Vijay Kumar Rajput vs New Delhi Municipal Council And ...
2003 Latest Caselaw 415 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The present proceedings is an illustration of how the very provision of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred as the Act) are defeated by filing various proceedings and prevent the natural conclusion of the proceedings initiated under the special Act.

The petitioner is a licensee of shop No. 243 in Palika Bazar and proceedings were initiated in 1985 against the petitioner under Section 7(1) of the Act for recovery of license fee and interest. The petitioner was proceeded ex parte and the matter was fixed for evidence of respondent Council herein. The petitioner filed a civil suit against the respondent Council in which certain interim orders were passed.

2. The said interim orders have not been annexed to the present writ petition but from perusal of the order of the Estate Officer dated 5.9.2002 it can be deciphered that interim orders were granted in favor of the petitioner directing stay of dispossession and recovery of arrears over and above the reserved rate. This order is stated to have been passed on 28.5.1985. On this order being passed an application was filed by the respondent Council before the Estate Officer that in view proceedings pending before the Civil Court and the interim orders passed, the proceedings under the Act be adjourned sine die. It is unfortunate that it took 13 years for the interim orders granted in favor of the petitioner to be vacated and for the disposal of the application. On the interim orders being vacated, an application was filed by the respondent Council in December 1998 informing the Estate Officer about the same and requesting for reopening of the proceedings. Consequently the proceedings reopened and notices were issued to the petitioner. The respondent Council also moved an application for amendment to include the claim for recovery during the period of time the matter had been adjourned sine die and the interim application pending consideration before the competent Court. This application was vehemently opposed by the petitioner herein but was allowed vide order dated 5.9.2002 of the Estate officer. The petitioner preferred an appeal against the same under Section 9 of the Act and in terms of the order dated 3.2.2003 of the learned District Judge the said appeal was dismissed. The petitioner has now filed the present writ petition impugning the said order.

3. Learned counsel for the petitioner contends that the amendment cannot take away the rights accrued to a party by lapse of time and the time-barred claim should not be included by the amendment. Learned Counsel relies on the judgment of the Supreme Court in Pirgonda Hongonda Patil v. Kslgonda Shidgonda Patil and Ors., AIR 1957 S.C. 363. Learned Counsel further submits that in matters of limitation even if to some extent arbitrariness may lead to hardship, equitable considerations are immaterial and irrelevant in applying the same and strict grammatical meaning of the words used should be given effect to. Learned Counsel has referred in this behalf the judgment of the Supreme Court in Siraj-ul-Haq Khan and Ors. v. The Sunni Central Board of Wazf U.P. and Ors., AIR 1959 Supreme Court 198.

4. Learned counsel for the petitioner has also referred to the judgment of the Supreme Court in NDMC v. Kalu Ram and Anr., AIR 1976 SC 1637, to contend that in proceedings under Section 7 of the Act the word payable can only mean "legally recoverable". Learned counsel has lastly referred to the judgment of this Court in Inderjeet Singh v. NDMC, 103 (2003) DLT 470, to contend that once the proceedings are re-opened it would imply that they have to start de novo. Learned counsel has sought to explain the judgment of learned Single Judge of this Court in Nand Ram and Ors. v. Union of India and Ors., 87 (2000) DLT 234, which was relied upon by the appellate authority and the same has been explained in Inderjeet Singh case (supra).

5. I have considered the arguments advanced by learned counsel for the parties. There is no doubt that in matters of law of limitation, a strict interpretation has to be given and valuable rights which accrue by lapse of time cannot be taken away. It is in these circumstances that it has been held in Pirgonda Hongonda Patil case (supra) that an amendment cannot seek to incorporate time barred claims.

6. The Supreme Court while dealing with the said Act in the context of the word "payable" in Section 7 of the said Act had held in Kalu Ram case (supra) that the same would refer only to amounts "legally recoverable". The learned Single Judge of this Court in Nand Ram case (supra) has held that the Act in question is a special Act and it has provided for a period of limitation wherever it is necessary. The consequence was that the provision of the Limitation Act cannot be made applicable to the special Act. It is this judgment which has been relied upon by the Appellate Authority to reject the contention of the petitioner.

7. It may be noticed that in the impugned order dated 5.9.2002 of the Estate Officer the judgment in Kalu Ram case (supra) were considered. It is however been noticed that in Kalu Ram case (supra) the person had been dispossessed which is not the case in the present proceedings. Apart from this most important aspect is that the amounts remained outstanding because of stay granted by various lower/High Courts.

8. The effect of the said judgment have also been considered in Inderjeet Singh case (supra). In para 12, relied upon by the learned counsel for the petitioner the effect of re-opening of the case has been considered. It is in this context that learned Counsel contends that the present case has also been reopened.

9. I am unable to accept the contention of learned Counsel for the petitioner. It is apparent from the reading of Inderjeet Singh case (supra) that in the said case the earlier proceedings were quashed and it was in that context it was held that the proceedings have to be started afresh. It was consequently held that re-opening in such a case would amount to initiation of fresh proceedings. It was also noticed in the said judgment that the word "payable" is used in Section 7(1) and not in Sub-section (2) which prescribes assessment of damages on account of use and occupation of the premises. In the said case relief was granted to the petitioner also taking into consideration the fact that the respondent authorities had slept over the matter for almost five years and then sought to revive the proceedings against the earlier unauthorised occupant and the petitioner was sought to be imp leaded having came into occupation. In the facts of the said case, it was held that time period for which recovery can take place can only be period of three years prior to initiation of proceedings against the original allottee.

10. The facts of the present case are completely different. Proceedings were initiated against the petitioner since the petitioner had failed to pay the requisite dues/charges. The petitioner rushed to Civil Court and interim orders were granted in favor of the petitioner. No doubt that there was no complete stay of continuation of the proceedings but there were interim orders at least to the effect that respondent would not be able to recover arrears over and above the reserved rate and there was also stay of dispossession. It was in these circumstances that the respondent requested that the proceedings be adjourned sine die in due deference to the proceedings pending before the Civil Court and the orders passed therein. The fact that those proceedings took 13 years to culminate cannot cause prejudice to the respondents even to agitate the claim for the Amount in question. Steps were taken forthwith to revive the proceedings the moment the application was finally disposed of.

11. It is also to be appreciated that the present stage is only one for amendment and inclusion of the claim and the merit of the claim is yet to be adjudicated by the competent authority.

12. In view of the aforesaid circumstances, I find no infirmity with the impugned orders. The proceedings have been initiated only to stall the continuation of the proceedings under the Act.

13. The writ petition is without any merit and substance and the same is dismissed with costs of Rs. 5,000/- payable to the Advocates Welfare Fund -Trustee Committee, to be deposited within two weeks.

CM No 4208/2003:

Dismissed.