Harish Tandon, J.:— Sensing that it would be difficult to assail the order on factual matrix and legal pronouncements on the points which were canvassed both before the Estate Officer and the appellate authority, the argument is advanced by Mr. Mitra for the petitioner on the different horizon weeding out certain facts from the respective stands of the parties.
2. Admittedly by an agreement dated 8.8.1997 entered into between the petitioner and the opposite party, the premises in question was let out initially for a period of ten years commencing from 1.5.1998 on payment of monthly rent agreed therein. However, the period can be extended if both the parties agrees on the terms and conditions as may be agreed.
3. It would not be necessary to quote the other terms and conditions embodied in the said agreement except the one which assumes significance and importance on the submissions advanced before this Court.
4. Clause 6 of the agreement contains the intention of the parties that their rights and obligations shall be governed by the West Bengal Provisional Tenancy Act or any act relating to statutory tenancy in force for the time being.
5. It would be relevant to quote clause 6 which runs thus:-
“Save as aforesaid the right and obligations between the parties shall be governed by the West Bengal Provincial Tenancy Act or any Act relating to Statutory Tenancy in force for the time being.”
6. Before the period expired by efflux of time, a notice was caused on the petitioner requiring him to quit and vacate the premises within 30th April, 2008. Having failed to deliver the vacant possession of the property in question, an application was made before the Estate Officer appointed under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (Public Premises Act, for short) to form an opinion that the petitioner is in unauthorized occupation and to initiate a proceeding upon issuing a notice under Section 4 of the said Act.
7. It is also not in dispute that the claim relating to arrears of rent and damages was also made before the Estate Officer by taking out an application under Section 7 of the Act for Rs. 48 lakhs and odd towards rent and Rs. 5,24,000 and Rs. 24 lakhs and odd on account of security and electricity charges.
8. The estate officer having satisfied that the petitioner is an unauthorized occupant issued a notice under Section 4(1) of the Act inviting a reply to a show cause why the order for eviction and a claim under Section 7 of the Act be not allowed in favour of the opposite party. None of the parties have agitated before this Court that the Estate Officer proceeded in violation of the principles of natural justice. It is a matter of record that after affording an opportunity of hearing, the estate officer passed an order of eviction under Section 5 of the said Act and have further allowed an application under Section 7 filed by the opposite party.
9. The petitioner exhausted the remedy provided under Section 9 of the Act by approaching the appellate authority and having aggrieved by the order passed therein have approached this Court under Article 227 of the Constitution of India.
10. From the impugned order, it appears that an appeal was filed beyond the statutory period provided under Section 9 of the Act and the appellate Court held that the appeal is barred by limitation. Had it been a case that the Appellate Court dismissed the appeal on the point of limitation, the sphere of scrutiny would have been limited to that extent. The appellate Court not only held that the appeal is barred by limitation but further proceeded to decide the same on merit and upheld the decision of the estate officer. Neither the opposite party nor the petitioner agitated the point of limitation before this Court and they impliedly accepted the position that the appellate Court also did not find any ground warranting the interference with the order of the estate officer on merit.
11. This Court, however, finds that the decisons of the appellate Court on the point of limitation is not based on reasons except quoting the language employed in Section 9(2)(a) of the Act providing 15 days period of limitation. The appellate Court held that the appeal having filed after a lapse of 48 days from the date of an order, the appeal is barred by limitation.
12. It would be relevant to notice the provisions contained under Section 9 of the Act which provides a right of an appeal from every order of the estate officer made in respect of any public premises under Section 5 or Section 5B or Section 5C or Section 7 to an appellate authority who shall be the District Judge of the district in which the public premises are situated.
13. Clause (a) of sub-section 2 of Section 9 provides 12 days period for preferring an appeal from an order under Section 5 which should reckon from the date of publication of the order under sub section (1) of that Section. It is obligatory on the part of the estate officer to make an order of eviction, on reasons to be recorded therein, if he is satisfied that the public premises is in unauthorised occupation, specifying the date for its vacation by all persons who may be in occupation thereof. A statutory duty is cast on the estate officer to cause a copy of the said order to be affixed on the outer door or some other conspicuous part of the public premises.
14. It is, therefore, clear that the period of limitation shall begin from the date of publication of an order passed under Section 5(1) of the Act and not from the date of an order. There is no whisper in the impugned order of the appellate authority when such publication was made and, therefore, the entire approach on the point of limitation is bad. In absence of any material produced before the appellate Court and any findings on the date of publication required to be made under sub-section (1) of Section 5 of the Act, it cannot be said that the appeal was barred by law of limitation.
15. Coming back to the merit of the case, let me examine whether the petitioner can successfully challenge the concurrent findings of facts and the order of eviction passed by the estate officer and affirmed by the appellate authority.
16. Mr. Surojit Mitra, the learned senior advocate for the petitioner firstly submits that the parties can waive their rights conferred under the statute by executing an agreement which cannot be termed as opposed to public policy. In support of his contention he relied upon a judgment of the Hon'ble Supreme Court rendered in case of Shri Lachoo Mal v. Shri Radhey Shyam† reported in (1971) 1 SCC 619. To elaborate the first point he submits that the public premises Act does not contain non obstante clause and, therefore, the parties are free to agree that the provision of the said Act shall not apply and the tenancy shall be governed by the Rent Restriction Act. Secondly, he argued that the similar agreement have been executed with the other tenants of the premises owned by the opposite party and against one of such tenant a suit for eviction is filed before the Civil Court under the provision of the West Bengal Premises Tenancy Act and, therefore, the present proceeding under the Public Premises Act is not maintainable. Thirdly, he submits that the monetary claims on arrears of rent, electricity charges and damages beyond three years from the date of initiation of the proceeding is barred under the limitation Act and relied upon the chart annexed to an application under Section 7 of the Public Premises Act. Fourthly, he submits that once the rent for the month of May 2008 is accepted by the opposite party after the expiration of the period provided under the agreement, there shall be a new tenancy created upon payment and acceptance of rent and, therefore, a notice under Section 4 of the Public Premises Act which is the foundation of the proceeding is impliedly waived.
17. Mr. Joy Saha, the learned advocate for the opposite party vehemently submits that the premises owned by the public enterprises are exempted from the operation of the West Bengal Premises Tenancy Act and the remedy for eviction can only be taken under the public premises Act. He further submits that the parties can not contract out of the statute and any such clause forbidden by law is void and is not legally enforceable. To buttress the aforesaid submissions he relied upon a judgment of the Hon'ble Supreme Court in case of Devkaran Nenshi Tanna v. Manharlal Nenshi reported in (1994) 5 SCC 681 and unreported judgment of the Hon'ble Supreme Court rendered in case of International Amusement Limited v. India Trade Promotion Organization in Civil Appeal No. 11474 of 2014 decided on 17.12.2014 and a judgment of this Court in case of New India Assurance Co. Ltd. v. Tara Sundari Phauzdar; reported in 2003 (3) CHN 550. He further submits that even if his client approached the wrong forum against one of the tenants, there is no fetter in approaching the proper forum to redress the grievance. On the claim of arrears rent, electricity charges and damages under Section 7 of the Public Premises Act, he submits that those are the continuing demand and there is no impediment in law in claiming the same. He strongly refuted the contention of Mr. Mitra that mere acceptance of a rent for the month of May, 2008 leads to novation of an agreement.
18. Let me examine the first point whether the parties can contract or waive its right conferred under a particular statute to be governed by another field of law applicable to a dispute between the private individuals. Admittedly the West Bengal Premises Tenancy Act, 1956 which was first published in Calcutta Gazettee extraordinary on 30.3.1956 after having the assent of the President came into force on and from 31.3.1956 The premises in question is situated within the periphery to which the said Act extends. Proviso to sub-section (3) of Section 1 of the said Act excludes the operation of the Act to any premises belonging to any local authority, belonging to or requisitioned by Government or any tenancy created by Government in respect of any premises taken on lease by government. The explanation appended thereto includes within the expression local authority, the Board called the Trustee of Improvement of Kolkata referred to Section 3 of Kolkata Improvement Act, 1911 as well as any body corporated or authority that may be constituted under any law for the time being in force for the improvement of municipality, town or cantonment. It is not disputed that the opposite party has a trapping of an authority having cent percent paid up share capital held by the Central Government. Furthermore, the definition of a public premises under Section 2(e) of the public premises Act includes the petitioner within its purview being the company defined in Section 3 of the companies Act, 1956 having paid up share capital of more than 51 per cent held by the Central Government.
19. Several writ petitions came to be filed before the Hon'ble Supreme Court challenging the invocation of the provision of Public Premises Act in evicting the tenant without taking recourse to the Delhi Rent Control Act, 1958. The application came up before the Constitution Bench in case of Ashoka Marketing Ltd. v. Punjab National Bank reported in (1990) 4 SCC 406 whether the provisions of the Public Premises Act would override the provision of Rent Control Act in relation to the premises which fall within the ambit of both the enactments.
20. While upholding that the provisions of the Public Premises Act being a later enactment overrides the provision of Rent Control Act so far it relates to the Public Premises is concerned, it is held:
“54. The Public Premises Act is a later enactment, having been enacted on August 23, 1971, whereas the Rent Control Act was enacted on December 31, 1958. It represents the later will of Parliament and should prevail over the Rent Control Act unless it can be said that the Public Premises Act is a general enactment, whereas the Rent Control Act is a special enactment and being a special enactment the Rent Control Act should prevail over the Public Premises Act. The submission of learned counsel for the petitioners is that the Rent Control Act is a special enactment dealing with premises in occupation of tenants, whereas the Public Premises Act is a general enactment dealing with the occupants of public premises and that insofar as public premises in occupation of tenants are concerned the provisions of the Rent Control Act would continue to apply and to that extent the provisions of the Public Premises Act would not be applicable. In support of this submission reliance has been placed on the non-obstante clauses contained in Sections 14 and 22 of the Rent Control Act as well as the provisions contained in Sections 50 and 54 of the said Act. On the other hand the learned counsel for the respondents have urged that the Rent Control Act is a general enactment dealing with the relationship of landlord and tenant generally, whereas the Public Premises Act is a special enactment making provision for speedy recovery of possession of public premises in unauthorised occupation and that the provisions of the Public Premises Act, a later special Act, will, therefore, override the provisions of the Rent Control Act insofar as they are applicable to public premises in occupation of persons who have continued in occupation after the lease has expired or has been determined. The learned counsel for the respondents have placed reliance on Section 15 of the Public Premises Act which bars the jurisdiction of all courts in respect of the eviction of any person who is in unauthorised occupation of any public premises and other matters specified therein. It has been submitted that the said provision is also in the nature of a non-obstante clause which gives overriding effect to the provisions of the Public Premises Act. Thus each side claims the enactment relied upon by it is a special statute and the other enactment is general and also invokes the nonobstante clause contained in the enactment relied upon.
55. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings. The Rent Control Act can, therefore, be said to be a special statute regulating the relationship of landlord and tenant in the Union territory of Delhi. The Public Premises Act makes provision for a speedy machinery to secure eviction of unauthorised occupants from public premises. As opposed to the general law which provides for filing of a regular suit for recovery of possession of property in a competent court and for trial of such a suit in accordance with the procedure laid down in the Code of Civil Procedure, the Public Premises Act confers the power to pass an order of eviction of an unauthorised occupant in a public premises on a designated officer and prescribes the procedure to be followed by the said officer before passing such an order. Therefore, the Public Premises Act is also a special statute relating to eviction of unauthorised occupants from public premises. In other words, both the enactments, namely, the Rent Control Act and the Public Premises Act, are special statutes in relation to the matters dealt with therein. Since, the Public Premises Act is a special statute and not a general enactment the exception contained in the principle that a subsequent general law cannot derogate from an earlier special law cannot be invoked and in accordance with the principle that the later laws abrogate earlier contrary laws, the Public Premises Act must prevail over the Rent Control Act.”
21. The Act of 1956 has been repealed by the West Bengal Premises Tenancy Act, 1997 which came into force on and from 20.7.2001 The section 3 of the later Act starts with the negative clause that the said act shall not apply to any premises owned by the Government undertakings or enterprise. Section 3 which stands now is somewhat peri materia with Section 3 of Delhi Rent Control Act, 1958, which was a matter of consideration before the Constitution Bench in case of Ashoka Marketing Limited (supra).
22. The expression public premises defined in clause (e) of Section 2 of the Public Premises Act is wide enough to include the premises belonging to is taking on lease by or on behalf of the companies and statutory body is mentioned in clause 2 and 3 of the said section, section 3 of the Rent Restriction Act clearly excludes those premises from the purview of the said Act. Normally a non obstante clause begins by using the words “notwithstanding anything contained or anything contained in a previous law shall not effect the provision of a particular act” but sometimes when expressed in negative forms can also be brought within its purview. The purpose is to give the provisions contained in the non obstante clause and overriding effect in the event of conflict between it and rest of the section. When the statute uses expression in negative form and excludes its operation to a premise incorporated therein, the legislative intent could be gather that those premises are taken away therefrom. In other words the operation of the act is not extended to those premises but controlled and regulated by different statute.
23. If the statute forbids its applicability to a special type of premises, the parties can not by agreement agree to whittle away the provisions of the said statutes. The contract between the parties must be within the legal frame and such contract being forbidden by law is treated as void.
24. In case of New India Assurance Co. Ltd.; (Supra) the special Bench of this Court clearly held that if there is a prohibition in a statute the same cannot be overridden by the Act of the parties, in following words:-
“18. This may also be considered from the point of view that the insurance of vehicle and the business arising out of it is governed by the statute. The insurance company has taken advantage of this compulsory insurance of every vehicle in order to carry on its business. Therefore, it has to take whatever has been provided in the statute, good, bad or indifferent. The insurance company was never compelled to enter into such business. It has entered into such business on its own volition. Therefore, it has to accept the rule of the game. That apart, sufficient protection has been provided to the insurance company by insertion of section 170 in the statute itself. By reason of this provision, an insurer has every right to apply before the Tribunal and allege collusion and prove the same and obtain the leave to defend the claim on points other than Section 96(2). The statutory provisions were enacted to enable the claimants to get the relief in the form of compensation at the earliest without involving them in protracted litigation. The theory of suing the owner by the claimant and the owner/insured suing the insurer for reimbursement of the claim paid by it to the claimant was sought to be exploded by reason of insertion of sections 146 and 149 (sections 95 and 96 of 1939 Act) of 1988 Act, and had restricted its right by insertion of section 149(2) of 1988 Act circumscribed by subsections (5) and (7) thereof. It is the intention of the legislature, which has to be upheld. The enactment of these provisions clearly indicates the legislative intent to protect the claimant. When statute provides a particular prohibition, the same cannot be superseded by act of parties. The principle of advance subrogation is something, which has no statutory force, but is merely a contract. The principle of advance subrogation does not apply to render a statutory provision ineffective. Inasmuch as, it would simply be a contracting out of statute, which, unless permitted by statute, is impermissible. Therefore, reservation clause can never enable the insurer to get rid of the prohibition provided under section 149(2) of 1988 Act. The statute does not provide for any scope of contracting out of the statute and thereby attract the application of the principle of advance subrogation. There is no scope for advance subrogation or contracting out of statute when the statute itself provides for right to contest the claim in certain circumstances by inserting section 170 of 1988 Act. Such principle of advance subrogation or contracting out is in direct conflict with section 96(2) read with sub-section (6) thereof 1939 Act corresponding to section 149(2) and sub-section (7) of 1988 Act.”
(Emphasis Supplied)
25. The observation in case of Devkaran (supra) can be noticed in this regard, it is held:
“8. This is clearly indicative of the fact that the court did not apply its mind to the factum whether the terms agreed by the parties are just and reasonable and whether it would be the standard rent consistent with the provision of the Act. Shri Dholakia, the teamed Senior Counsel for respondent is right in his contention that the order should disclose the application of court's mind to the facts and then to the determination of the standard rent on the basis of the terms, other evidence or records and the consent of the parties is consistent with the Act and should record its satisfaction. It is settled law that the Act is a welfare legislation and parties cannot contract out of the statute and the seat of approval of the court does not superadd its sanctity, nor receive its legality or validity or sanctity without due adjudication. In this case, as seen such adjudication and a satisfaction was not reached by the court below. The respondent is not precluded to make an application when the notice was issued by the appellant demanding payment of the arrears of the standard rent. Thereby, it is not a case where the tenant had abused the process of the court and made 1(1993) 3 SCC 271, 277 any successive application despite the standard rent fixed by the court at Rs. 211 by order dated 30-6-1964. The High Court, therefore, was right in holding that the defence under Section 12(3)(a) is available to the tenant and rightly allowed the revision and set aside the decree of the lower courts and dismissed the suit.”
26. In an unreported judgement of the Supreme Court in case of International Amusement Ltd.; (Supra), the Apex Court in clear terms held that the parties cannot contract out of the statute and it is apt to quote the relevant portions as follows:
“The contract between the parties must be within the legal framework and parties cannot contract out of the statute. Further, it was contended that the Estate Officer having exclusive jurisdiction is not arbitrable and parties by a contract cannot agree to refer the matters in respect of which jurisdiction has been conferred upon the Estate Officer. Therefore, the arbitrability of claims of the appellant covered under Sections 5 and 7 of the P.P Act, is excluded. To arrive at the said conclusion, the Division Bench of the High Court rightly placed reliance upon the Constitution Bench judgment of this Court in the case of Ashoka Marketing Ltd. (supra), wherein the legal question that arose was as to whether the Rent Control Act, 1995, which is also a Special Act will override the provisions of the P.P Act. After interpreting the relevant provisions of the Act, the Constitution Bench of this Court in the above case has held that the P.P Act, is a special statute relating to eviction of unauthorized occupants from public premises and therefore, the same will prevail over the Rent Control Act. In the said case, it was held that the 1971 enactment did away with the option of the parties and conferred exclusive jurisdiction on the Estate Officer in relation to the public premises. The power and jurisdiction of a civil court to adjudicate matters enumerated under Section 15 of P.P Act was withdrawn.”
27. The decision of the Supreme Court in Case of Shri Lachoo Mal (Supra) stands on a different footing and cannot be of any assistance to the petitioner.
28. In Lachoo Mal (Supra), the appellant therein was occupying a shop room at the lower storey as a monthly tenant. On June 4, 1062, the appellant and the respondent therein executed an agreement under which the appellant agreed to hand over the possession to the respondent for construction of the upper storey which shall be completed within 30 days therefrom and after resumption of the possession the rent would continue to be and the rights of the parties shall be governed by the Uttar Pradesh (Rent Control and Eviction Act) but the benefit under Section 1A of the Act shall not be extended. A suit for eviction was filed under Transfer of Property Act after terminating the tenancy. The learned Munsif dismissed the suit holding that the appellant is entitled to a protection conferred under Section 3 of the said Act. The learned District Judge reversed the said judgment and decreed the suit which was affirmed by the Hon'ble Supreme Court of India. In the said report the Apex Court noticed the provisions of Section 1A of the Uttar Pradesh (Rent Control and Eviction Act) which provides that nothing in the said Act shall apply to any building or part of a building which was under construction or constructed on or after January 1951. Section 3 thereof restricts the eviction of a monthly tenant governed by the said Act on the grounds enumerated therein. The point therefore fails for consideration whether the parties can waive the advantages conferred under the statute by an agreement. While addressing the said issue, an ancillary question cropped up whether Section 1A of the said Act is in effect, an exemption in favour of the landlords with regard to the building constructed after January 1, 1951 or benefits and advantages which can be waived and/or given up by agreement. While construing provision contained under Section 23 of the Indian Contract Act, it is observed that it was not a case of the parties therein that the agreement entered in 1962 was forbidden by law nor its nature that it would defeat the provisions of any law more particularly Section 1A of the said Act. In observing so, it is held:
“7. Now Section 1-A does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant entering into an agreement that they would not be governed by that section. We concur with the view expressed in Neminath Appayya Hanamannanavar, Plaintiff… v. Jamboorao Satappa Kocheri, Defendant,…. that the words “if permitted it would defeat the provisions of any law” in Section 23 of the Contract Act refer to performance of an agreement which necessarily entails the transgression of the provisions of any law. What makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobediancc of law. Clearly no question ofillegality can arise unless the performance of the unlawful act was necessarily the effect of an agreement. The following observations of Lord Wright in Vita Food Products Incorporated v. Unus Company Ltd. (in liquidation) are note worthy in this connection:
“Nor must it be forgotten that the Rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds.”
8. We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an illegal or unlawful act. In our judgment Section 1-A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962, was unlawful in view of Section 23 of the Contract Act.”
29. A waiver is an intentional relinquishment of a known right. Everyone has a right to waive an advantage or protection the law seeks to give. The ingredients and the applicability of the doctrine of waiver has been succinctly observed in case of P. Dasa Muni Reddy v. P. Appa Rao reported in (1974) 2 SCC 725 in the following:
“13. Abandonment of right is much more than mere waiver, acquiescence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver some times partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a nonexistent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.”
30. Ordinarily the Court do not permit a party to contract out of the Act nor can permit the party to contract in. The principles of waiver can never confer the jurisdiction upon the Court which it does not have. A status of the control of premises under the Rent Restricts Act can not be acquired by applying the doctrine of waiver. Section 15 of the Public Premises Act excludes the jurisdiction of the Court to entertain a suit or proceedings in respect of an eviction of a person who is an unauthorized occupant of the public premises and the recovery of the rent or the damages under Section 7 thereof.
31. Simultaneously, Section 3 of the West Bengal Premises Tenancy Act, 1997 keep the premise outside the purview of the said Act owned by the Central Government, State Government, a Government Undertaking, or Enterprise or statutory body, a local authority so on and so forth. The construction of the clause constituting waiver shall lead to an anomaly if the interpretation sought to be given by the petitioner is accepted. The construction of Clause constituting waiver shall lead to an anomaly if the interpretation sought to be given by the Petitioner is accepted. The position which would emerge that the eviction of a public premises would not be available under the Public Premises Act and the eviction under the Rent Restriction Act shall not further be available as it exempts such premises from its applicability.
32. The Civil Judge lacks jurisdiction to entertain the eviction of a tenant of a premises owned by the Government or the Government Enterprise and such jurisdiction cannot be conferred by an agreement between the parties and therefore the first point urged by the petitioner fails.
33. The second point need not require much deliberation as the findings recorded hereinabove sufficiently answers the same. A person approaches a forum which do not have the exclusive jurisdiction against one of the tenants neither creates jurisdiction not provided under the law nor can a stand in the way of the landlord in approaching the competent forum. A court lacking inherent jurisdiction to entertain the suit or the proceedings if wrongly approached by the party cannot confer a right on a third party to raise a plea on jurisdiction if rightly approached.
34. The third point urged by Mr. Mitra relates to the claim of the arrear rent and the damages in the form of compensation beyond the period provided for its recovery in a suit instituted before the Civil Court. The scheme of the Act as it appears requires an approach to the Estate Officer to form an opinion whether a person against whom the eviction is sought is unauthorized occupant. After forming an opinion and recording satisfaction if the notice is issued by the Estate Officer it commences the proceedings under the said Act. Under Section 4 of the said Act, the unauthorized occupant is required to show cause why the order of eviction should not be passed. Section 7 of the Act stands on a different pedestal where the Estate Officer is empowered to direct any person in arrears of rent payable in respect of any premises, to pay the same within such time or in such installments or the damages with simple interest at such rate as may be prescribed.
35. Sub-Section (3) of Section 7 of the Act mandates the issuance of a notice in writing to such person inviting to reply to a show cause within such time as may be specified in the said notice and after considering the same any evidence if produced in support of such objection shall pass such order. Admittedly, in a notice under Section 7(3) of the Act the opposite party claimed dues not only on account of electricity charges but on account of rent and damages beyond three years from the date of the said notice preceding the same.
36. Article 52 of the Limitation Act provides three years period for recovery of arrears of rent from the date when the arrears become due and Article 55 of the Limitation Act provides the similar period of limitation for recovery of compensation for breach of any contract. The expression ‘payable’ appearing in sub-Section (2A) of Section 7 of the Act came up for consideration before the Hon'ble Supreme Court in case of New Delhi Municipal Committee v. Kalu Ram reported in (1976) 3 SCC 407 and it is held that though the expression payable ordinarily means what is required to be paid but does not include any amount which is ex facie barred by law of limitation in these words:
“2. The only contention raised before us by Mr. Hardy appearing for the appellant is that the High Court was wrong in holding that the amount in question could not be recovered under Section 7 because the time for instituting a suit to recover the sum had expired. Admittedly, any suit instituted on the date when the Estate Officer made his order under Section 7(1) would have been barred by time. Mr. Hardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act providing a different and special mode of recovery was therefore available to recover rent in arrears beyond three years. Section 7 as it stood at the relevant time reads:
“7. Power to recover rent or damages in respect of public premises as arrears of land revenue.—(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 instalments 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 instalments as may be specified in the order:
Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under sub-section (1) or the damages or any instalment thereof payable under sub-section (2) within the time specified in the order relating thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.”
As would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent. It was argued that since Section 7 did not put a time-limit for taking steps under that section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent's objection. In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English. We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars the remedy without touching the right. Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time however provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property. But on the facts of this case no question of a suit for possession of any property arises and Section 28 has no application. It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitting him to enforce his claim, would be free to avail of it. But the question in every such case is whether the particular statute permits such a course. 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 be 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 be 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 timebarred. Construing the expression “any money due” in Section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta v. Official Liquidators of the Dehradun-Mussoorie Electric Tramway Company Ltd. that this meant moneys due and recoverable in a 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 it 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.”
37. The aforesaid proposition of law is reiterated by the Hon'ble Supreme Court in case of State of Kerala v. V.R Kalliyanikutty; reported in (1999) 3 SCC 657 in these words:
“12. In the case of New Delhi Municipal Committee v. Kalu Ram relying on the Privy Council decision in Hansraj Gupta v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd. this Court interpreted Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 in a similar way. Under that section 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 instalments as may be specified in the order. While considering the meaning of the words “arrears of rent payable” this Court examined whether Section 7 creates a right to realise arrears of rent without any limitation of time. The Court observed that the word “payable” is somewhat indefinite in import and its meaning must be gathered from the context in which it occurs. In the context of recovery of arrears of rent under Section 7, this Court said that if the recovery 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 covers arrears not otherwise time-barred.”
38. Since neither of the parties could apprise the Court the date on which the application under Section 7 of the Public Premises Act was taken out by the opposite party or on which the date the notice under Section 7(3) of the said Act was issued, it is suffice it to say that the amount either on account of the arrears rent or the damages or any amount on whatsoever account is not legally payable by the petitioner beyond three years anterior to the date of the aforesaid application or notice whichever is earlier.
39. 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 claimed cannot be ordered by the Estate Officer under Section 7 of the said Act.
40. The fourth point is not very much stressed upon except that the rent for the month of May, 1998 was accepted when the lease admittedly expires on a previous month. According to the petitioner once the rent is accepted by the opposite party it creates a new jural relationship and, therefore, the proceedings for eviction on the ground of expiry of lease by efflux of time should fail. According to the opposite party the rent of the said order was taken mistakenly and was subsequently returned to the petitioner. It must be recorded that there is no paper produced in support of the aforesaid contention by the opposite party. Mere acceptance of a rent for one or two months mistaken does not constitute a novation of a contract in absence of any assent to continue in possession.
41. The letters exchanged between the parties subsequently give clear indication that the opposite party never assented for continuance of possession and, therefore, it cannot be construed that the opposite party ever intended to create a new relationship upon accepting the rent.
42. In this regard, reference to Section 116 of the Transfer of Property Act can be noticed, this Court, therefore, does not find any substance in the above argument.
43. In view of the findings recorded hereinabove, the revisional application is allowed in part.
44. To avoid any ambiguity this Court records that the order under Section 5 of the Public Premises Act is not interfered with. However, the monetary claim under Section 7 of the said Act is allowed to the extent indicated hereinabove.
45. However, there shall be no order as to costs.
46. After the judgment is delivered in open Court, the learned Advocate for the petitioner prays for stay of operation of this judgment.
47. The prayer is considered and refused.