Judgment:
S.K. Keshote, J.
1. In this case, the Counsel for the petitioners has submitted written arguments. The Counsel for the respondent No. 1 has also submitted written arguments to which the Counsel for the petitioners submitted arguments in rejoinder and further arguments in rejoinder. However, the Counsel for the petitioners is not present to make the oral submissions.
2. The facts of the case, in brief, are that the owners of the property in dispute were Ranchhodlal Vithaldas and others. The property in dispute has been granted on lease to the petitioners by two separate registered deeds. The first deed is dated 16th December, 1950 in respect of the land admeasuring 1,386 sq. yds. of land of Final Plot No. 67/1 in favour of the petitioner No. 3 for a period of 14 years at an annual rent of Rs. 1,150/-. On the same date, another lease deed was executed of the land admeasuring 2,099 sq. yds. of the Final Plot No. 67/2 for a period of 14 years in the name of the father of petitioner Nos. 1 and 2 at an annual rent of Rs. 1,901/-. Ranchhodlal Vithaldas and others, the original owners of the land in dispute sold the same to Jethabhai Amratlal Trust on 7th May, 1962. On 7-5-1962, vide gift deed dated 7-5-1962 the purchasers of the land Jethalal Amratlal Trust gifted the property in dispute to Ahmedabad Municipal Corporation. On 4-3-1978, the Ahmedabad Municipal Corporation terminated the tenancy of the petitioners under the notice given to them. The said notice was issued by the Ahmedabad Municipal Corporation with a specific stipulation without prejudice to the rights of A.M.C. to proceed against the petitioners under the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as 'the Act, 1972'). The petitioner replied the said notice vide their reply dated 28th March, 1978. In the reply they denied title of the Corporation. It has further been stated that the Corporation never demanded the rent from the petitioners nor the petitioners were informed that the Corporation has become the owner of the land by virtue gift deed dated 7-5-1962. Further it has been stated that since the expiry of the lease period, the petitioners are in adverse possession of the land and had become owners of the land in question. The Corporation has initiated the proceedings for the eviction of the petitioners from the land in dispute under the Act, 1972. On 21st August, 1980, the Competent Officer gave notice to the petitioners in the recovery proceedings being COP. No. 1 of 1980. After notice to the petitioners, the Competent Officer passed an order on 5-1-1983 of eviction of the petitioners from the land in question. The petitioners preferred an appeal against this order of the Competent Officer in the Court of Principal Judge, City Civil Court, Ahmedabad being Appeal No. 17 of 1983. However, this appeal came to be dismissed by the appellate Court on 30th March, 1983. Hence, this Special Civil Application.
3. The Corporation has not filed any reply to the Special Civil Application.
4. During the course of arguments in this petition it transpired that the petitioners in fact have transferred this land in dispute to many persons who raised the construction of shops and they are carrying on their businesses. On this statement, This Court called the Commissioner of Ahmedabad Municipal Corporation and he was directed to ascertain the existing position of the land in dispute. It was found that on the land as many as 146 + 13 persons are there. This Court has given notice to all those occupiers of the land and they were treated to be proper party to these proceedings. They were added as respondents and Shri Girish Patel has put appearance on their behalf in these proceedings. However, these persons have also not filed any reply to this Special Civil Application.
5. In the written arguments, the learned Counsel for the petitioners raised the following contentions:
(i) The right of the Ahmedabad Municipal Corporation to recover the possession of the disputed land from the petitioners is barred by virtue of Article 67 of the Limitation Act, 1963.
(ii) The right of ownership of Ahmedabad Municipal Corporation to this disputed land is extinguished in view of the provisions of Section 27 of the Limitation Act, 1963, and
(iii) The petitioners have become the owners of this disputed land by adverse possession.
6. The respondents have also given the written arguments to which the arguments in rejoinder have been filed and the contentions have been controverted. Further rejoinder arguments have been filed.
7. The learned Counsel for the respondent No. 1 contended that the proceedings have been taken against the petitioners for their eviction from the disputed land under the special Act, namely, Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 and the provisions of the Limitation Act are not applicable to those proceedings. It has next been contended that This Court is sitting under Article 227 of the Constitution which jurisdiction is an equity jurisdiction and when both the authorities below concurrently held against the petitioners, This Court may not interfere in the matter. It has next been contended that the petitioners are the tenants holding over and not the trespassers. The period of limitation in such matter begins to run from the date when the tenancy is determined, i.e., 30th April, 1978. Section 27 of the Limitation Act does not apply to the present case.
8. Both the Counsels for the parties, in support of their respective contentions cited numerous authorities, the details of which are as under:
Kai Khushrao v. Bai Jerbai
: [1971]1SCR298 Dindayal v. Rajaram
: [1978]2SCR814 Yeshwantrao v. Baburao
(1969) X G.L.R. 992 (S.C.) State of Gujarat v. Raghav Natha
1992(2) XXXIII(2) G.L.R. 871 Saurashtra Paper Board Mills Pvt. Ltd. v. State of Gujarat
1995(2) G.L.H. 701 : 1996(1) G.L.R. 306 Manjulaben R. Barot v. The Collector of Mehsana
: AIR1980MP106 L.S. Nair v. Hindustan Steel Ltd., Bhilai
: (1969)IILLJ651SC Athani Municipality v. Labour Court, Hubli.
: [1995]1SCR5 Birla Cement Works v. G.M., Western Railways
: [1992]3SCR384 Patel Naranbhai Marghabhai and Ors. v. Deceased Dhulabhai Galbabhai and Ors.
9. I have given my thoughtful consideration to the oral submissions made by the learned Counsel for the respondent No. 1 as well as gone through the written arguments submitted by both the parties.
10. The only question which arises for consideration of This Court is whether the provisions of Section 27 of the Limitation Act, 1963 can be made applicable to the proceedings which have been initiated by the Corporation for the eviction of the petitioners from the suit land. So far as the fact that the respondent-Corporation has become the owner of the property in dispute is concerned, the petitioners have not disputed this aspect. The sale deed which has been executed by the original owners of the suit land in favour of the Trust and the gift deed which has been made on the property by the Trust in favour of the respondent-Municipal Corporation are also not challenged by the petitioners. So the petitioners have not raised any dispute regarding the ownership of the Ahmedabad Municipal Corporation of the land in dispute. The petitioners' case is that they are the trespassers on the land after the expiry of the term of lease under which they had been put in possession thereof. The Act, 1972 is a special Act which has been enacted for the eviction of the unauthorised occupants from the public premises.
11. The public premises has been defined in Clause (f) of Section 2 of the Act, 1972 which includes any premises belonging to any Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949 or any Municipality constituted under the Gujarat Municipalities Act, 1963. The premises has been defined in Clause (d) of Section 2 of the Act, 1972 which means any land or any building or part of a building and includes the garden, grounds and outhouses, if any, appertaining to such building or part of a building and any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. So the definition of the premises is inclusive of definition which includes therein any land. So a combined reading of Clause (d) and Clause (f) of Section 2 of the Act, 1972 gives out that the land in dispute is a public premises.
12. Unauthorised occupation has been defined in Clause (h) of Section 2 of the Act, 1972. Unauthorised occupation in relation to any public premises means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever.
13. The petitioners' possession after the expiry of the lease term is an unauthorised occupation of the public premises. The petitioners have no authority for such occupation as admittedly neither the original owners or the respondent No. 1 has extended the period of lease. The lease has come to an end by efflux of time and the continuation of the petitioners in occupation of the public premises thereafter is an unauthorised occupation as it falls within the said definition as given in Clause (h) of Section 2 of the Act, 1972. If we go by another aspect that the petitioners are continuing in occupation even after the expiry of lease period and even if it is taken to be an unauthorised occupation then too after notice given by the Corporation of determining their authority to continue in the possession, their occupation is only unauthorised. So even if the matter is considered from any aspect, the occupation of the petitioners in the land in dispute is unauthorised occupation. It is important to note here that the petitioners themselves have, as stated earlier, come up with a case that they are trespassers in the land in dispute.
14. Section 4 of the Act, 1972 provides that if the competent officer is satisfied that any person is in authorised occupation of any public premises, the competent officer shall, notwithstanding anything contained in any other law for the time-being in force issue in the manner as provided under the Act a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.
15. Section 5 of the Act, 1972 provides that if after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, by himself, or by Advocate, Attorney or Pleader, the competent officer is satisfied that any of the reasons specified in Sub-section (1) of Section 4 exists, the competent officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises and thereupon the order shall be deemed to have been duly served on all the persons concerned.
16. In the present case, the petitioners have been admittedly given the notice under Section 4 and after giving them a reasonable opportunity of hearing the order under Section 5 of the said Act has been passed. The petitioners were found to be in unauthorised occupation of the land in dispute and their appeal has also been dismissed.
17. Section 16 of the Act, 1972, bars the jurisdiction of the Court. This section provides that no Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any persons on the ground that he is in unauthorised occupation of any public premises or for any other reason specified in Sub-section (1) of Section 4, or the recovery of the arrears of rent payable under Sub-section (1) of Section 7 or the damages payable under Sub-section (2) of that section or the costs awarded to the State Government or the Corporate authority under Sub-section (5) of Section 9 or any portion of such rent, damages or costs.
18. Section 27 of the Limitation Act, 1963 (hereinafter referred to as the Act, 1963) makes a provision for extinguishment of right to property. This section provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This section as it comes out from its plain reading applied only to the suits to be instituted for possession of the property. The question which does arise for the consideration of This Court is whether the provisions of Section 27 of the Act, 1963 are applicable to the proceedings to be initiated or instituted under the Act, 1972. In the Act, 1972, for initiation of the proceedings for eviction of unauthorised occupation from the public premises, the limitation has not been prescribed and this position is not disputed by the petitioner also.
19. The petitioner has placed strong reliance on the decision of the Hon'ble Supreme Court in the case of Dindayal v. Rajaram (supra). In that case, the provisions of Section 28 of the Act, 1908 were under consideration but those provisions are analogous to Section 27 of the Act, 1963. The facts of the case which were there before the Hon'ble Supreme Court are to be taken in brief.
20. One Gulli Gotamia had two sons by name Girdharilal and Nandoo. After death of Gotamia, Girdharilal and Nandoo were divided. Girdharilal died on May 17, 1920. His first wife had predeceased him but at the time of his death his second wife Ladli Bahu was alive. On his death, his widow took possession of his properties. Nandoo had two children, Gajadhar and Lachhi, Lachhi died issueless. Gajadhar also is dead. He had two children Dindayal and Parmeshwar Dayal. Girdharilal had a daughter from his predeceased wife by name Konsa Bai. She died in the year 1943. Ladli Bahu had a daughter by name Nanni Bai who died in the year 1941. The children of Nanni Bai, Narbada Bai, Raja Ram, Ram Narain and Gaya Prasad were the plaintiffs in the suit.
21. Ever since the death of Girdharilal, Ladli Bahu was in possession of the properties. She gifted those properties to her daughter Nanni Bai on July 30, 1936 and pui the donee in possession of the same. Konsa Bai, the daughter of predeceased wife of Girdharilal, filed a suit in 1937 seeking a declaration that the gift deed in question is not binding on her and that it cannot come in her way in inheriting the suit properties on the death of Ladli Bahu. That suit was decreed on May 3, 1937. On death of Nanni Bai in the year 1941, the plaintiffs came into possession of the suit properties. Ladli Bahu took wrongful possession of the suit properties from the plaintiffs on June 1, 1951 under the guise of enforcing the decree in the suit filed by Konsa Bai. Thereafter, she continued to be in exclusive possession of the suit properties. On May 27, 1952, she gifted some of those properties to one Rameshwar Prasad and the remaining properties she gifted to the appellants on March 21, 1957. She died on 9th April, 1960 and Hindu Succession Act came into force on June 17, 1956.
22. In that case, two questions were there for consideration before the High Court and the lower Courts below namely (i) what is the effect of the possession taken by Ladli Bahu on June 1, 1951, and (ii) Did Ladli Bahu become the full owner of those properties in view of Section 14(2) of the Hindu Succession Act, 1956.
23. The High Court came to the conclusion that Ladli Bahu's possession of the suit properties after June 1, 1951, was that of a trespasser and as such she did not become an absolute owner of those properties on the coming into force of the Hindu Succession Act. It also held that the plaintiffs became entitled to the suit properties on the death of Ladli Bahu as the nearest reversioners of Girdharilal.
24. Before the Hon'ble Supreme Court, it has been urged on behalf of the appellants that as soon as Ladli Bahu took possession of the suit properties from the plaintiffs, her previous possession as the widow of Girdharilal sprang up again and thereafter she was holding the properties in her capacity as the widow of Girdharilal and hence she became the absolute owner of those properties when the Hindu Succession Act came into force. On the other hand, on behalf of the respondents it was urged that as soon as Ladli Bahu parted with the possession of the suit properties, in favour of her daughter under a gift deed, she lost all rights in those properties. Therefore when she acquired possession in 1951, she did so as a trespasser.
25. The High Court and the Courts below in that case have come to the conclusion that the gift made by Ladli Bahu in favour of Nanni Bai is a valid gift and that Nanni Bai came into possession of the suit properties on the strength of that gift. Hence she must be held to have had no interest in those properties thereafter. Therefore, when Ladli Bahu took possession of those properties in 1951, she did so as a trespasser and therefore, the Hon'ble Supreme Court held that the aforesaid conclusion is unassailable.
26. One of the questions considered by the Hon'ble Supreme Court in that case was--whether in view of Section 104(1) read with Article 1 of the Second Schedule of the C.P. Tenancy Act, 1920 it can be held that Ladli Bahu had acquired a title to possess the suit properties.
27. Section 104(1) of the Act aforesaid provides that the suits and applications specified in the Second Schedule shall be instituted or made within the time prescribed in that Schedule for them respectively, and every such suit instituted and application made, after the period of limitation so prescribed shall be dismissed. Section 104 of the Act, 1920 prescribed the period of limitation of three years for the suit for possession of a holding by a person claiming to be a tenant from which he has been dispossessed or excluded from possession by any person and the time for cause of action shall begin to run from the date of dispossession or exclusion. The suit properties in that case were held on tenancy right. Girdharilal was the protected tenant of those properties, and the plaintiffs became the tenants of those properties under the gift deed. So in view of Article 1 of the Second Schedule and in view of Section 104(1) of the Act, 1920, the plaintiffs as tenants could not have sued for possession of the suit properties after June 1, 1954. A contention has been raised there that in view of the principle underlying Section 28 of the Indian Limitation Act, 1908 corresponding to Section 27 of the Act, 1963 which principle is not confined to suits and applications for which limitation is prescribed under that Act but is of general application, the plaintiffs' right to the suit properties must be held to have been extinguished. In other words, the contention was that in view of the aforementioned provisions, the plaintiffs had not merely lost their right to sue for possession of the suit properties, their right in the properties itself had been extinguished. In the context of those facts and the provisions of the Act, 1920 their Lordships of the Hon'ble Supreme Court in the said case observed, 'it is well settled that the principle underlying Section 38 of the Indian Limitation Act, 1908 (same as Section 27 of the Indian Limitation Act, 1963) is of general application. It is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act.' In that case, their Lordships of the Hon'ble Supreme Court further held that the suit filed by the plaintiffs therein was not on the strength of their as a tenant of the suit holding. They brought their suit on the strength of their title as the nearest reversioners to Girdharilal and as such Article 1 of the Second Schedule of the Act, 1920 does not apply to the present suit. It has further been held that the limitation for this suit is governed by the provisions of the Limitation Act, 1908. Their Lordships of the Hon'ble Supreme Court further observed that it is one thing to say that a tenant who was in possession of the tenancy holding at the time of dispossession had lost his rights in the holding but it is another thing to say that a trespasser had become the tenant of that holding at the end of the prescribed period. It must be remembered that C.P. Tenancy Act is a special Act. It only governs those matters for which provision is made therein. In other respects the general law continues to apply. The Act does say that a tenant's right in respect of any property can be acquired by adverse possession. It has further been observed that the provisions of the Act does not enable a trespasser to impose himself as a tenant on the landlord by means of adverse possession of the holding as against the tenant for a period of three years. Similarly, it is not possible to hold that a tenancy right could have been acquired in a holding so as to affect the rights of third parties by being in wrongful possession of that holding for a period of three years. If it is otherwise, valuable rights of third parties could have been jeopardised for no fault of theirs. In that case their Lordships of the Hon'ble Supreme Court held that a right could have been barred even before it accrues.
28. The decision of their Lordships of the Hon'ble Supreme Court in the case aforesaid is of little help to the petitioner. There the observation on which strong reliance is placed by the Counsel for the petitioner has been made in reference to Section 104(1) read with Article 1 of C.P. Tenancy Act, 1920. In that Act, the limitation has been prescribed and in the context of that the provisions of Section 28 of the Limitation Act, 1908 (corresponding to Section 27 of the Act, 1963) has been interpreted and the observation has been made. In the case in hand, the proceedings have been initiated against the petitioners for their eviction from the disputed land under the Act, 1972. Under the Act, 1972, for eviction of unauthorised occupants from the public premises no limitation has been prescribed and as such the provisions of the Limitation Act cannot be made applicable to the proceedings initiated under the Act, 1972. The Act, 1972 is a special Act and its provisions are to be read and without there being any riders put thereon by the provisions of any other Act.
29. In the case of Patel Naranbhai Marghabhai and Ors. v. Deceased Dhulabhai Galbabhai and Ors. (supra) their Lordships of the Hon'ble Supreme Court held that the provisions of Section 27 are not applicable to Bombay Agricultural Debtors Relief Act, 1947. There, one of the contentions of the appellants therein was that the appellants perfected their title by adverse possession. The matter pertains to the provisions of Bombay Agricultural Debtors Relief Act, 1947 and in that Act no limitation has been prescribed for execution and the contention has been made that the execution could have been laid within 12 years and as the respondents therein laid their applications after 22 years no relief for possession was asked and that the execution after 22 years is barred by limitation. Dealing with this contention, Their Lordships of the Hon'ble Supreme Court have observed that where any special or local law prescribes its own period of limitation different from the one prescribed by the Schedule of the Limitation Act then Section 3 of the said Act would apply by fiction as if it was prescribed in the Schedule. In that even period of limitation prescribed in the local or special law to the suit, appeal or application, Sections 4 to 24 inclusive would apply. When a person is obliged to institute a suit for possession of any property then by operation of Section 27 at the determination of the period thereby limited his right to such property shall be extinguished. Section 3 of the Limitation Act bars institution of a suit after the prescribed period and the suit shall be dismissed though the limitation has not been set up as a defence. The word 'suit for possession' referred to in Section 27 of the Act, 1963 is a suit in respect of which the period of limitation is prescribed by the Schedule to the Limitation Act. Under Section 2(1) of the Limitation Act suit does not include application. Section 3(2)(i) amplifies that for the purpose of Limitation Act a suit is instituted in an ordinary course when the plaint is presented to proper officer. Section 27 extinguishes the right to property at the determination of the period 'hereby limited' for instituting a suit for possession of any property. Under Section 2(j) period of limitation means the period of limitation prescribed for any suit by this Schedule. In other words the right to any property would be extinguished only when limitation in that behalf has been prescribed and the owner or person entitled to possession failed to lay the suit by presentation of a plaint to the proper officer within the prescribed period by the Schedule to the Limitation Act. The suit for possession under Section 27 of the Limitation Act is a suit in respect of which the period of limitation has been prescribed, i.e., computed as per the provisions of the Limitation Act. It is clear from the words 'period hereby limited' in Section 27 that it would be applicable to a suit and that the limitation prescribed is one in the Schedule to the Limitation Act. Section 27, therefore, does apply to the suit for possession laid in the specified Civil Court. Moreover, the words in Section 27 that at the determination of the 'period hereby limited' to any person for instituting a suit for possession would imply that the limitation has begun to run against a person for instituting a suit under Section 9 of C.P.C. and had expired. The Legislature advisedly did not prescribe any period of limitation for recovery of the possession under the Act which is a beneficial legislation. Section 51A expressly bars the jurisdiction of the Civil Court. It would follow that where a person could not or need not have suit for possession, there is no question of any determination of the period of limitation to his instituting a proceeding or a suit for possession. Consequently, no question of the applicability of Section 27 would arise. Thereby the legislature manifested, by necessary implication, that the period of limitation is not applicable to an application for recovery of possession under the Act.
30. In the context of the contention raised that the appellants therein perfected their title by adverse possession, the observation made by the Hon'ble Supreme Court is also relevant to this case. Their Lordships of the Hon'ble Supreme have observed that there is no evidence as to when that appellants asserted adverse title to the property to the knowledge of the respondents and that they acquiesced to it. A suit for possession of the owner of any property will not be barred if the possession of the defendant is not adverse to him. So hostile title to the knowledge of the plaintiff must be asserted and proved. The contention, therefore, that the appellants perfected title by adverse possession is devoid of any substance.
31. In the case in hand, the case of the petitioners is that they are the trespassers on the land in dispute. How they became trespassers is also very important and to be noticed and that their status is that of trespasser after the expiry of the period of lease. So it is not the case of the petitioners that they have perfected their title to the property by adverse possession. However in this case, it is not necessary to go on this question and similarly on the question whether the plea that they have perfected their title by adverse possession would be a defence in the proceedings initiated under the Act, 1972. The matter has to be decided only with reference to the provisions of the Act, 1972 and in this Act, as stated earlier, the period of limitation for initiation of the proceedings for eviction of unauthorised occupants from the public premises has not been prescribed. The civil suit is also barred under the Act, 1972 as it comes out from the provisions of Section 16 thereto. It is a special Act and no limitation has been prescribed for taking of the action for eviction of the unauthorised occupants from the public premises and as such the provision of Section 27 of the Act, 1963 is not applicable in the present case. The petitioners in their written arguments have tried to distinguish the decision of Their Lordships of Hon'ble Supreme Court in the case of Patel Naranbhai Marghabhai and Ors. v. Deceased Dhulabhai Galbabhai (supra) on the ground that while deciding the matter the decision of Their Lordships of the Hon'ble Supreme Court in the case of Dindayal v. Rajaram (supra) of the larger Bench has not been referred and considered and as such the decision of the larger Bench will hold the field. However, I do not find any merits in this contention for the obvious reason that the ratio of the decision in the case of Dindayal v. Rajaram (supra) of Their Lordships of the Hon'ble Supreme Court is in context with the facts of that case whereas the ratio of the judgment in the case of Palel Naranbhai Marghabhai and Ors. v. Deceased Dhulabhai Galbabhai (supra) is with reference to the special Act and where Their Lordships of the Hon'ble Supreme Court held that in a special Act if any period of limitation is prescribed then the provisions of Section 27 of the Limitation Act are not applicable.
31.1. In view of the fact that I am satisfied that this matter is squarely covered by the later decision of Their Lordships of the Hon'ble Supreme Court, the other contentions as well as the authorities cited by both the Counsels for the parties are not required to be referred and gone into.
32. In the result, this Special Civil Application fails and the same is dismissed. Rule discharged. Interim relief, if any, granted by This Court stands vacated. However, it is made clear that the order of eviction which has been passed against the petitioners shall be executable only to the extent of part of the property which is in possession of the petitioners. So far as the part of the property in dispute which is in possession of the added respondents is concerned, it is hereby made clear that the Corporation's Counsel has given out that it will settle the matter with these persons. So till the matter is settled with these persons no action shall be taken for eviction of these persons in pursuance of the order of the authorities below. However, in case ultimately the matter is not being settled then the respondent-Corporation shall be entitled to take the appropriate action for eviction of the added respondents. The petitioners are directed to pay the costs of this petition to the respondent-Corporation which is assessed to Rs. 3,000/-.