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1978 DIGILAW 47 (CAL)

Debendra Nath Sanyal v. Union of India

1978-01-20

SALIL KUMAR DUTTA

body1978
JUDGMENT Salil Kumar Dutta, J. 1. The plaintiff/appellant was served with a notice by the Estates Officer appointed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1958, on 31.3.1960 for payment of damages in respect of premises, being portion of a flat in "J" Block, 4th Floor at No.167, Rash Behari Avenue, Ballygunge, Calcutta for the period commencing from 20.8.1946 to 28.2.1952 amounting to Rs. 2489/-. On receipt of this notice, an objection was filed by the plaintiff before the said officer which was overruled. It appears that no further step was taken by the appellant by way of appeal against the aforesaid order as provided in the said Act. The plaintiff thereafter received a notice of warning from the Certificate Officer, Alipore, 24 Parganas, demanding payment of damages for Rs. 2489.38 paise for the said period. The plaintiff on receipt of this notice served a notice under section 80 of the Code of Civil Procedure on the Government through his lawyer indicating his intention to institute a suit for declaration that the certificate and the assessment of damages were illegal and ultra vires and for cancellation of the same and thereafter he filed this suit. 2. This suit was contested by the Union of India and was dismissed and the dismissal of the suit was affirmed on appeal. This second appeal is against this decision. 3. It may be mentioned here that earlier the plaintiff was served with a notice of demand under a certificate for damage for use and occupation of the same premises for a portion of the aforesaid period. The plaintiff challenged the legal validity of the said demand in Title Suit No.16 of 1955. This suit was decreed and certificate was declared ultra vires, as the Government Premises (Eviction) Act, 1950 whereunder the demand was made, was itself declared ultra vires in Jagu Singh vs. M. Shaukat Ali, (1954) 58 CWN 1066. In view of the aforesaid decision the Central Government promulgated on 16.9.1958, the Public Premises (Eviction of Unauthorized Occupants) Act, 1958 to provide for eviction of unauthorized occupants from public premises assessment of damages for unauthorized occupation and other incidental matters. 4. It has been contended by Mr. Sen, learned Advocate for the appellant that the claim under the certificate was time barred as admittedly the Certificate was issued long after the lapse of three years when the alleged damages became due. 4. It has been contended by Mr. Sen, learned Advocate for the appellant that the claim under the certificate was time barred as admittedly the Certificate was issued long after the lapse of three years when the alleged damages became due. Reliance was placed on the decision of New Delhi Municipal Committee vs. Kalu Ram, AIR 1976 SC 1637 , wherein it was held that the word payable in section 7 (of 1958 Act) in the context in which it occurs, means legally recoverable. The court further observed 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. The court obviously had in mind the article 110 of the Limitation Act of 1908 (Article 52 of Limitation Act, 1963) which provided for recovery of rent a limitation of three years to be computed from the time the arrears become due. 5. The position thus is that when the claim under section 7 of Public Premises (Eviction of unauthorized persons) Act 1958 is not legally recoverable under the provisions of the Limitation Act, such amount is not payable thereunder. Accordingly no certificate can be issued for such barred amount which is not legally recoverable and any certificate, if issued, will be invalid in law. In the case before us, the claimant is the Central Government and for any suit by or on behalf of the Central or State Government the limitation under Article 149 of 1908 Act (Article 112 of 1963 Act) is sixty years (thirty years under 1963 Act) from the date when the arrears become due. At the time the present certificate was filed, the claim was not barred by time as in above cited case, and, in consequence it cannot be said that the amount was irrecoverable in law or the certificate was for that reason invalid. 6. Mr. Banerjee, learned advocate for the respondent has referred to section 56 of the Bengal Public Demands Recovery Act, 1913. This section applies to proceedings after the filing of the certificate which is to be treated as decree of a civil court and net the filing of tile certificate which is subject to the provisions of the Limitation Act or specific provisions of other relevant Acts or rules. 7. This section applies to proceedings after the filing of the certificate which is to be treated as decree of a civil court and net the filing of tile certificate which is subject to the provisions of the Limitation Act or specific provisions of other relevant Acts or rules. 7. It has been next contended that in view of the decree of the earlier suit, the demand under the fresh certificate under the Public Premises (Eviction of Unauthorized Occupants) Act, 1958 was barred. We have seen above that the assessment of damages was made under the Public Premises (Eviction of Unauthorized Occupants) Act, 1958, which again was declared ultra vires in Northern India Caterers vs. State of Punjab, AIR 1967 SC 1581 . Thereafter Public Premises (Eviction of Unauthorized Occupants) Act, 1971 was brought into force on the 23.8.1971, and under the provisions of section 20 of the said Act, all actions taken under the 1958 Act were to be deemed as valid and effective as if such thing or action was done or taken under the corresponding provisions of the 1971 Act. In view of the above position, the demand made under the 1958 Act continued to be a valid and legally enforceable demand. 8. It has been submitted that the decision in the earlier Title Suit No.16 of 1955 was resjudicata in respect of the assessment and demand made under the 1958 Act. It would, however, appear from the judgment, which is Ext.5 that no decision was arrived at on merits. The assessment as also the certificate was declared ultra vires on the basis that the 1958 Act whereunder the assessment as also the certificate were made or filed was declared ultra vires and there was thus no decision on merits. The present assessment we are concerned with is under the 1958 Act and accordingly it cannot be said that the decision of the said title suit could operate as resjudicata. 9. It has further been contended that the present certificate is invalid inasmuch as it has been issued to a Collector when the claim was for damages in respect of use of certain premises. It appears that under the provisions of section 10D of the 1958 Act, the amount is to be recovered as an arrear of land revenue. 9. It has further been contended that the present certificate is invalid inasmuch as it has been issued to a Collector when the claim was for damages in respect of use of certain premises. It appears that under the provisions of section 10D of the 1958 Act, the amount is to be recovered as an arrear of land revenue. That being so, the certificate to the Collector is not invalid as the damages are to be treated regarded as arrear of land revenue. 10. It has been further contended on behalf of the respondent that the present suit is not maintainable in view of the provisions of section 34 of the Act. Section 34 provides that no civil court will have jurisdiction to entertain a suit relating to cancellation or modification of a certificate unless certain specified conditions are satisfied which are that the certificate-debtor is to bring a suit within six months from the service of notice required by section 7 of the Bengal Public Demands Recovery Act or where he filed an objection under section 9 denying liability from the date of determination of the objection or of the appeal if any therefrom. If any of those conditions as is applicable is complied with, or there are reasons acceptable to court for omission to take action under section 9, then only a certificate-debtor can bring a suit in a civil court. It appears that no such steps were taken by the certificate-debtor but even so as the suit is primarily for declaration that the certificate was invalid in law, section 34 does not appear to operate as a bar. 11. It has been next submitted by the appellant that in any event he is entitled to a credit of Rs. 700/- deposited by him to the credit of the Government in the earlier certificate. It would appear from a perusal of Ext.6 series that in all a sum of Rs. 620/- has been deposited by the plaintiff to the credit of the Union of India in Case No. 2 HR (EA) of 1953-54. These challans are already on record. Accordingly, in my opinion, the plaintiff is entitled to get a credit of this amount against the demand of the Government for the amount under certificate. The certificate officer will give credit of the amount in the certificate accordingly. 12. These challans are already on record. Accordingly, in my opinion, the plaintiff is entitled to get a credit of this amount against the demand of the Government for the amount under certificate. The certificate officer will give credit of the amount in the certificate accordingly. 12. The appeal is accordingly allowed in part to the extent indicated above and the certificate officer is restrained from recovering any amount in excess of the amount under the certificate after giving the plaintiff credit for the amount of Rs. 620/-. The Certificate Officer is further directed to remit the amount lying in credit as aforesaid to the Estates Manager, Government of India, 5, Esplanade East, Calcutta. 13. There will be no order as to costs.