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2011 DIGILAW 172 (CAL)

Bay Island Hotel Limited v. Lieutenant Governor

2011-02-04

SANJIB BANERJEE

body2011
JUDGMENT 1. The challenge by way of the present petition under Article 227 of the Constitution of India is to an order dated September 3, 2010 passed by the suit Court on an application under Order XIV Rule 2 of the Code of Civil Procedure. Two principal grounds have been canvassed by the petitioner company, which is the seventh defendant in the suit. It is submitted that the suit is ex facie barred by limitation by reason of Article 58 of the Schedule to the Limitation Act, 1963. THE other ground is that in view of the concluded decisions in earlier writ proceedings instituted by the plaintiff in the suit and the petitioner herein, the matters in issue in the suit could no longer be proceeded with by reason of the principles of res judicata. 2. The claim in the plaint is that the plaintiff came to these islands in or about 1970 and took possession of a small plot of land at Phoenix Bay whereupon he made a construction. The plaintiff has referred to ah eviction case instituted by the revenue authorities against the plaintiff in 1974. There is considerable doubt as to the authenticity of the documents in relation to the 1974 case that the plaintiff has relied upon. The plaint has recorded the institution of subsequent eviction proceedings in 1986 and in 1990. The plaintiff has claimed that divers representations were made by the plaintiff to the revenue and other authorities for regularization of the plaintiff's possession in respect of the land since the plaintiff was entitled to the benefit under the 1987 scheme as a pre-1978 encroacher. The plaint narrates the 1974 eviction proceedings, the 1986 eviction proceedings and the 1990 execution order. Against the order passed in execution of the eviction order on June 21, 1990, the plaintiff carried a writ petition to this Court and such application was not entertained on the ground that the earlier order of eviction of October 17, 1986 had not been questioned before any competent forum. The order dated September 19, 1995 passed in Co. No.15051(W) of 1990 recorded that the order impugned in such proceedings was merely for the execution of the order that had earlier been passed. This Court held that unless the order of eviction was set aside the same had become binding and executable. 3. The order dated September 19, 1995 passed in Co. No.15051(W) of 1990 recorded that the order impugned in such proceedings was merely for the execution of the order that had earlier been passed. This Court held that unless the order of eviction was set aside the same had become binding and executable. 3. In view of the observations of the writ Court and the appellate Court, the plaintiff preferred an appeal before the Sub-Divisional Officer against the order of eviction on 1986. The appeal was dismissed and a second appeal was preferred. The plaint says that the second appellate authority refused to take any action thereon. 4. Paragraph 9 of the plaint narrates that the plaintiff came to know that a larger piece of land, that included the plaintiffs small plot, had apparently been allotted by the Administration to the petitioner herein. Sometime in the beginning of the year 2006 the plaintiff received a notice from the petitioner herein by which the plaintiff was informed that a writ petition had been filed by the petitioner herein for a direction on the Tehsildar to execute the order of eviction. The suit was filed in March, 2006. The writ petition carried by the petitioner herein seeking a direction on the Teshildar to execute the order of eviction was disposed of on June 09, 2006 by directing the relevant official to dispose of the proceedings before it. These two dates are crucial. There is some dispute as to what transpired thereafter. The petitioner insists that on August 30, 2006 the plaintiff was evicted from the suit premises. The plaintiff contests such contention and says that though a part of building put up by the plaintiff has been demolished, it cannot be said that the plaintiff has been altogether dispossessed. The petitioner has relied on a report dated September 14, 2009 filed by the Commissioner appointed under Order XXXIX Rule 7 of the Code in the suit from which it is evident that the plaintiff is no longer in possession of the land. However, nothing turns on the present position as to possession of the land which is the subject-matter of the suit. 5. There have been several rounds of litigation between the principal parties to the present petition. The plaintiff filed the first writ petition in the matter in the year 1990 challenging the order passed in execution of the eviction order. However, nothing turns on the present position as to possession of the land which is the subject-matter of the suit. 5. There have been several rounds of litigation between the principal parties to the present petition. The plaintiff filed the first writ petition in the matter in the year 1990 challenging the order passed in execution of the eviction order. One of the prayers in such application was for the issuance of a writ of mandamus commanding the respondent authorities to give no further effect to the order of eviction passed in the year 1986. That petition culminated in the order of September 19, 1995 as referred to above. In between, in the year 1994, the suit land as part of a larger area at Phoenix Bay was allotted in favour of the petitioner herein by the Deputy Commissioner. The allotted land measures 10.800 Sq.m. at Survey No.1951/12 situated at Marine Hill. The purpose of the allotment was for the construction of a hotel thereat. There is now a hotel put up by the petitioner herein at the site. The disputed land forms a part of the land covered by Survey No. 1,951/12. The petitioner desires that such eyesore be removed from it precincts. 6. The plaintiff carried the order of September 19, 1995 in appeal but with no success. THE special leave petition filed from the Division Bench order was withdrawn upon it being recorded in the Supreme Court order that the plaintiff would pursue the right of statutory appeal available to the plaintiff. The statutory appeal under Regulation 28 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred as the said Regulations) was dismissed by an order of April 24, 2000. The statutory appeal under Regulation 28 of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 (hereinafter referred as the said Regulations) was dismissed by an order of April 24, 2000. The plaint relating to the suit says that the plaintiff's entreaties to the revenue authorities to regularize the small plot of land in the plaintiff's favour stood effectively rejected in the year 2006 when, according to Paragraph 15 of the plaint, "...in order to deprive the plaintiff from gaining any benefit out of the said scheme the authorities on 20th January, 2006 informed the plaintiff that the suit land cannot be regularized as the regularization scheme is closed." The plaintiff has pleaded at Paragraph 22 of the plaint that the cause of action for the suit arose in the year 1970 when the plaintiff encroached on the land; then in 1974 when the Tehsildar initiated the revenue case against the plaintiff; again in 1986 when a fresh revenue case was initiated against the plaintiff; in March, 1988 when the plaintiff filed an application for regularization of the land in the plaintiff's favour pursuant to the scheme; next on January 11, 1990 when the plaintiff was called by the revenue authorities to produce documents relating to his claim; on June 21, 1990 and September 19, 1995 when the order for executing the eviction order was made and the High Court dismissed the petition challenging the action on the ground that an appeal from the 1986 eviction order had not been filed; on April 24, 2000 when the Sub-Divisional Officer rejected the plaintiff's appeal; and, on January 20, 2006 when the Assistant Commissioner (S), Port Blair, issued a notice informing the plaintiff that the suit land could not be regularized in favour the plaintiff as the scheme had been closed. 7. It is such Paragraph 22 of the plaint which is made the principal ground to question the maintainability of the suit. The petitioner herein says that the principal relief claimed and the primary objective of the suit is to establish the plaintiff's title in respect of the suit property and seek a declaration relating thereto. 7. It is such Paragraph 22 of the plaint which is made the principal ground to question the maintainability of the suit. The petitioner herein says that the principal relief claimed and the primary objective of the suit is to establish the plaintiff's title in respect of the suit property and seek a declaration relating thereto. The petitioner refers to Article 58 of the Schedule to the Limitation Act, 1963 which is the residuary article in the relevant part and provides that to obtain a declaration of a kind not specified in the two previous articles, the clock would begin to run when the right to sue first accrues. The petitioner lays emphasis on the expression "first accures." The petitioner says that as is evident from Paragraph 22 of the plaint, if the revenue proceedings were instituted in the year 1974, then limitation would have set in and the claim of the plaintiff would have been barred after the expiry of three years therefrom. 8. The petitioner suggests that even if the alleged revenue case of 1974 is disregarded since there is considerable cloud as to the authenticity of documents produced in support thereof, it is undeniable that the eviction order was passed in the year 1986 and that such order has become final. The petitioner contends that since the suit has been filed under Regulation 202 (7) of the said Regulations, the period of limitation should be reckoned from the date on which the order of eviction was passed in 1986. The petitioner asserts that since it is the undisputed position that the order of eviction was made in the year 1986 and the suit was filed some 20 years later, there was no question of the suit being entertained or proceeded with once such fact was pointed out. The petitioner insists that the Court below ought to have rejected the plaint as the suit was barred by law within the meaning of Order VII Rule 11 (d) of the Code. The petitioner insists that the Court below ought to have rejected the plaint as the suit was barred by law within the meaning of Order VII Rule 11 (d) of the Code. The petitioner submits that in view of the order of eviction passed in the year 1986 having attained finality upon the appeal therefrom being dismissed in the year 2000 by the Sub-Divisional Officer and the second appeal not being entertained, in any event, the claim sought to be prosecuted by way of the suit could not have been entertained since the issue was barred by the principles of res judicata. It is the petitioner's contention that in the myriad proceedings under Article 226 of the Constitution of India having been taken up by this Court and no order having been passed in favour of the plaintiff despite prayers to such effect being made, a past and concluded issue should not have been permitted to be reopened and the suit cannot be allowed to progress any further. 9. In such connection, the petitioner has placed reliance on an order dated March 26, 2007 passed on another writ petition filed by the plaintiff and the appellate order thereon passed on March 31, 2008. The relevant writ petition on which the order dated March 26, 2007 was passed, was filed by the plaintiff complaining of the high-handed action on the part of the revenue authorities in threatening to take steps to evict the plaintiff notwithstanding the pendency of the suit launched by the plaintiff. 10. The writ petition was disposed of by noticing that the suit had been filed but without adjudicating upon the legal issue raised since the Regulations contained an appellate provision for such purpose. The appeal from the order dated March 26, 2007 was preferred by the present petitioner and the appellate Court found that since the suit was already in place, there was no necessity of issuing any direction on the Sub-Divisional Officer to entertain the matter. It is in such context that some of the provisions of the said Regulations need to be noticed. Regulation 38 of the said Regulations vests all land in these islands in the Administration. Regulation 202(1) of the said Regulations permits the Tehsildar to take steps against any person who has encroached on any open or abadi land belonging to the Administration. Regulation 38 of the said Regulations vests all land in these islands in the Administration. Regulation 202(1) of the said Regulations permits the Tehsildar to take steps against any person who has encroached on any open or abadi land belonging to the Administration. Sub-section (7) of Regulation 202 protects the right of the person proceeded against under sub-section (1) to institute a civil suit. Sub-section (8) of the same Regulation, in effect, provides that the revenue authorities would lose jurisdiction over the matter in the sense that they cannot act in furtherance of the steps taken under sub-regulation (1) if a suit as recognized in sub-regulation (7) has been instituted. 11. Regulation 202(7) is an exception to the general rule recognized in Regulation 204 of the said Regulations which expressly precludes a Civil Court from entertaining any claim in respect of the matters covered by the said Regulations unless otherwise specified. 12. Before embarking on any interpretation of the relevant provisions in greater detail, it is necessary to first see the effect of sub- regulation (7) of Regulation 202 of the said Regulations. Sub-regulation (7) does not confer any right on the notice under Regulation 202(1) to institute a suit in respect of the same plot of land which is the subject- matter of the action under sub-regulation (1). The relevant sub-regulation only protects the suit, in the sense that it insulates such an action brought before a Civil Court against the general bar that is recognized in Regulation 204 of the said Regulations. In other words, the authority to institute a civil suit is not conferred by Regulation 202(7), but it only preserves the general right of the institution of civil action in respect of a matter' covered by the said Regulations, since unless such special exception had been carved out, the civil suit would have been barred by the general sweep of Regulation 204 of the said Regulations. Whatever is said in this judgment must be prefaced with the caveat that the observations here are restricted to the immediate purpose, i.e. the propriety of the order that has been questioned in this jurisdiction, and such observations are not to be read out of context in the subsequent course of the suit. 13. Whatever is said in this judgment must be prefaced with the caveat that the observations here are restricted to the immediate purpose, i.e. the propriety of the order that has been questioned in this jurisdiction, and such observations are not to be read out of context in the subsequent course of the suit. 13. Since the petitioner herein has not dwelt at any great length on the purported eviction proceedings initiated by the revenue authorities in 1974, such aspect may now be ignored. But in 1986 there was surely a notice issued and steps were thereafter taken by the revenue authorities that culminated in the order by which the plaintiff was found to be in unauthorized occupation of the land and liable to be evicted therefrom. It is necessary to assess the scope of such order in the context of both grounds canvassed by the petitioner herein. At the relevant time in the year 1986, there was no scheme for the regularization of the encroachment of the pre-1978 encroachers on revenue land. It was on such anvil that 1986 eviction order was made. The eviction order was made the subject-matter of a belated appeal which failed, but again the scope of that appeal was as to the correctness of the order passed in 1986 requiring the plaintiff to be evicted from the land at a time when there was no scheme to regularize the possession of the pre-1978 encroachers. That a second appeal failed, hardly alters the position. 14. If a person had wrongfully taken possession of any revenue land and was not entitled to preserve his occupation in respect thereof, as was the case prior to 1987 scheme being put in place, such person was liable to be evicted. Notwithstanding the valid order of eviction remaining outstanding, the effect of the; 1987 scheme was that a pre-1978 encroacher on Government land would be protected and his possession in respect thereof regularized. It appears from the averments in the plaint that the plaintiff applied for regularization of the land which is the subject-matter of the suit. It is also evident that there was no formal rejection of his application and it was only upon the letter of January 20, 2006 that the plaintiff was informed that his case could no longer be considered since the regularization scheme had been closed. It is also evident that there was no formal rejection of his application and it was only upon the letter of January 20, 2006 that the plaintiff was informed that his case could no longer be considered since the regularization scheme had been closed. The essence of the suit is the plaintiff's claim to the land in question. The plaintiff's right or claim in respect of the land does not flow only from the plaintiff's encroachment thereof. The plaintiffs right flows from the encroachment said to have been made prior to the year 1978 coupled with the benefit conferred by the regularization scheme of 1987. The plaintiff's right to institute a suit-founded on the plaintiffs title on the twin facts of the plaintiffs encroachment of government land prior to 1978 and the denial of the plaintiffs entitlement to the benefit under the 1987 scheme-did not accrue prior to the rejection of the plaintiff's application in such regard which was effectively made by the communication of January 20, 2006 that informed the plaintiff that the regularization scheme had been altogether closed. The suit is not directed against the order of eviction of 1986, the suit is in furtherance of the plaintiff's title to the land which the plaintiff has asserted. 15. The general rule is that on an application in the nature of demurer, the allegations in the plaint have to be taken as correct. A demurer is a challenge by the defendant on the basis that even if the allegations contained in the plaint are assumed to be correct, the plaintiff would not be entitled to the reliefs claimed. A decision on any preliminary issue has to be made in such light. 16. In support of the petitioner's argument under Article 58 of the schedule to the Limitation Act, a judgment reported in 2009 (1) Cal LJ 160 (Japan Kumar Mukherjee v. Nirmal Kanti Guha) has been placed. Paragraph 10 of the report has been relied upon where the Division Bench opined that an action for declaration of title in respect of an immovable property had to be instituted within a period of three years from the time when the right to sue first accrued. Paragraph 10 of the report has been relied upon where the Division Bench opined that an action for declaration of title in respect of an immovable property had to be instituted within a period of three years from the time when the right to sue first accrued. The decision was rendered on the facts of the case and the Court noticed that despite the licence in that case having been revoked and proceedings under Section 41 of the Presidency Small Causes Court Act having been instituted in the year 1998, the plaintiff therein launched the suit only in the year 2002. What is crucial in the period prescribed as to limitation is, generally, the entry in the final column. The time begins to run in every case according to the stipulation in the final column. Article 58 permits any suit for declaration, other than those covered by the earlier articles, to be instituted within a period of three years from the date when the cause of action first accrued. It is, thus, the expression "first accures" that is of great significance. When will the cause of action for instituting a suit for declaration as to title in respect of an immovable property first accrue? It cannot be said that the cause of action would first accrue when the slightest cloud on the title of the plaintiff is attempted to be raised. Say, for instance, that a passer-by whispers that the immovable property alongside belongs to such passer-by and not to the known owner thereof. It cannot be said that in such a casual assertion having been made by a passer-by, it is incumbent on the owner to institute a suit asserting his the within three years from the utterance of the irrelevant statement. The cause of action would first accrue when there is a threat which has the possibility of dislodging the plaintiff's title or undoing the apparent right enjoyed by the plaintiff. As in the reported decision of Tapan Kumar Mukherjee, the cause of action was found to first accrue upon the proceedings being instituted before the Small Causes Court under Section 41 of the relevant Act. The period of limitation has to be reckoned from a tangible threat to or denial of the plaintiff's title which, unless proceeded against, may result in the plaintiff's loss of title. 17. The period of limitation has to be reckoned from a tangible threat to or denial of the plaintiff's title which, unless proceeded against, may result in the plaintiff's loss of title. 17. In a sense, the point of limitation that the petitioner herein has raised is no more than a bogey. The plaintiff claims in the plaint that he was entitled to the benefit of the 1987 regularization scheme and the rejection thereof on the basis of the Administration's assertion that the scheme had been closed was communicated to the plaintiff by a letter of January 20, 2006. Since the suit was instituted in March of the same year, it cannot be said that the suit was barred by the law of limitation. 18. As to the other aspect of the challenge, it must be noticed that the plaintiff's title to the land in question had never been adjudicated upon or adversely pronounced on by this Court in course of the several proceedings between the parties. To start with, the scope of assessment in an application under Article 226 of the Constitution and the power of judicial review available thereunder is to look into the decision-making process rather than the decision itself. In any event, by the appellate order of March 31, 2008 passed on the writ petition carried by the plaintiff complaining of the high-handed action of the Tehsildar in seeking to evict the plaintiff from the suit premises despite the pendency of the suit, there was a recognition that the plaintiff was entitled to canvass such matter by way of a civil suit, subject to the other counts of maintainability. That is not to say that by virtue of the appellate order of March 31, 2008 the question of the maintainability of the suit could not be raised, but in the appellate order finding that there was no necessity of requiring the Sub- Divisional Officer to entertain the plaintiffs complaint against the Teshildar in view of the pendency of the suit, the subject of the plaintiff's grievance stood effectively transferred from the writ proceedings to the suit Court. The order dated September 19, 1995 and the appellate order therefrom did not conclusively pronounce on any issue; such orders must be seen to have not entertained the plaintiff's grievance then in view of the plaintiff having slept over the eviction order of 1986. The order dated September 19, 1995 and the appellate order therefrom did not conclusively pronounce on any issue; such orders must be seen to have not entertained the plaintiff's grievance then in view of the plaintiff having slept over the eviction order of 1986. Neither order touched upon the plaintiff's rights under the 1987 regularization scheme governing pre-1978 revenue land encroachers. The petitioner has cited a judgment reported in 2003(6) SCC 675 (Surya Dev Rai v. Ram Chander Rai) and has placed, inter alia, Paragraphs 25 and 34 of the report in support of the argument that notwithstanding the emasculating amendment to Section 115 of the Code, the revisional jurisdiction of High Court had not really been curbed since the same authority can be exercised in the supervisory jurisdiction under Article 227 of the Constitution. The petitioner has placed particular emphasis on the observation of the Supreme Court that an application under Article 226 has to be carried by a citizen complaining of breach of any fundamental right; while the power under Article 227 can also be exercised suo motu by the High Court. 19. There is no dispute as to the width of the authority available to the High Court under Article 227 of the Constitution. But there are also self-imposed rules of restraint. As has been said, Article 226 of the Constitution exists for a citizen and Article 227 exists for the system that is the judiciary. Every erroneous order is not subject to correction under Article 227 if such order does not result in manifest injustice which cannot otherwise be corrected. In the present case, though, an order has been made on the preliminary issues framed pursuant to a specific direction of this Court in course of an earlier revisional application, the petitioner herein has not been altogether left without any remedy. In the event the suit is decided against the petitioner, the appeal from the decree may also include the challenges to the order which have been made the subject-matter of the present revisional application. 20. There does not appear to be any gross miscarriage of justice in the order impugned having been passed. There is no material irregularity committed by the Court below in arriving at the conclusion recorded on the preliminary issues. 20. There does not appear to be any gross miscarriage of justice in the order impugned having been passed. There is no material irregularity committed by the Court below in arriving at the conclusion recorded on the preliminary issues. The trial Court has proceeded on the basis of the averments in the plaint and has regarded the notice dated January 20, 2006, by which the plaintiff's plea for regularization of the land stood effectively rejected, as the starting point for calculating the period of limitation. There does not appear to be any grave error in the approach of the trial Court in assessing the matter. The petitioner however, has questioned another aspect of the order by which an observation was made that the petitoner's allegations relating to the alleged forgery of the documents pertaining to the 1974 revenue proceedings could not be given much credence since the petitioner had not instituted criminal proceedings in such regard. The petitioner has attempted to make too much out of the observation. It goes without saying that while proceedings are pending before a Court and the alleged forged documents remain in the Court's custody, the party complaining' of alleged forgery in the documents cannot carry an independent complaint in such regard to the criminal forum. 21. The order impugned does not call for any interference in this extraordinary jurisdiction. CO. No.003 of 2010 is dismissed. There will be no order as to costs. 22. The suit Court is requested to ensure that the trial of the suit is concluded as expeditiously as possible and preferably within a period of six months from the date of communication of this order. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to the compliance with all requisite formalities.