JUDGMENT
Sanjay Kishan Kaul, J.
1. Respondent No. 1 was an employee of the petitioner Council and in that capacity was allotted a government accommodation. The allotment was cancelled on 03.06.1983 on the ground of subletting. However, the premises were vacated by respondent No. 1 only on 16.10.1991.
2. The proceedings for recovery of damages under Section 7(2) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter to be referred to as, `the said Act’ ) was, however, initiated only on 14.08.1992. The estate officer in term of the order dated 26.07.1995 held that the petitioner Council was entitled to recover damages only for a period period of three years.
3. The petitioner preferred an appeal and the appeal was beyond time by about three months. The appellate authority held that there was no sufficient cause to condone the delay and even on merits held that the recovery of damages beyond the period of three years would not be proper. The order of the estate officer was upheld.
4. The petitioner Council has impugned the said decision by filing the present writ petition.
5. The short controversy, which thus arises for consideration, is whether the petitioner Council is entitled to recover damages against respondent No. 1 from the date the allotment was cancelled or for a period of only three years prior to the proceedings under the said Act.
6. Learned counsel for the petitioner referred to provisions of the Limitation Act, 1963 ( hereinafter to be referred to as, `the Limitation Act’ ) more specifically the definition clause in Section 2(j), which is as under:
” 2. Definitions.-
… … … …
(j) ”period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ”prescribed period” means the period of limitation computed in accordance with the provisions of this Act;”
It was, thus, submitted that the proceedings under the said Act are neither any suit, appeal or application governed by the Limitation Act and the period of three years would not govern the claim for damages.
7. The submissions of both learned counsel for the parties are more or less relying on the same judgments and the question is one of interpretation.
8. The first judgment in this behalf is in the case of New Delhi Municipal Committee v. Kalu Ram and Anr., where the Supreme Court was dealing with the provisions of Section 7(1) of the said Act. In order to appreciate the controversy, it is necessary to reproduce both sub-section (1) and sub-section (2) of Section 7 of the said Act, which are as under:
” 7. Power to require payment of rent or damages in respect of public premises.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such Installments as may be specified in the order.
(2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such Installments as may be specified in the order.
… … … …”
1) In view of the phraseology used in sub-section (1) of Section 7 where the words ‘rent payable’ were used, the Supreme Court in Kalu Ram’s case (supra) observed that the word ‘payable’ is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. It was, thus, held that the word ‘payable’ generally means that which should be paid and in case of the dispute being raised and the estate officer determining the amount payable, if the recovery of any amount is barred by the law of limitation, it would be difficult to hold that the estate officer could still insist that the said amount was payable. It was, thus, held that Section 7 of the said Act only provided a special procedure and does not constitute a source or foundation of a right to claim debt otherwise time barred in view of the word used ‘payable’ which would mean ‘legally recoverable’.
2) Learned counsel for the petitioner, however, sought to distinguish the said judgment by reference to a judgment of the Division Bench of the Madhya Pradesh High Court in L.S. Nair v. Hindustan Steel Ltd., Bhilai and Ors., where the ramification of sub-section (2) of Section 7 of the said Act was dealt with. The judgment in Kalu Ram’s case (supra) was cited and it was observed in para 10 as under:
”10. It was also submitted that the recovery of damages for a period beyond 3 years was time barred. The Limitation Act has no application to proceedings before the Estate Officer who is not a Court. Learned counsel for the petitioner relied upon the case of Kalu Ram v. New Delhi Municipal Committee, (1965) 67 Pun LR 1190 in support of his submission. There is nothing in S.7(2) which authorises the Estate Officer to assess the damages on account of the use and occupation of the premises and by order require the person to pay the damages, to show that there is any rule of limitation by which the Estate Officer is governed. As the Limitation Act has no application to proceedings before the Estate Officer and as the jurisdiction of Civil Court is entire by barred in matters governed by the Public Premises Act, it is difficult to accept the argument that there is any period of limitation for recovery of damages. The Punjab case on which reliance was placed, construed the words ‘rent payable’ as they occurred in S. 7 (i) of the Public Premises Act, 1958, and construed them to mean ‘rent legally recoverable by a suit’. The case has no application for construing S. 7(2) of the Public Premises Act, 1971, which deals with the power to assess and order payment of damages and where the language used is entitled different. Further S. 15 of the 1971 Act now bars a suit and the remedy under the Act is the only remedy which can be availed of. In such a situation, the Limitation Act cannot be inferentially applied to proceedings before the Estate Officer.”
3) A reading of the aforesaid passage would, thus, show that a distinction was made between the provisions of sub-section (1) and sub-section (2) of Section 7 of the said Act since the word ‘payable’ is not used in sub-section (2) while determining the damages. It was also noticed that Section 15 of the said Act bars the jurisdiction of civil court and the only remedy available is under the said Act. Thus, the Limitation Act could not be applied inferentially.
4) The aforesaid judgment of the Division Bench of the Madhya Pradesh High Court was considered by learned Single Judge of this Court in Nandram and Ors. v. Union of India and Ors., and the conclusion was reached that in view of the Act being a special Act and provisions being made for a period of limitation wherever necessary, the provisions of the Limitation Act could not be made applicable to the said Act. It may, however, be noticed that Kalu Ram’s case (supra) was not cited, though the judgment in L.S. Nair’s case (supra) cited discusses the judgment in Kalu Ram’s case (supra).
5) Learned counsel for the respondents while relying upon the judgment in Kalu Ram’s case (supra) also referred to provisions of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971 ( hereinafter to be referred to as, ‘the said Rules’ ) where Rule 8 deals with the assessment of damages. Sub-rule (c) of Rule 8 of the said Rules provides that the rent, which would have been realised from the premises had it been let for rent, could form the basis for such determination of damages. The said Rule 8 is as under:
” 8. Assessment of damages.- In assessing damages for uanuthorised use and occupation of any public premises the estate officer shall take into consideration the following matter, namely:
(a) the purpose and the period for which the public premises were in unauthorised occupation;
(b) the nature, size and standard of the accommodation available in such premises;
(c) the rent that would have been realised if the premises had been let rent for the period of unauthorised occupation to a private person;
(d) any damage done to the premises during the period of unauthorised occupation;
(e) any other matter relevant to the premises for the purpose of assessing the damages.”
It was, thus, contended that the same principles being applicable for determination of damages as for determination of rent, Kalu Ram’s case (supra) would apply on all fours.
6) The attention of this Court was also invited to the judgment of learned Single Judge of this Court in Inderjeet Singh v. NDMC, where relief was granted to the petitioner. However, the relief was granted on the ground that in view of the notices issued, fresh proceedings were started after quashing of the earlier proceedings. It was observed in para 13 as under:
”13. A reading of the aforesaid provision would show that the expression payable has been used in sub-section (1) in the context of arrears of rent which was analysed in the judgment of the Kalu Ram’s case (supra). In sub-section (2), there is no such expression used and what is prescribed is assessment of damages on account of use and occupation of such premises and the requirement of such person to pay damages within such time and in such Installments as may be specified in the order. It is the expression ‘payable’ which was interpreted in the case of Kalu Ram’s case (supra). In Nand Ram and Ors. Case (supra), the court was seized with the issue of the unauthorised occupation of the premises and it was held that there could be no plea of adverse possession or applicability of the provisions of the Limitation Act to the special Act. Respondents No. 1 and 2 thus cannot be debarred from recovering damages.”
7. Relief was, however, granted on the basis that in view of there being a long time gap of the respondent in taking action, the time period for which recovery can take place could only be three years prior to initiation of the proceedings against the original allottee since the petitioner only stepped into the shoes of the original allottee. It was made clear that the concession was given to the petitioner therein in view of the gross delay on the part of the respondent in re-initiation of the proceedings for damages.
8. This aspect was once again raised in CWP No. 2507/2003 titled ‘Shri Vijay Kumar Rajput v. NDMC and Anr.’ decided on 09.04.2003 where these judgments were discussed and the plea of the Limitation Act was again rejected noticing that Inderjeet Singh’s case (supra), in fact, dealt with the particular facts of the case granting relief on account of the delay in initiation of the proceedings.
9. One more judgment which has been referred to by learned counsel for the petitioner is in Mr. France B. Martins and Anr. v. Mrs. Mafaida Maria Teresa Rodrigues, 1986-99 CONSUMER 5089 (NS) where the Supreme Court held that in absence of the provisions of the Limitation Act being made applicable to the proceedings under the Consumer Protection Act, the proceedings not being suit, appeal or an application, the provisions of the Limitation Act would not apply.
10. The second aspect raised in the present proceedings also arise from rejection of the case of the petitioner on the ground of limitation.
11. I have considered the submissions advanced by learned counsel for the parties.
12. It may be appropriate to first consider the issue of limitation, which has been held against the petitioner by the appellate authority. There is no doubt that there was a delay about three months period of time in filing the appeal. However, for the seasons stated in the grounds of appeal, it was not such an inordinate delay, which could not have been condoned, especially given the facts and circumstances of the case. I am, thus, unable to accept the conclusion of the appellate authority that the petitioner Council ought to have been non-suited on the ground of limitation.
13. The matter does not rest at this since the appellate authority has also decided the matter on merits affirming the order of the estate officer.
14. There is no doubt that in Kalu Ram’s case (supra), the Supreme Court while examining the provisions of sub-section (2) of Section 7 of the said Act came to the conclusion that the period of limitation would be three years. However, the said decision arose on account of the phraseology used where the word ‘payable’ has been used which was construed to mean what was ‘legally recoverable’. The phraseology used in sub-section (2) of Section 7 of the said Act is quite different, which is for the determination of damages. It is also to be noticed that the introduction of Section 15 in the said Act bars the remedy of a civil suit and, thus, it is only the proceedings for determination of damages under Section 7(2) where the amount has to be quantified.
15. The distinction between the provisions of sub-section (1) and sub-section (2) of Section 7 of the said Act was noticed by the Division Bench of the Madhya Pradesh High Court in L.R. Nair’s case (supra) as also the consequences arising from Section 15 of the said Act, which came into force subsequently to the initiation of proceedings under the earlier enactment against Kalu Ram. It was held that the judgment in Kalu Ram’s case (supra) would not apply to the quantification of damages under sub-section (2) of Section 7 of the said Act. This judgment has been followed by learned Single Judges of this Court in Nandram’s case (supra), Inderjeet Singh’s case (supra) and Shri Vijay Kumar Rajput’s case (supra).
16. In Inderjeet Singh’s case (supra), relief was granted only on the basis of the facts of the case and not on the principle of applicability of the Limitation Act. Since there was inordinate delay in initiation of the proceedings against the original a alottee and the petitioner had stepped into the shoes of the original allottee, it was considered appropriate to confine the period of three years when the proceedings were re-initiated on earlier proceedings being quashed. This fact is specifically noticed in Shri Vijay Kumar Rajput’s case (supra). I am, thus, unable to accept the conclusion arrived at by the estate officer and the appellate authority that no damages could have been recovered beyond the period of three years by the petitioner on account of applicability of the Limitation Act and the impugned orders are set aside to that extent.
17. The only question in the end, which has to be considered, is whether in the given facts and circumstances of the case, the quantification of damages is liable to be restricted to three years or any larger period of time as was done in Inderjeet Singh’ case (supra). Learned counsel for respondent No. 1 referred to the fact that the original respondent No. 1 had passed away and only the legal heirs were on record. The damages except for the period of three years already stood appropriated and there was no estate falling to the share of legal heirs from the hands of the deceased respondent No. 1.
18. Learned counsel for the petitioner was not able to give any satisfactory explanation as to why the proceedings for recovery of damages were initiated on 14.08.1992 even though the allotment of the petitioner was cancelled on 03.06.1983. It, thus, too almost more than nine years for initiating proceedings much less the assessment of damages which took place on 26.07.1995. Thus, even if provisions of the Limitation Act do not apply, an authority must act expeditiously in taking out proceedings for recovery of damages.
19. In view of this unexplained delay as also the factum of late respondent No. 1 having vacated the premises on 16.10.1991 and respondent No. 1 being no more alive and survived by only the legal heirs, I am of the considered view that in the given facts of the case the quantum of damages for a period of three years prior to the proceedings cannot be said to be erroneous. In view thereof, I am inclined to uphold the conclusion arrived by the estate officer and the appellate authority though not for the reasons set out by the said authority. Thus, only the reasoning is liable to be set aside and not the conclusion.
20. In view of the aforesaid facts, the writ petition is disposed of in the aforesaid terms leaving the parties to bear their own costs.