006.
4. Before going to further details relevant dates may be reproduced below for the sake of convenience and gravity of the discussion.:- 3
01.03.1979- The opposite party herein was granted lease in respect of a land measuring about 2023.427sq.mt. in Haldia for a period of 30 years w.e.f. 1st March, 1979 at agreed rent as contained in office letter bearing no. 1/E/121/1057 dated 29.07.1978 30.04.1979- Opposite party took possession of demised leased land 13.11.1998- Petitioner issued ejectment notice to the opposite party for breach of terms of allotment and lease and were advised to quit and vacant by 16.05.1999.
22.02.2000- The Estate Officer passed an order under the Act of 1971 directing the opposite party herein to vacate the said leased property within 15 days from such order.
14.03.2000- The opposite party claims to have surrendered possession pursuant to aforesaid order passed by the Estate Officer 28.05.2005- The opposite party was served with a notice under section 7 of the Act of 1971 claiming arrears of rent and damages.
27.01.2006- A follow up notice under section 7(3) of the Act of 1971 was issued to the opposite party.
10.02.2006- The opposite party herein wrote a letter informing that they have surrendered the demised leased land on 14.03.2000 and no due is payable or even if any amount is payable, the same is barred by limitation.
22.02.2006- The Estate Officer pursuant to his order and in exercise of his power under section 5(2) of the Act of 1971 took vacant possession of demised lease land of the opposite party.
28.02.2006- The Estate Officer handed over possession of demised land to the petitioner herein.4
03.05.2006- The opposite party herein requested the petitioner herein to withdraw its demand of arrear rent and damages.
30.06.2006- the estate officer passed the abovementioned order awarding arrear rent and damages along with interest invoking his power under section 7(1), (2), (2A) of the Act of 1971 read with Rule 8 of Public Premises (Eviction of Unauthorized Occupants) Rule 1972.
5. Mr. Probal Mukherjee learned. Sr. counsel appearing on behalf of the petitioner submits that the court below has reckoned the date of limitation from the date of alleged surrender by the opposite party herein i.e. from 14.03.2000 which is per se fallacious because the plea of surrender was unilaterally raised by the opposite party just to deny the demand made by the petitioner and the aforesaid contention of surrender on 14.03.2000 was never substantiated by opposite party with any document evidencing acknowledgment of receipt of possession of the demised land by the Estate Officer pursuant to his order dated 22.02.2000. On the contrary the case of the petitioner, as also reflected in the impugned order, that the estate officer took vacant possession of the demised leased land on 22.02.2006 and handed over possession to the petitioner on 28.02.2006
6. Mr. Mukherjee further contended, since the recorded date for taking over possession of the demised land by the Estate Officer is 22.02.2006 and as such the entire order of the court below reckoning the date of commencement of limitation from 14.03.2000, as unilaterally claimed by the opposite party towards surrender of possession, is perverse and contrary to the material on record. Accordingly limitation never set in as against the claim for damages since the jural and legal possession was 5 taken by the Estate Officer only on 22.02.2006 and Estate Officer awarded and determined quantum of damages for the period from 17.05.1999 till 22.02.2006/16.03.2006 together with interest.
7. Mr. Mukherjee further contended that the court below fell in error in relying upon a fundamental misconception of 'surrender of possession' as claimed by the opposite party ignoring the settled law that the surrender of any piece and parcel of land must be followed by acknowledgment of the person entitled to receive possession, that possession is indeed received. Thus, the plea of surrender of possession on 14.03.2000 is an unsubstantiated claim of the opposite party, only to deny payment of the lawful outstanding amount and the same is never barred by limitation as the proceeding commenced after order of eviction was passed but before receipt of delivery of possession
8. Mr. Mukherjee further contended that though the court below as well as learned counsel appearing on behalf of the opposite party has heavily relied upon the ratio laid down by the Apex Court in the judgment reported in New Delhi Municipal committee Vs. Kalu Ram, reported in (1976) 3 SCC 407, but the same is distinguishable on facts in this case. On the contrary, relying upon M.P. Steel Corporation Vs. CCE, reported in 2015 (7) SCC 58 and Sesh nath Singh Vs. Baidyabati Seorafully Co-operative Bank ltd. & another, reported in (2021) 7 SCC 313, Mr. Mukherjee contended that on perusal of the Limitation Act it is clear that the bar of limitation contained in the schedule to the Act, applies to suits, appeals, and applications. Suits 'are understood as actions begun in courts of law established under the constitution of India. Here the order of the Estate 6 Officer is not an order of any court and as such Limitation Act has got no application in the present context. According Mr. Mukherjee prayed for setting aside the order impugned.
9. Mr. Chakraborty learned Counsel appearing on behalf of the opposite party contended that in absence of any specific power provided in the Act of 1971 to realize time-barred claim, the Estate Officer cannot recover any claim under section 7 of the Act, which is barred by law or which cannot be ordinarily recovered by filing a suit. He further argued that the Estate Officer being a creature of the statute cannot act or take any action which he is not empowered under the Act of 1971. Infact section 7 of the Act of 1971 provides for a summary procedure for a recovery of arrear rent but it does not create any right to realize arrears of rent without any limitation of time or claims which are not ordinarily recoverable. If the recovery of the amount is barred by law the Estate Officer could not insist that the said amount was payable, specially when a duty has been casted upon the Estate Officer under section 7 to determine the arrears of rent and such determination must be in accordance with law.
10. He further contended that section 7 of the Act of 1971 is pari materia with the provision of section 7 of the Public Premises (Eviction of Unauthorized Occupants) Act 1958 and as such the law laid down by the Supreme Court in the case of Kalu Ram (supra) would be squarely applicable in the present case. He further contended that the law laid down by the Apex court in the case of Kalu Ram (supra) has been followed till date by the Apex Court and also by different High Courts. In fact it is settled principle of law that the provisions of Limitation Act would apply to 7 a proceeding initiated under the Act of 1971 and in absence of any special power given to the Estate Officer to recover a time barred claim, the Estate Officer would not be entitled to do the same.
11. In this context Mr. Chakraborty on behalf of the opposite party relying on the judgment of the Supreme Court in K. Shyam Rao Vs. the Assistant Charity Commissioner Reported in (2003) 3 SCC 563 argued that the Estate Officer possesses all the powers of a court. He further argued that the scheme of the Act of 1971 would show that the Estate Officer has not only the trappings of a judicial tribunal but also has the power to give a decision or a definite judgment which has finality and authoritativeness, which are essential test of a judicial proceeding. The Estate Officer has almost all the powers which an ordinary civil court has including the power of summoning witnesses compelling production of documents, examining witnesses on oath and coming to a definite conclusion on the evidence adduced and argument submitted. Thus, the Estate Officer is a court and the provisions of Limitation Act would apply in the proceedings initiated by the Estate Officer under the Act of 1971.
12. Distinguishing the judgment cited by the ld. Sr. counsel for the petitioner in the case of M.P. Steel Corporation (supra), Mr. Chakraborty has relied on the judgment delivered by the Supreme Court in the case of Andhra Pradesh Power Coordination Committed and others Vs Lanco Kondapalli Power Ltd. and others reported in (2016) 3 SCC 468 (Para 28-33). He further contended that in the case of Andhra Pradesh Power corporation Committee (supra) the Apex Court after considering the judgment rendered in the case of M.P. Steel corporation (supra) has 8 declared that the law laid down in the case of Kalu Ram (Supra) is good law and it was further observed that in absence of any provision creating a new right upon a claimant to claim any amount of money barred by limitation or taking away a right of the other side to take a lawful defence of limitation, time barred claims which are not legally recoverable in a regular suit, cannot be entertained on account of law of limitation. Accordingly the earlier judgment of the Apex Court in M.P. Steel Corporation (supra) is not applicable in this case and on the contrary the law laid by the Apex Court in Kalu Ram's case (supra) should be followed. He further contended that the petitioners even after defeating earlier proceedings on the self same issue has preferred the present application, which is a vexatious one. The present Application is thus liable to be dismissed with exemplary costs.
13. In view of the arguments advanced by both the parties the following points are framed for adjudication of this application
(i) Whether the provision of limitation Act 1963 would apply in a proceeding initiated by the Estate Officer under section 7 of the Act of 1971
(ii) Whether the claim of petitioner can at all be said to be barred by limitation in view of petitioner's claim that Estate Officer handed over possession of the demised leased land to the petitioner on 28.02.2006 after taking vacant possession on 22.02.2006.
9
Decision
14. There is no dispute among learned counsel for the parties that section 7 of the Public Premises (Eviction of Unauthorized Occupants Act) 1971 is pari materia with the provision of section 7 of the Public Premises (Eviction of Unauthorized Occupants) Act 1958, based on which Supreme Court has laid down the law to be applied in such cases in the case of Kalu Ram.
15. In Kalu Rams' Case (supra) while Supreme Court dealt with the self same issue has observed :-
"Does section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 create a right to realise arrears of rent without any limitation of time ? Under section 7 the Estate Officer may order any person who is in arrears of rent 'payable' in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order. Before however the order is made, a notice must issue calling upon the defaulter to show cause why such order should not he made and, if he raised any objection, the Estate Officer must consider the same and the evidence produced in support of it. Thus the Estate Officer has to determine upon hearing the objection the amount of rent in arrears which is 'payable.' The word 'payable' is somewhat indefinite in import and its meaning must he gathered from the context in which it occurs. 'Payable' generally means that which should be paid. If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws. If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable. When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time-barred. Construing the expression "any money due" in section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others v. Official Liquidators of the Dehradun Mussorie Electric Tramway Company Ltd.(1) that this meant moneys due and recoverable in suit by the company, and observed: "it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights." We are clear that the word "payable" in section 7, in the context in which its occurs, means "legally recoverable." Admittedly a suit to recover the arrears instituted on the day the order under section 7 was made would have been barred by limitation. The amount in question was therefore irrecoverable. This being the position, the appeal fails and is dismissed with costs."
16. On a similar context while dealing with the issue as to whether the provisions of a statute which creates a special procedure for obtaining 10 payment of money or speedy recovery of money due, creates a new right to recover of amounts which are not legally recoverable, a three judges Bench of the Apex Court in State of Kerala and others Vs. V.R. Kalinikutta reported in (1999) 3 SCC 657 held in para 14 as follows.
"14. In our view if such a wide interpretation is put on the words "amount due" under the Kerala Revenue Recovery Act, there is every likelihood of the provisions of Article 14 being attracted. This Court in the case Director of Industries, U.P. v. Deep Chand Agarwal [(1980) 2 SCC 332 : AIR 1980 SC 801] justified the special procedure for recovery of certain debts under the U.P. Public Moneys (Recovery of Dues) Act, 1965 on the ground that the amounts which were advanced by the State or by the financial institutions were for the economic betterment of the people of that State. Speedy recovery of these amounts was necessary so that these amounts could be reutilized for the same public purpose. It is doubtful if this public purpose would extend to granting exemption to these claims from the statute of limitation. The law of limitation itself rests on the foundations of public interest. The courts have expressed at least three reasons for supporting the existence of statutes of limitation:
(1) that long dormant claims have more of cruelty than justice in them; (2) that a defendant might have lost the evidence to disprove a stale claim; and (3) that persons with good causes of action should pursue them with reasonable diligence.
(See Halsbury's Laws of England, 4th Edn., Vol. 28, para 605.) In Nav Rattanmal v. State of Rajasthan [AIR 1961 SC 1704] the statutes of limitation have been considered as statutes of repose and statutes of peace. The generally accepted basis for such statutes is that they are designed to effectuate a beneficent public purpose. Whether public purpose of speedy recovery would outweigh public purpose behind a statute of limitation is a moot point. But we need not examine this aspect any further in view of our interpretation of the words "amounts due" in Section 71."
17. The observation made by Supreme Court in Kalu Ram's case (supra) were also followed in subsequent cases like Banatwala and Company Vs. Life Insurance Corporation of India and another reported in (2011) 13 SCC 446 and the Apex Court in Para 38 of the judgment supported the same view.
18. This High Court and other High Courts also consistently followed the aforesaid law laid down by Apex court in Kalu Ram's Case (supra) 11
19. In the Board of Trustees for the Port of Kolkata Vs. N/S Costal Roadways Ltd, Manu /WB/0681/2015, this High Court held in para 39 as follows:-
"(39) It is well settled that in exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned order but it may also make such directions as the facts and circumstances of the case may warrant by way of guiding the inferior court or tribunal as to the manner in which it should proceed afresh. I am of the view that a very important question that the Estate Officer did not address is the question of limitation of the petitioner's claim for damages. The Hon'ble Supreme Court has held in the case of New Delhi Municipal Committee-vs.-Kalu Ram (supra) that the provisions of Limitation Act apply to proceedings under Public Premises Act for recovery of damages. Under Article 141 of the Constitution of India, such declaration of the Supreme Court is the law of the land and binding on all courts and tribunals. As noted above, the Delhi High Court, the Madhya Pradesh High Court and also our court have held that the provisions of the Limitation Act apply to proceedings under the Public Premises Act before the Estate Officer. The Division Bench of the Madhya Pradesh High Court which took a different view in the case of L.S. Nair-vs.-Hindustan Steel Ltd. (supra) did not consider the Supreme Court decision in New Delhi Municipal Committee-vs.-Kalu Ram (Supra) and as such is per incuriam. Even if the plea of limitation was not set up by the opposite party before the Estate Officer, it was the duty of the Estate Officer to go into that question."
20. Similarly in T.K. Warehousing Enterprise Pvt. Ltd Vs. Brids Jute and Exports Ltd reported in 2015 SCC Online Cal 7022, it was held "In view of the clear pronouncements made by the Hon'ble Supreme Court of India in the above reports, this Court held that the expression 'payable' legally recoverable sum and, therefore, the time barred claim cannot be ordered by the Estate Officer under Section 7 of the said Act."
21. In the case of Shalimar Paints Ltd. Vs. The Board of Trustees for the Port of Kolkata reported in 2015 SCC Online Cal 8365 in para 23 it was decided as follows:
"23. In view of above, the finding of the Estate Officer "the Limitation Act has no application in the proceedings before this Estate Officer which is not a Civil Court governed by the Civil Procedure Code" is set aside, and observation of the Estate Officer to the effect "Section 15 of the Act puts a complete bar on entertaining any matter before the Civil Court in respect of Public Premises" is held as misconceived one. The issue no. (ii) is thus answered in the affirmative."12
22. This High Court in another judgment in Bhatpara Papers Pvt. Ltd. Vs. The Board of Trustees for the port of Kolkata reported in 2015 SCC Online Cal 8332 held in para 22 as follows:
"22. On behalf of the port trust it was also argued that the judgment of the Supreme Court in the case of Kalu Ram was delivered without considering the amended provision of Section 15 of the 1971 Act. Under the said provision, as it stands now, jurisdiction of the Civil Court has been barred in relation to entertaining any suit or proceeding pertaining to, inter alia, eviction of any person who is in unauthorized occupation of any public premises. In my opinion, however, this provision is not of significance so far as the applicability of the ratio of the decision of the Supreme Court in the case of Kalu Ram (supra) is concerned. The 1971 Act creates an exclusive mechanism for public undertakings to recover their property and dues, but no right is created under this statute to recover dues which would not have been recoverable through a regular suit."
23. Similarly Delhi High Court in Shri G.R. Gupta Vs. Lok Sabha Secretariat, 2013 SCC Online Del 4832 in para 25 as follows:
"25. In view of the aforesaid authoritative pronouncement by the Supreme Court, this Court is of the opinion that the distinction sought to be drawn by the respondent between proceedings under Sections 7(1) and 7(2) of the PP Act, 1971, is untenable in law. The reliance of the respondent on the judgment of the Madhya Pradesh High Court in L.S. Nair v. Hindustan Steel Ltd., Bhilai (supra) is also misplaced as the same did not deal with or refer to the aforesaid Supreme Court's judgment in New Delhi Municipal Committee v. Kalu Ram (supra). In fact, in L.S. Nair v. Hindustan Steel Ltd., Bhilai (supra), the Madhya Pradesh High Court has dealt with the judgment of the Punjab High Court in Kalu Ram v. New Delhi Municipal Committee (1965) 67 Pun LR 1190 and not the Supreme Court's judgment.
26. It is settled law that a judgment of one High Court is not binding on the other, but in view of Article 141 of the Constitution of India, the Supreme Court judgment is binding on all High Courts. Consequently, the finding of the learned Single Judge that the limitation prescribed under the Act, 1963 has no application to recovery of damages under Section 7(2) of the PP Act, 1971, is not correct."
24. Similarly Madhya Pradesh High Court in Lakhanlal Rawat Vs. Union of India held in "11. Thus the issue which arises for consideration before me in the instant revision is whether damages for illegal occupation of the quarter for a period form 1-4-1985 to 29-6-1997 are legally 13 recoverable in proceedings initiated on 22-5-2003 under section 7 of the Act.
12. While construing the expression" any money due" under section 186 of the Indian Companies Act, 1913 the Privy Council in Hans Raj Gupta Vs. Official Liquidators of the Dehradum-Mussoorie Electric Tramway Company Ltd. AIR 1993 Privy Council 63 has held that section 186 of the Indian Companies Act creates a special procedure for obtaining payment of moneys and is not a section which purports to create a foundation upon which to base a claim for payment. It creates no new rights.
13. In New Delhi Municipal Committee (supra), the Supreme Court while considering the scope and ambit of expression "payable", appearing in section 7 of the Act held that section 7 of the Act only provides of special procedure for realization of rent in arrears and does not constitute a source or foundation of a right to claim debt otherwise time barred. It was further held that when a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law. It was held that the word "payable" in section 7 of the Act in the context in which it occurs means legally recoverable.
14. The aforesaid decision of the Supreme Court in the matter of New Delhi Municipal committee referred to supra was quoted with approval in State of Kerala and ors. Vs. V.R. Kalliyanlyutty and anr., AIR 1999 SC 1305.
15. Thus, the issue involved in the instant revision is squarely covered by the decision of the Supreme Court in New Delhi Municipal Committee's case (supra). Therefore, it is held that damages for the period form 1-4-1985 to 29-6-1997 on account of illegal occupation of quarter were irrecoverable in proceedings initiated on 22-5-2003. Since, this Court has dealt with the question of limitation only, therefore, it is not necessary to refer to the other contentions raised by the learned counsel for the parties."
25. In this context though learned Counsel heavily relied upon the case of M.P. Steel Corporation Case (supra) but the Supreme Court in Andhra Pradesh Power co-ordination committee and others case (supra) has considered the MP Steel Corporation (supra) case and held in para 30 as follows "30. In such a situation it falls for consideration whether the principle of law enunciated in State of Kerala v. V.R. Kalliyanikutty [State of Kerala v. V.R. Kalliyanikutty, (1999) 3 SCC 657] and in New Delhi Municipal Committee v. Kalu 14 Ram [New Delhi Municipal Committee v. Kalu Ram, (1976) 3 SCC 407] is attracted so as to bar entertainment of claims which are legally not recoverable in a suit or other legal proceeding on account of bar created by the Limitation Act. On behalf of the respondents those judgments were explained by pointing out that in the first case the peculiar words in the statute--"amount due" and in the second case "arrears of rent payable" fell for interpretation in the context of powers of the tribunal concerned and on account of the aforesaid particular words of the statute this Court held that the duty cast upon the authority to determine what is recoverable or payable implies a duty to determine such claims in accordance with law. In our considered view a statutory authority like the Commission is also required to determine or decide a claim or dispute either by itself or by referring it to arbitration only in accordance with law and thus Sections 174 and 175 of the Electricity Act assume relevance. Since no separate limitation has been prescribed for exercise of power under Section 86(1)(f) nor this adjudicatory power of the Commission has been enlarged to entertain even the time-barred claims, there is no conflict between the provisions of the Electricity Act and the Limitation Act to attract the provisions of Section 174 of the Electricity Act. In such a situation, on account of the provisions in Section 175 of the Electricity Act or even otherwise, the power of adjudication and determination or even the power of deciding whether a case requires reference to arbitration must be exercised in a fair manner and in accordance with law. In the absence of any provision in the Electricity Act creating a new right upon a claimant to claim even monies barred by law of limitation, or taking away a right of the other side to take a lawful defence of limitation, we are persuaded to hold that in the light of nature of judicial power conferred on the Commission, claims coming for adjudication before it cannot be entertained or allowed if it is found legally not recoverable in a regular suit or any other regular proceeding such as arbitration, on account of law of limitation. We have taken this view not only because it appears to be more just but also because unlike labour laws and the Industrial Disputes Act, the Electricity Act has no peculiar philosophy or inherent underlying reasons requiring adherence to a contrary view."
26. In view of aforesaid consistent observations made by the Apex Court as well as different High Courts including our own High Court, I do not find any reason to take a contrary view. Accordingly the first issue is answered with the observation that the provision of Limitation Act would apply in a proceeding initiated by the Estate Officer under section 7 of the Act of 1971.
27. Now let me discuss about the second issue i.e. whether the claim made by the petitioner herein is at all time barred or not. I have already stated that Mr. Mukherjee on behalf of the petitioner, strenuously argued 15 that the petitioner received possession of the demised land from the Estate Officer on 28.02.2006 after Estate Officer has taken over possession on 22.02.2006 and as such the claim for arrear rent from December 1991 to 16.05.1999 and the claim of damages for the period from 17.05.1999 till 22.02.2006 is not barred by limitation.
28. In this context it is to be reiterated that opposite party herein has specifically stated that he surrendered possession of the leasehold property on 14.03.2000 in terms of the order passed by Estate Officer on 22.02.2000. Neither the petitioner nor the opposite party filed any document as to when opposite party actually surrendered possession. Mr. Mukherjee argued that surrender must be followed by acknowledgment of the person entitled to receive possession that possession is indeed delivered. In the absence of any such receipt, the date of handing over possession must be taken as 22.02.2006, when the Estate Officer took possession of the property and the pleas of surrender on 14.03.2000 as raised by the opposite party is an unsubstantial claim.
29. It is true that alleged claim of surrender by petitioner on 14.03.2000 is not substantiated by document but at the same time it is not in dispute that in reply to petitioner's letter dated 27.01.2006 and claim dated 28.05.2005, petitioner gave reply on 10.02.2006 informing that they have surrendered lease hold property on14.03.2000. It is also undisputed that on 22.02.2006 Estate Officer took 'vacant' possession of demised land which he subsequently handed over to the petitioner on 28.02.2006. Accordingly though opposite party's claim of surrender on 14.03.2000 remains unsubstantiated by document but at the same time petitioners in 16 support of their claim of arrear rent and damages also could not establish that opposite party herein was in possession till 2006.
30. Furthermore as stated above being aggrieved by the order of Estate Officer, petitioner preferred WP No. 16552(W) of 2006. In the said judgment a co-ordinate Bench of this court made a finding that by a letter dated 18th April, 2000 the petitioner no.1 i.e. automobile Association interalia informed the junior Assistant Manager (Administration) of Haldia Dock Complex that the petitioner no. 1 has already given possession in compliance with the notice dated 3rd March, 2000. In the said judgment Bench further observed:-
"The Estate Officer thus lacked jurisdiction to entertain a time barred claim. The impugned order is also violative of principles of natural justice. It is not necessary for this Court to adjudicate the disputed question of fact of whether the petitioner gave up possession on 14th March, 2000 or in February, 2006. Nor is it necessary for this Court to decide any disputed questions of fact. The question is whether there is any infirmity in the decision making process. For reasons already discussed, this Court is constrained to hold that the decision making process itself is vitiated.
Admittedly, the order of eviction of the Estate Officer was made on 22nd February, 2000. The Estate Officer called upon the petitioner No. 1 and all persons who might be in occupation of the public premises or any part thereof to vacate the said premises within 15 days of the date of publication of the order of eviction, failing which the petitioner No. 1 and all other persons concerned would be liable to be evicted from the said premises, if need be, by use of such force as might be necessary.
There was no direction on the petitioners to make over vacant peaceful possession to the Estate Officer or to any other specific authority. The petitioners were merely directed to vacate the public premises within 15 days of the date of publication of the said order. The petitioners claim to have surrendered possession on 14th March, 2000. It is not disputed that the letter dated 14th March, 2000 of the petitioners, claiming to have surrendered possession was received by the Assistant Land Manager, Haldia Dock Complex, acknowledged and replied to by a letter dated 29th March, 2000.
The concerned respondents insisted on delivery of vacant possession to the Estate Officer, even though there was no such direction in the order of eviction passed against the petitioner No. 1.
Admittedly, no steps were taken by the respondents for forcible eviction of occupants, if any, on the said plot. The respondents, for 17 reasons best known to themselves, chose not to take recourse to section 5(2) of e 1971 Act, setout hereinbelow:
"5(2) If any person refused or fails to comply with the order of eviction on or before the date specified in the said order within fifteen days of the date of its publication under sub-section (1), whichever is later, the estate officer or any other officer duly authorised by the estate officer in his behalf may, after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary."
There is no question of this Court adjudicating the factual dispute of whether the petitioners gave up possession on 14th March, 2000 or in February, 2006, as argued by Mr. Sanyal. The Estate Officer did not reject the contention of the petitioners that possession had been surrendered on 14th March, 2000, but proceeded on the basis that possession had not been made over in compliance with requisite formalities.
In the absence of any specific provision in the 1971 Act and/or the rules framed thereunder, prescribing any particular mode of delivery of possession, and in view of the order of eviction, whereby the petitioner No. 1 and others were merely directed to vacate within a specified date, no fault can be found with the action of the petitioners in surrendering possession by writing a letter. By the order of eviction, the petitioners and others were directed to vacate, failing which forcible eviction was threatened. No obligation was cast on the petitioner No. 1 to get others vacated.
No reasons are forthcoming as to what prevented the respondents from taking recourse to forcible eviction of unauthorized occupants, if any, on the said plot, immediately upon expiry of 15 days from the date of publication of the order of eviction and more so when the petitioners had informed the concerned respondents that they had surrendered the said premises. In awarding damages, the Estate Officer has ignored the contributory negligence and dereliction of duty on the part of the respondents for which the respondent authorities could not recover vacant possession of the said plot. The Estate Officer overlooked the failure of the respondent authorities to take necessary steps for mitigation of damages. The Estate Officer has apparently proceeded in a partisan and biased manner. For the reasons discussed above, the impugned order cannot be sustained. The writ application is thus allowed and the impugned order is accordingly set aside and quashed.
31. It is true that such observation was challenged before Division Bench of this court in The Board of Trustees for the Port of Kolkata & ors. Vs. M/S Automobile Association of Eastern India & ors. in FMA 80 of 2011 but the Division Bench, without setting aside such observation held:-
18
"We cannot go into the questions of fact as to whether the writ petitioner had surrendered possession. Consequently we cannot go into the question as to whether the writ petitioner was made liable for payment of occupation charges in the form of damages or on account of arrears of rent for appropriate reasons. These are the questions of fact which can only be decided by the statutory authority. There is no good reason why the writ petition should have been entertained when there was appropriate remedy available to the writ petitioner before the appellate forum. The High Court in its writ jurisdiction cannot sit in appeal over an order passed by a statutory authority which appears to have been done in this case.
For the aforesaid reasons the order under challenge is set aside. The writ petitioner shall be at liberty to prefer an appeal against the order dated 30th June, 2006. The time during which the writ petitioner has been litigating before this Court either as a writ petitioner or as a respondent before us shall be excluded for the purpose of limitation under Section 14 of the Limitation Ac The appeal and the application are both, thus, disposed of "
32. Accordingly the observation of coordinate Bench in WP 16552 of 2006 regarding surrender of possession by opposite party herein has attained its finality and as such I find no substance in the petitioners contention that the opposite party herein has vacated the lease hold property in the year 2006.
33. Needles to say that Article 52 of the Limitation Act deals with the cases for realization of arrears of rent which is three years when the arrear becomes due and in the present case admittedly O.P. was called upon to pay arrear of rent from December, 1991 to 16.05.1999 by a letter dated 25.08.2005 and as such it is clearly barred by limitation.
34. Now so far as claim of damage amount of Rs. 24,79,540/- for the period 17.05.1999 till 16.03.2006, it can be said that there is no dispute that under the law the occupier is liable to pay damage till delivery of possession of the property is made as an unauthorized occupants but in view of aforesaid discussion, I am constrained to say that petitioners claim 19 of unauthorized occupation of the property by the opposite party till 2006 has not been substantiated and as such aforesaid claim of damages made by the petitioner is also barred by limitation.
35. In view of aforesaid discussion I find no substance to interfere with the ultimate finding of the court below in the impugned order dated 14.09.2018.
36. C.O. 1945 of 2019 thus stands dismissed.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Dr. AJOY KUMAR MUKHERJEE, J.)