Ajmal.T.M Vs Deputy Tahsildar

1. The demand raised under the Kerala Revenue Recovery Act, 1968 (hereinafter referred to as the “Revenue Recovery Act”) is questioned in this writ petition on the ground that it is barred by limitation. The facts in the present writ petition disclose that the petitioner entered into a lease agreement with Greater Cochin Development Authority (hereinafter referred to as “GCDA”), as evident from Ext.P3, in respect of a shop room, which he had successfully bid at auction. Pursuant to the execution of the lease agreement, the petitioner was required to pay rent for the shop room he occupied. Petitioner has a case that he was not able to run the business for which the shop was taken on rent because of various extraneous factors, with which this Court is not concerned. On the expiration of the lease, it appears that the GCDA sent a requisition for revenue recovery for the recovery of arrears of rent.

2. I have heard the learned counsel, Sri.C.Y. Vinod Kumar, for the petitioner and the learned Standing Counsel, Smt. Mini V.A, for respondents 2 & 3.

3. The learned counsel for the petitioner contends that the demand issued by the revenue recovery authorities on requisition of the GCDA is barred by limitation. He relies on the decision of the Supreme Court in State of Kerala Vs. Y.R. Kalyanikutty [1999 (2) KLT 146], wherein it was held that the provisions of the Limitation Act will apply to the proceedings under the Revenue Recovery Act. The learned counsel for the petitioner also takes me through the counter affidavit filed by the GCDA (respondent Nos. 2 and 3). In the counter affidavit it is specifically asserted in paragraph No.4 that the term of the agreement expired on 17.03.2014. It is further averred in paragraph No. 5 of the above counter affidavit that the respondent sent a requisition for revenue recovery on 16.11.2017. Therefore, it is evidently clear that the requisition is beyond a period of three years.

4. The learned Standing Counsel for the GCDA, however, controverted the above submissions by referring to the Division Bench judgment of this Court in Godan Namboothiripad Vs. Kerala Financial Corporation [1998 KHC 621] to contend for the proposition that the Limitation Act, 1963 (hereinafter referred to as “Limitation Act”) is not applicable to the proceedings under the Revenue Recovery Act. She further takes me to Article 112 of the Limitation Act, which provides for a period of thirty (30) years for the recovery of amounts due to a State Government. It is therefore contended by the learned Standing Counsel that the GCDA being an Authority under Article 12 of the Constitution of India, has to be equated with all the trappings of the State so as to attract the provisions of Article 112 of the Limitation Act.

5. On the basis of the submissions raised across the bar, this Court is called upon to decide as to whether, for proceedings under the Revenue Recovery Act, the law of limitation would apply. If so, which provision under the Limitation Act applies to such proceedings.?

6. In so far as the contention of the learned Standing Counsel for respondents 2 and 3 that provisions of the Limitation Act are not applicable to the recovery proceedings under the Revenue Recovery Act, this Court is firm in its view that the point raised is covered by the judgment of the Hon’ble Supreme Court in Y R Kalyanikutty (supra). Therefore, the proposition raised by the learned Standing Counsel based on Godan Namboodiripad (supra) cannot be accepted.

7. To deal with the alternate submission of the learned Standing Counsel for respondents 2 and 3, that even if the provisions of the Limitation Act apply, then her client is entitled to fall back on Article 112 of the Limitation Act, it is necessary to consider the relevant provisions of the Limitation Act. Article 112 of the Limitation Act reads as under:.

This court is now called upon to decide the question as to which is the exact provision of the Limitation Act that applies to the GCDA, in so far as recovery measures are concerned. Is it Article 112 or Article 113, or any other Article as provided under the Limitation Act?

8. To deal with the aforesaid contention, one must necessarily understand how the GCDA came into existence. The GCDA came into existence on 24.01.1976 under the Madras Town Planning Act of 1920 and Travancore Town Planning Act IV of 1108, read with G.O. (M.S) No.19176/LA and SWD dated 23.01.1976 for the purpose of the development of the area specifically carved out in the Government Order. This being the position in so far as the creation of the GCDA is concerned, can it is said that the Authority which came into existence under a particular statute and has the trappings of a “State” under Article 12 of the Constitution of India is entitled to the benefit under Article 112 of the Limitation Act? The answer to the above question lies in analysing the nature of the right conferred under the Revenue Recovery Act, which provides for a mechanism for recovery of dues as arrears of land revenue. It is an admitted fact that the provisions of the Revenue Recovery Act would not apply to the GCDA, unless it is notified under Section 71 of the Revenue Recovery Act. Therefore, the notification under Section 71 of the Revenue Recovery Act being sine qua non for the application of the Act, it is clear that the Revenue Recovery Act does not create any right by itself for the GCDA to recover its dues.

9. When the constitution of the GCDA and its purpose are revisited by this Court, it can be seen that the said Authority cannot fall back on Article 112 of the Limitation Act and contend that it has thirty (30) years period for recovering the amounts due to it. Such an interpretation, if given would certainly do violence to the provisions under Article 112 of the Limitation Act, which is exclusively meant for suits by the Central Government or State Government. Therefore, this Court has no hesitation to hold that Article 112 of the Limitation Act would not apply to recovery measures initiated by the GCDA.

10. Next, this Court will decide the impact of the contention raised by the learned Standing Counsel for the GCDA that it has the trappings of “State” under Article 12 of the Constitution of India. Article 12 of the Constitution of India defines the word “State”, which reads thus:

“12. Definition:

In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

Therefore, while analysing the definition given under the Constitution of India, one can find that the framers of the Constitution specifically dealt with a situation where the local and other authorities have to necessarily come within the meaning of “State”. However, when the provisions  of  the  Limitation  Act  were  framed  by  the  Parliament, especially Article 112 thereof, the Parliament consciously avoided the term “other authorities”. Had the intention of the Parliament been to confer a larger period of limitation for the recovery of the dues of the other authorities also, then it would have specifically included the term “other authorities” also under Article 112 of the Limitation Act. In the absence of such inclusion, this Court has no other alternative but to reject the contention of the learned Standing Counsel for the GCDA. The view taken by this Court is supported by the views expressed by U.N. Mithra on Law of Limitation (Tagore Law Lectures), 13th Edition. The learned author has opined that even under the Limitation Act of 1859, wherein Article 149 provide for a period of 60 years for suits on behalf of the Central and State Government would not apply to local authorities or Municipalities.

11. Perhaps the first decision on the point may be found in The Municipal Commissioners for City of Madras Vs Sarangapani Mudaliar [(1896) ILR 19 Mad 154], in which the High Court of Madras held that Article 149, Schedule II of the Limitation Act, applies only to suits brought by or behalf of the Secretary of the State, and there is no authority for the proposition that when the Crown has once ceded the property to an individual or corporation, it does (or can) also cede at the same time any right or privilege inherent in the Sovereign Power.

12. The principle laid down as above certainly supports the view taken by this court that the benefit under Article 112 of the Limitation Act cannot be given to an authority constituted under a Statute.

13. The issue, however, does not stop there. If Article 112 of the Limitation Act does not apply, then what is the exact provision that applies for the recovery of arrears of rent due to the respondents 2 and 3. Is it Article 113 of the Limitation Act or any other provision contained in the said Act? Article 113 of the Limitation Act reads as follows:

14. Under the registered lease deed executed by the parties, it is seen that the arrears of rent are to be recovered as arrears of land revenue. No doubt the obligation to pay rent under an agreement for lease is provided as the obligation of the “lessee” under Section 107 of the Transfer of Property Act, 1882. But the question is if the “lessee” fails to discharge the said obligation, then what is the remedy for the “lessor” to recover the dues? Normally, this can be done only by filing a suit before the civil court. If that is so, is it Article 113 or Article 52 that applies to such suits or proceedings? Article 52 under the Limitation Act reads as follows:

Description of                     Period of                              Time from which period begins to

suits                                        limitation                                                             run        

52. For arrears                      Three years                           When the arrears become due.

of rent

15. In this case, since the GCDA is a notified institution, it certainly can resort to the provisions of the Revenue Recovery Act for recovery of its dues. However, merely because the GCDA is a notified institution under the Revenue Recovery Act, it does not mean that it will get a longer period of limitation other than one provided either under Article 52 or Article 113, as the case may be. This Court has already found that an authority that has the trappings of the State, cannot claim the benefit of a longer period of limitation. Thus, this Court is not impressed by the argument of the learned counsel for the GCDA that Article 112 is attracted and it has a period of limitation of thirty (30) years. Hence, the said contention is rejected.

16. The learned Standing Counsel for the GCDA further submits that the petitioner was evicted from the leased premises in terms of the provisions contained under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. However, the said submission is opposed by the learned counsel for the petitioner. At any rate, this Court is not called upon to decide the said issue. Suffice to say, irrespective of the manner in which the petitioner was evicted will not have any consequence on the question to be decided by this Court.

17. This Court further finds that Ext.P3, registered agreement of lease, shows that the method of recovery of the arrears of rent is by resorting to the provisions of the Revenue Recovery Act. Clause IV (3) of Ext.P3 reads as follows:

“IV. PROVIDED ALWAYS AND IT IS HEREBY EXPRESSLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:-

xxx xxx xxx

3. All arrears of rent, maintenance charges, and other payments due in respect of the shop room hereby demised shall be recoverable in the same manner as arrears of land revenue under the provisions of the Kerala Revenue Recovery Act, 1968.”

18. Therefore, when the parties agree that the arrears of rent will be recovered in the same manner as “arrears of land revenue”, necessarily the said dues will not partake the character of dues to the Government thus taking out of the purview of Article 112 of the Limitation Act. Further, it does not require any elaboration by this Court on the proposition that the Revenue Recovery Act does not create any right but only provides a method for recovery. If that is so, the GCDA cannot claim any special right for recovery of the rent from the petitioner.

19. Conclusion of the above discussions leads to the finding that the relevant provision which is applicable is Article 52 of the Limitation Act and, hence, the limitation is three (3) years from the date on which the rent fell in arrears. Hence, the GCDA had to initiate the recovery measures within a period of three (3) years from the date on which the rent became due. Therefore, in my considered view, the revenue recovery proceedings now resorted to by the GCDA is clearly beyond the period of limitation. Accordingly, Ext.P4 demand under Section 7 of the Revenue Recovery Act is set aside. While admitting this writ petition, this Court directed the petitioner to remit Rs.50,000/- (Rupees fifty thousand only) as a condition for granting interim order. The amount of Rs. 50,000/- (Rupees fifty thousand only) is deposited with the GCDA as stated by the counsel for the petitioner on 27.09.2018. Since the demand is now set aside by this Court, I direct the second respondent to refund the said amount of Rs. 50,000/- (Rupees fifty thousand only) to the petitioner within a period of one month from the date of receipt of the copy of the judgment.

Writ petition is allowed, as above.