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Delhi Development Authority Vs. Mohan Lal and Two ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberR.S.As. Appeal Nos. 177D, 179D and 189D of 1966
Judge
Reported in10(1974)DLT35; ILR1973Delhi644
ActsPunjab Land Revenue Act, 1887 - Sections 3(6) and 97; Delhi Development Authorities Act, 1957 - Sections 40A; Uttar Pradesh Town Improvement Act, 1919 - Sections 54A(1)
AppellantDelhi Development Authority
RespondentMohan Lal and Two ors.
Advocates: B. Dayal,; Roshan Lal,; Gaja Nand and;
Cases Referred and Tek Chand v. D.D.A.
Excerpt:
(i) property - injunction - sections 3 (6) and 97 of punjab land revenue act, 1887, section 40a of delhi development authorities act, 1957 and section 54a (1) of uttar pradesh town improvement act, 1919 - appeal against decree passed by senior sub-judge whereby he dismissed appeal filed by appellant - respondent contended that amounts sought to recovered from them had become time barred - no issue raised by respondent on said contention - no evidence adduced to support plea - plea raised and not pressed is deemed to have been waived - order passed by court below liable to be set aside - appeal allowed. (ii) retrospectivity - whether newly added section 40a intended to operate retrospectively - as per well settled law statute depriving person of his right to sue or effecting power of court.....prithvi raj, j.(1) these appeals are against a common judgment in which questions of law involved are the same, and, thereforee, it would be convenient to dispose them of by a single judgment. (2) the appeals have been filed against the decree and judgment dated the 21st february, 1966, passed by shri g. r. luthra, senior sub- judge, delhi whereby he dismissed the appeals filed by the appellant against the decree and judgment dated the 28th august, 1964 & 1st september 1964, passed by shri p. k. bahri, sub-judge 1st class, delhi, whereby the sub-judge decreed the suit of the respondents and granted an injunction against the appellant. in order to appreciate the respective contentions of the parties, it would be relevant to record the salient facts of the cases in the three appeals. (3).....
Judgment:

Prithvi Raj, J.

(1) These appeals are against a common judgment in which questions of law involved are the same, and, thereforee, it would be convenient to dispose them of by a single judgment.

(2) The appeals have been filed against the decree and judgment dated the 21st February, 1966, passed by Shri G. R. Luthra, Senior Sub- Judge, Delhi whereby he dismissed the appeals filed by the appellant against the decree and judgment dated the 28th August, 1964 & 1st September 1964, passed by Shri P. K. Bahri, Sub-Judge 1st Class, Delhi, whereby the Sub-Judge decreed the suit of the respondents and granted an injunction against the appellant. In order to appreciate the respective contentions of the parties, it would be relevant to record the salient facts of the cases in the three appeals.

(3) Mohan Lal, respondent in R.S.A. 177-D of 1966 filed a suit against the appellant seeking an injunction against it from making attachment and ordering sale of his property and from invoking other coercive measures against him for recovery of arrears of ground rent stated to be due from him. He further prayed that a mandatory injunction against the appellant to release his properties which were attached for the realisation of arrears stated to be due from him, be granted.

(4) Mohan Lal by an agreement in 1945 entered with the Delhi Improvement Trust (herein to be called 'the Trust') for collecting ground rent for the Trust for area known as Bag Raoji. Remunerations of Mohan Lal for this work were fixed at 5 per cent of the collection made. On coming into existence of the appellant authority the agreement entered into by Mohan Lal with the Trust continued. On or about 11th June, 1961, the appellant made a demand for the sum of Rs. 42,532.11 against Mohan Lal which amount was stated to be due from him to the appellant on account of recovery of ground rent.

(5) Mohan Lal denied his liability alleging that the entire amount collected by him had already been deposited and that a list of defaulters from whom he was not able to collect the ground rent had been furnished to the appellant asking that the appellant should make direct recoveries from the defaulters. Besides traversing the claim of the appellant, Mohan Lal made a counter claim in respect of certain amounts which were alleged to be due to him. The action of the appellant in recovering the aforesaid amount as arrears of land revenue was challenged, inter alia, on the ground that the amount demanded was neither land revenue nor arrears of land revenue, nor it was within the competence of the appellant to treat it as such; that the relationship between the parties was contractual one and no amount could be claimed by the appellant from the respondent as land revenue or as arrears of land revenue and that the land in respect of which the ground rent was claimed was covered by houses and was not assessed to land revenue and that the provisions of the Punjab Land Revenue Act were not applicable to the said land. Lastly, it was contended that the recovery of the amount in question had become time barred.

(6) The appellant resisted the suit, inter alia, on the ground that Mohan Lal was Lambardar (Nazul) and the amount was recoverable as arrears of land revenue. The action for recovering the amount as arrears of land revenue was defended on the ground that the Collector (Nazul) was competent to make the demand from Mohan Lal of the amount due from him and on default by Mohan Lal, the Collector (Nazul) was further competent to recover the amount as arrears of land revenue. The appellant also challenged the jurisdiction of the Civil Court to entertain the suit.

(7) The trial Court held that the Punjab Land Revenue Act was not applicable to the case and that the Civil Court had jurisdiction to try the suit. The threatened act of recovery by the appellant was held to be without authority and jurisdiction. In the result the suit was decreed and injunction as prayed for was granted.

(8) To complete the factual side of this case it may be mentioned that Mohan Lal by an Indenture made on the 8th November, 1956, in favor of the appellant, undertook to indemnify the Trust 'against all loss and damages, costs and expenses which the Trust has sustained or incurred or shall or may sustain or incur or which has been or may be occasioned by or through the acts of defaults of the said Lambardar whilst in his said office or for by reason of the breach by the said Lambardar his heirs, executors or administrator'.

(9) Durga Pershad respondent in R.S.A. 179-D of 1966 also filed a similar suit against the appellant seeking an injunction restraining the appellant from making recovery of its alleged demand against him, on precisely the same ground as were taken by Mohan Lal respondent in R.S.A. No. 177-D of 1966. In case of Durga Pershad the demand notice was for the sum of Rs. 2,11,483,79. Durga Pershad challenged the recovery on similar grounds on which the recovery was challenged by Mohan Lal. Durga Pershad further alleged that the Delhi Development Authority Act gives no power to the appellant to proceed under the Punjab Revenue Act for the realisation of the alleged dues.

(10) The appellant in its written statement traversed the contentions of Durga Pershad and alleged that the amount due could be recovered as arrears of land revenue.

(11) The trial Court in this case as well upheld the contention of the respondent Durga Pershad. Repelling the contention of the appellant that the amount due from Durga Pershad could be recovered as arrears of land revenue, the trial Court decreed the suit and granted the injunction prayed for.

(12) Before recording the facts of the other case out of which R.S.A. 189-D of 1966 has arisen, it would be relevant here to mention that Durga Pershad by an Indenture made on 29th October, 1957, undertook to indemnify the Trust 'against all loss and damages costs and expenses which the Trust has sustained or incurred or shall or may sustain or incur or which has been or may be occasioned by or through the acts of default of the said Lambardar while in his said office or for or by reason of the breach of the said Lambardar his heirs, executors or administrators'.

(13) Tek Chand respondent in R.S.A. No. 189-D of 1966 also filed a suit seeking injunction against the appellant for restraining it from recovering the amount alleged to be due from him by invoking coercive process under the Punjab Land Revenue Act. Tek Chand by an agreement entered between him and the Trust in 1952 agreed to collect ground rent for Darya Ganj, South Delhi, for the Trust on a remuneration of 5 per cent. Relief of injunction was sought by Tek Chand on the same grounds on which similar relief was sought by Mohan Lal in the suit which he filed against the appellant.

(14) The appellant in the written statement apart from traversing the contentions of Tek Chand resisted the suit on the grounds which were taken by it in the earlier two suits. The trial Court rejecting the contentions of the appellant accepted the plea of Tek Chand and held that the recovery under the Punjab Land Revenue Act could not be made as the alleged arrears were not arrears of land revenue. Consequently the suit was decreed and the injunction prayed for was granted.

(15) It may be stated here that Tek Chand did not make any Indenture like those which were made by Mohan Lal and Durga Pershad respondents in the other appeals undertaking to indemnify the Trust.

(16) Feeling dis-satisfied the appellant filed three appeals against the decree and judgment of the trial Court. The First Appellate Court maintained the decree and judgment of the trial Court and dismissed the appeals. It is under these circumstances that the present appeals have been filed in this Court.

(17) Shri Bishamber Dayal, learned counsel appearing for the appellant, strenuously contended that it was not required to go into the question whether the amounts in dispute which the appellant claim from the respondents were in fact land revenue or not because the question involved was whether the amounts due could be recovered as arrear of revenue. In not approaching the question from this angle, it was urged, the courts below have fallen into an error in holding that the amounts due were not land revenue.

(18) Accordingly, it was contended that the courts below in holding that the amounts sought to be collected from the respondents was not land revenue and as such could not be recovered as arrear of land revenue had misunderstood the question which had resulted in grave miscarriage of justice. It was contended that prior to coming into force of the Delhi Development Act, the property, in respect of which the claim was raised against the respondents, belonged to the Government and was placed at the disposal of the Trust. Referring to Sections 54-A and 54-B of the United Provinces Town Improvement Act, 1919 (U.P. Act Viii of 1919), hereinafter to be called the Improvement Act, it was contended that the amounts due from the respondents could be recovered as arrears of land revenue, irrespective of the fact whether it was land revenue or not.

(19) There is no merit in the first part of the submission that the Court was wrong in holding that the amount sought to be recovered being not land revenue, as defined in the Punjab Land Revenue Act (hereinafter to be called the Revenue Act) was not recoverable as such. The case of the appellant, in this respect, was that the respondents were appointed by the Collector Nazul as. lambardars under the Revenue Act for collection of dues regarding Nazul land placed at the disposal of the Trust by the Central Government. It was alleged that it was the duty of the respondents as lambardar to collect land revenue from the lessees of the land and deposit the same with the Collector Nazul. The Collector Nazul acting under the Revenue Act had passed an order for the recovery of the amounts due from the respondents who were lambardars for Nazul Estate, the amounts were recoverable as arrear of land revenue.

(20) The question which falls for determination, thereforee, would be as to whether the amounts collected by the respondents from various lessees was land revenue due from the Lessers or whether it was on account of ground rent payable by them.

(21) The definition of the 'Land Revenue' as given in Section 3(6) of the Revenue Act includes 'assigned land revenue and any sum payable in respect of land by way of quit rent or of commutation for service to the Government or to a person to whom the Government has assigned the right to receive the payment.' This definition in terms does not state what is 'land revenue'. All that it envisages is that 'land revenue' includes assigned land revenue and any sum payable in respect of land by way of quit rent or of commutation for service to the Government. The term land revenue in its accepted parlance means a 'certain proportion of the annual produce of the land' to which the State is entitled. Besides, the land revenue has to be assessed on the land other than the land occupied as the site of a village which is revenue free. (See Sections 4 and 48 of the Revenue Act). It is the accepted case of the parties that the land in question has been built upon and is no longer under cultivation. That being so, the question of yielding any 'annual produce' to a certain proportion of which the State may become entitled to as land revenue' does not arise. This is obvious from Exhibit P-5, copy of the Settlement Record of the year 1917-1918 pertaining to Darya Ganj (South) in Tek Chand's case (R.S.A. No. 189-D of 1966) wherein it is clearly stated that the land comprised in Darya Ganj (South) area had not been assessed to land revenue. thereforee, no 'land revenue' was assessed in that area in the Settlement that was carried out in the year 1917-1918. The trial Court as also the first appellate Court were right in holding that the amounts sought to be recovered was not 'land revenue' and could not be recovered as arrear of land revenue.

(22) Support was sought by the learned counsel for the appellant from P. Surjya Prakash Rao v. State of Orissa and another 1971 (1) CWR 246 to contend that the rent which a tenant pays to the State is revenue. If it be so, it was urged, the same could be recovered as arrear of land revenue. No assistance can be drawn by the appellants from that case. That was a case where the tenant was cultivating land directly under the State. In that case agricultural land was involved which did not form part of a village site.

(23) Relience was next placed on Nitya Nand v. The Estate Officer, Capital Project Chandigarh 1962 P.L.R. 602, in which the sale price of the thorny bushes and trees standing on Government land was held to be revenue due to the Government and was held to be recoverable as arrears of land revenue. No assistance can be drawn from that case. The sale price in that case was recoverable as arrear of land revenue under clause (b) of Section 98 of the Revenue Act by virtue of the provisions of Section 42 of the said Act.

(24) Besides, 'land revenue' collected by a lambardar and not deposited by him can not be recovered as arrear of land revenue under the Revenue Act. It is only from a defaulter that the land revenue which was due from him and which he had defaulted to pay, can be recovered as arrear of land revenue by the coercive process as contemplated in Sections 97 to 99 of the Revenue Act. 'Defaulter' has been defined in sub-section (8) of Section 3 of the Revenue Act and means a person liable for an arrear of land revenue, and includes a person who is responsible as surety for the payment of the arrear. In other words, it is only a person from whom 'land revenue' was due and who defaulted in making payment of the same, that can be said to be in arreas of land revenue and hence a 'defaulter'.

(25) Now Section 97 of the Revenue Act envisages that when a village officer required by rules u/s 28 of the Act to collect any land revenue or sum recoverable as an arrear of land revenue satisfies a Revenue Officer that the revenue or sum had fallen due and had not been paid to him, the Revenue Officer may, subject to any rules which the Financial Commissioner may make in that behalf, recover it as if it were an arrear of land revenue. It is only when a village officer charged by rules u/s 28 of the Revenue Act to collect any land revenue satisfies a Revenue Officer that the sum had not been paid to him that the Revenue Officer may recover it as if it were an arrear of land revenue. Now the lambardar is a village officer who is required to collect land revenue from a person who is liable to pay the same. It is only when a person who is liable to pay land revenue which had fallen due and had not been paid by him to the lambardar, that the land revenue can be recovered as an arrear of land revenue provided the Revenue Officer is satisfied that the land revenue had fallen due from the person liable to pay the same. When the amount of land revenue had fallen due from a person liable to pay the same either as Principal or as Surety that such a person viz. the Principal or the Surety can be said to be a 'defaulter'. Land revenue as such is not due from a lambardar as he does not take the annual produce of the land on which produce the State is entitled to its 'certain portion' as land revenue. If that is so, a lambardar who after collecting the 'land revenue' fails to deposit the same cannot be said to be a 'defaulter' within the meaning of section 3(8) of the Revenue Act against whom coercive process for the recovery of amount collected by him could be issued. In terms the word 'defaulter' means a person from whom the land revenue was due. A 'lambardar' acts as an agent of the State Government for the recovery of the land revenue. The Government may have its ordinary remedy by proceeding civilly or criminally against a lambardar who after collecting the land revenue fails to deposit the same in the treasury but it is not open to the State Government to proceed against him under the Revenue Act for the recovery of the amount in his hands. I am supported in this view by a decision of the Punjab and Haryana High Court reported as Sarup Singh v. The Collector Hissar and others 1970 P.L.R. 768.

(26) This brings one to the second part of the submission as to whether the amounts due could be recovered as arrear of land revenue. Sub-section (1) to Section 54-A of the Improvement Act envisaged that the Government may, upon such terms as may be agreed upon between the Government and the Trust, place at the disposal of the Trust any properties, or any funds or (lues of the Government and thereupon the Trust shall hold or realise such properties, funds and dues in accordance with such terms; while Subsection (1) to Section 54-B prescribed that any sum of money due to or claimable by the Trust in respect of any properties, funds or dues placed at the disposal of the Trust under sub-section (1) of Section 54-A may be recovered by the Trust as if it was an arrear of land revenue.

(27) It was submitted that the lands, dues in respect of which were being Claimed from the respondents, were Government properties which had been placed at the disposal of the Trust. Further, the amounts sought to be claimed, being moneys due to or claimable by the Trust in respect of the Government property placed at the disposal of the Trust in accordance with the provisions of sub-section (1) to Section 54-A, could be recovered by the Trust as if it was an arrear of land revenue. According to Section 65 of the Trust Act, it was submitted, the Trust, subject to any rules made by the Chief Commissioner under Section 72 of the Improvement Act, may let on hire, lease, sell, exchange or otherwise dispose of, any land vested in or acquired by it under the Improvement Act. In pursuance of the powers enjoyed by the Trust under Section 65, the Trust had, it was submitted, let on hire or on lease the land which vested in the Trust under the Improvement Act. That being so, it was contended, the act of letting on hire or lease the land vested in the Trust in pursuance to the exercise of its powers under Section 65 of the Improvement Act, was a valid act within the competence of the Trust. The respondents, it was contended, were appointed as lambardars for the recovery of the amount due to the Trust from the various occupants of the land who took the land on hire or lease from the Trust. Any sum of money collected by the respondents from the various occupants of the land for and on behalf of the appellants but which was not accounted for by the respondents could, thereforee, be recovered by the Trust as if it was an arrear of land revenue in accordance with the provisions of sub-section (1) of Section 54-B of the Improvement Act.

(28) It was further submitted that with a view to provide for the development of Delhi according to plan and for matters ancillary thereto, the Delhi Development Act 1957 (Act No. 61 of 1957), hereinafter to be called the Act, was passed. Section 3(1) of the Act provided for the Delhi Development Authority. The said section envisages that as soon as may be after the commencement of the Act, the Central Government shall, by notification in the Official Gazette, constitute for the purposes of the Act an authority to be called the Delhi Development Authority (hereinafter referred to as the Authority). Sub-section (1) to Section 60 of the Act provides that from the date of the constitution of the Authority, the Improvement Act shall cease to have effect in the Union Territory of Delhi; while sub-section (2) of Section 60 provides that notwithstanding the provisions of subsection (1):-

'(A) every officer and other employee serving under the Delhi Improvement Trust or the Delhi Development (Provisional) Authority immediately before the date of the constitution of the Authority shall, on and from such date, be transferred to and become an officer or other employee of the Authority with such designations as the Authority may determine and shall hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as he would have held the same if the Authority had not been constituted, and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the Authority: Provided that any service rendered by any such officer or other employee before the constitution of the Authority shall be deemed to be service rendered under it.'

(29) It was, thereforee, submitted that the respondents, who were appointed as lambardars by the Trust, became officers of the Authority. Not only this, it was submitted, by virtue of clause (d) to subsection (2) of Section 60 of the Act, all properties movable and immovable vesting in the Delhi Improvement Trust or the Delhi Development (Provisional) Authority shall be deemed to vest in the Authority. Further, all rents, fees and other sums of money due to the Trust shall be deemed to be due to the Authority by virtue of clause (e) to Sub-section (2) of Section 60.

(30) It was accordingly contended that the respondents, on coming into force of the Act, became the officers of the Authority, and the property which previously vested in the Trust vested in the Authority, and all rents, fees and other sums of money due to the Trust shall be deemed to be due to the Authority. That being so, it was urged, the amounts which were due from the respondents became payable to the Authority. Since the Trust was empowered to recover the amounts due by coercive process as contemplated by Section 54-B of the Improvement Act, it was urged there is no warrant in law to hold that the Authority which was successor of the Trust was not capable of recovering the amounts due from the respondents as arrear of land revenue.

(31) There can be no manner of doubt that before coming into force of the Act, any sum of money due to or claimable by the Trust in respect of any property placed at the disposal of the Trust under sub-section (1) of Section 54-A could be recovered by the Trust as if it was an arrear of land revenue, irrespective of the fact whether the amount was land revenue as such or not.

(32) In otherwords, any sum of money due to the Trust was made ' recoverable as an arrear of land revenue in terms of Section 54-B of the Improvement Act. It was not a condition precedent that the amount sought to be recovered as arrear of land revenue must be land revenue as such; on the contrary, any sum of money due to the Trust was made recoverable as arrears of land revenue.

(33) The Act came into force with effect from December 30, 1957 from which date the Improvement Act ceased to exists. Every officer and other employee serving under the Trust, immediately before the date of the constitution of the Authority under the Act became an officer or employee of the Authority on the enforcement of the Act. Besides, all properties movable and immovable vesting in the Trust, vested in the Authority and all rents, fees and other sums of money due to the Trust shall be deemed to be due to the Authority. All sums of money which, prior to the enforcement of the Act, were due to the Trust, became due to the Authority. In other words, all outstanding amounts due, which were recoverable by the Trust shall be deemed to be due to the Authority and the Authority became entitled to recover the amounts.

(34) The question, however, would be whether the amounts due to the Authority can be recovered by it as arrear of land revenue which, without doubt, the Trust could recover as arrear of land revenue. It is the common case of the parties that the Act as enforced with effect from December 30, 1957, did not contain the procedure for the recovery of the amounts due to the Authority or for the recovery of moneys which were earlier due to the Trust but became payable to the Authority by virtue of clause (e) to Sub-section (2) of Section 60 of the Act.

(35) Detecting this ommission, Section 40-A was inserted in the Act by virtue of Section 20 of the Delhi Development (Amendment Act 1963) which received the assent of the President on December 30, 1963. Section 20 of the Delhi Development (Amendment Act 1963) provides as follows-:-

'20. Insertion of new section 40-A After section 40 of the principal Act, the following section shall be inserted, namely :- 40-A. Mode of recovery of moneys due to Authority:- Any money due to the Authority on account of fees or charges, or from the disposal of lands, building or other properties, movable or immovable, or by way of rents and profits may, if the recovery thereof is not expressly provided for in any other provision of this Act, be recovered by the Authoriy as arrears of land revenue.'

(36) It would, thereforee, be seen that absence of procedure for recovery of sums of money due to the Authority was duly provided in Section 40-A, which prescribes the mode of recovery of moneys due to the Authority and envisages that any money due to the Authority be recovered by it as arrears of land revenue.

(37) The learned counsel for the respondents vehemently contended that the amounts sought to be recovered are prior to the period December 30, 1963 viz. the date with effect from which Section 40-A in the Act came into force. The amounts alleged to be due, thereforee, could not be recovered in pursuance to the provisions of Section 40-A of the Act, which provision was prospective and not retrospective.

(38) Placing reliance on Khatumal Ghanshamdas v. Abdul Qadar Jamal-ud-Din and others : AIR1961MP295 ; National Plannars Ltd. v. Contributors etc. ; Central Bank of India and anothers v. Their Workmen : [1960]1SCR200 ; it was urged that no statute could be construed to have a retrospective operation unless so provided either expressly or was unambigously shown by necessary implication to operate retrospectively.

(39) There can be no dispute to the proposition of law laid down in the above cited authorities and it is a well settled principle of law that a statute, the provisions of which deprive a person of his right to sue or affect the power or jurisdiction of the Court in implementing the statute, should not be construed to have retrospective operation unless its retrospective character is expressed in the statute itself. The point to be determined in the present case, however, would be whether it can be said that by necessary implication or intendment the newly added Section 40-A after Section 40 of the Act was intended to operate retrospectively. It is, no doubt, true that the legislature in terms had not said that the newly added Section 40-A was to operate retrospectively.

(40) As already noted in an earlier part of the judgment, Section 54(B) of the Improvement Act provided that any sum of money due to or claimable by the Trust in respect of any properties, funds or dues placed at the disposal of the Trust under sub-section (1) of Section 54-A could be recovered by the Trust as if it was an arrear of land revenue. By Section 60 of the Act as from the date of the constitution of the Authority, the Improvement Act ceased to have effect in the Union territory of Delhi. According to sub-section (2) clauses (d) and (e) of Section 60 of the Act, all properties movable and immovable vested in the Delhi Improvement Trust or the Delhi Development (Provisional) Authority shall vest in the Authority and all rents, fees and other sums of money due to the Delhi Improvement Trust or the Delhi Development (Provisional) Authority shall be deemed to be due to the Authority. Now under the Improvement Act any sum due to or claimable by the Trust was recoverable as an arrear of land revenue and by virtue of clause (e) of sub-section (2) of Section 60 of the Act all rents fees and other sums of money due to the Trust shall be deemed to be due to the Authority. Since sums of money due to the Trust was recoverable as an arrear of land revenue, which provisions did. not find place in the Act, the omission was supplied by incorporating Section 40-A in the Principal Act whereby any money due to the Authority on account of fees or charges, or from the disposal of lands, buildings or other properties, movable or immovable, or by way of rents and profits can be recovered by the Authority as arrear of land revenue, if the recovery thereof is not expressly provided for in any other provision of the Act. There is no other provision of the Act under which the recovery of the money due to the Authority, as enumerated in Section 40-A was recoverable. Rents, fees and other sums of money due to the Trust shall be deemed to be due to the Authority which rents, fees and sums could be recovered by the Trust as an arrear of land revenue. Since no provision was made in the Act for the recovery of the rents, fees and other sums of money, the legislature thought it fit to rectify the omission by making the amounts due to the Authority recoverable as arrear of land revenue. I am, thereforee, of the opinion that by incorporating Section 40-A the procedure for the recovery of amounts, which was missing in the Act and which existed in the Improvement Act for the recovery of money due to the Trust, had been provided for. Accordingly, it would be seen that the necessary implication of the newly added Section 40-A to the Act is that the said section is intended to be retrospective in its operation. Section 40-A deals with procedure for the recovery of money due to the Authority. That being so, the necessary implication or intendment of the said section is that it was to have retrospective operation.

(41) Even otherwise, with effect from December 30, 1963, when Section 40-A in the Act became operative, the appellants became entitled to recover the claimed amount from the respondents as arrears of land revenue. It cannot be said that even after December 30, 1963, the appellants are not competent to recover the amount alleged to be due as arrear of land revenue. Apart from this aspect of the matter, the language of Section 40-A of the Act discloses an intention that this section was intended to operate retrospectively. This dominant intention of the section is apparent from the language in which this section is couched.

(42) It would be relevant here to note a decision of the Supreme Court in Sree Bank Lid. (in liquidation) v. Sarkar Dutt Roy and Co. : [1965]3SCR708 ,. The Supreme Court in that case was examining the provisions of Section 45-0(1) introduced in the Banking Companies Act (Amendment) Act 1953, which envisaged that notwithstanding anything to the contrary contained in the Indian Limitation Act, 1908, or in any other law for the time being in force, in computing the period of limitation prescribed for a suit or application by a Banking Company which was being wound up, the period commencing from the date of the presentation of the petition for the winding up of the Banking Company shall be excluded. It was contended that the newly incorporated section had no retrospective operation and did not revive a debt which was already barred at the time of its enactment. On examining the said section it was observed that the section had retrospective operation. In coming to the said conclusion their Lordships of the Supreme Court approved the observations made in the case of Pardo v. Bingham (1869) (4) Ch. A 735 ('a) that the rule that a retrospective operation is not to be given to a statute was not invariable and that it was a sound principle in considering whether the intention was that the general rule of statutes being prospective in operation should not be applied, to 'look to the general scope and purview of the statute, and at the remedy sought to be applied, and consider what was the former state of the law and what it was that the legislature contemplated'.

(43) In that case the Supreme Court was hearing an appeal against the Bench decision of Calcutta High Court in Sarkar Dutt Roy and Co. v. Sree Bank Ltd. (In liquidation) reported as : AIR1960Cal243 , In the view taken by the Supreme Court that section 45-0(1) of the Banking Companies (Amendment) Act, 1953 was retrospective in its operation the Court did not approve the view of the Division Bench of the Calcutta High Court to the effect that the right to apply for execution was not a mere matter of procedure and that the immunity which a judgment-debtor had acquired by lapse of time was a substantive right which could not be taken away or impaired in the absence of express words or necessary implication in the statute enlarging the period of limitation.

(44) Examining Section 40-A of the Act, which provides a procedure for the recovery of the money due to the Authority, which procedure was earlier missing in the Act but found a place in the Improvement Act, in the light of the principle deducible from the decision of the Supreme Court in the case of Sree Bank Ltd. (supra), I am of the opinion that the legislature in incorporating the said Section 40-A by necessary implication intended the section to operate retrospectively as the legislature contemplated to provide the missing procedure for the recovery of the amounts due to the Authority.

(45) Section 40-A incorporates only a change in the procedural law prescribing the mode for the recovery of amounts due to the Authority. No litigant can have vested right in a particular forum. It cannot be said by a litigant that a suit or application should be tried by a particular forum which existed on the date his cause of action arose. (See M/s. V.C.K. Bus Service (P) Ltd. Coimbatore and another v. H.B. Sethna amd others : AIR1965Mad149 ,

(46) Besides, Mohan Lal, respondent filed the suit (286/63) on May 17, 1963, Tek Chand, respondent filed the suit (S.N. 413/63) on September 4, 1963, while Durga Pershad filed the suit (S.N. 515/63) on November 12, 1963, whereas Section 40-A of the Act came into force on December 30, 1963, i.e. during the pendency of these suits. The amounts alleged to be due from the respondents having been made recoverable as arrear of land revenue, no exception could be taken to its recovery as such with effect from December 30, 1963. The courts below, thereforee, were wrong in holding that even with effect from December 30, 1963, the amount sought to be recovered from the respondents could not be recovered as arrear of land revenue as a party cannot say as a matter of right that a suit or application should be tried by a particular forum which existed on the date when his cause of action arose.

(47) Another submission of the learned counsel for the respondent was that only such money which is due to the Authority on account of fees or charges, or from the disposal of lands, buildings or other properties, movable or immovable, or by way of rents and profits could be recovered by the Authority as arrear of land revenue in terms of Section 40-A of the Act. In the instant cases, it was submitted, the amounts sought to be recovered from the respondents could not be covered under any of the headings enumerated in Section 40-A of the Act. There is no merit in this submission. The amount collected by the respondents was by way of rents and profits which was collected from the various lessees of the lands. The amount as such could be recovered as arrear of land revenue.

(48) Relying upon the ratio of the decision in the Custodian General of Evacuee Property, New Delhi, and others v. Sardar Harnam Singh 1956 Plr 490 it was submitted that only such sums which are legally recoverable, in other words, the sums which are either admitted or proved to be due, could alone be recovered as arrear of land revenue, but not the sums which are merely alleged or claimed to be due. That was a case in which the main question involved was as to whether the Custodian of Evacuee Property could assess damages for use and occupation of Evacuee Property and recover them as arrear of land revenue under the provisions of Section 48 of the Administration of Evacuee Property Act which envisaged that any sum due to the State Government or to the Custodian under the provisions of the Act may be recovered as if it were an arrear of land revenue. It was in that connection that it was observed that the summary remedy provided by Section 48 for the recovery of sums due to the State Government or to the Custodian must be restricted to sums legally recoverable i.e. sums which were either admitted to be due or were proved to be due but could not be extended to sums which were alleged to be due. In that case the damages had to be ascertained for use and occupation of the Evacuee Property. There can be no dispute to the principle of law laid down in that case. The position, however, in the instant appeals is different. Here the amounts which were recoverable from the lessees was an ascertained amount which was already determined and assessed in each case. That being so, it can be said to be 'proved' amount to be due. The mere denial of the respondent would not make the amount as not proved and thus not recoverable as arrear of land revenue.

(49) On behalf of the respondents it was next contended that the amounts sought to be recovered from them having become barred by time could not be recovered through the coercive process as the said amounts could not be recovered in a suit due to the bar of limitation. Support for this submission was drawn from Hunsraj Gapta and others v. Dehra Dun-Mussooric Electric Tramway Co. Ltd. wherein the Court observed that money due means 'money due and recoverable in a suit' and does not include any monies which could not have been so recovered. Reliance was also placed on Kalu Rain v. N.D.M.C. and another 1965 Plr 1190 wherein it was observed that the rent having become barred by time the respondent had lost the right to recover it in a court of law. Further, the respondent could not be said still to retain the right to recover it by invoking the coercive machinery.

(50) The respondents in the instant cases had raised an objection that the amounts sought to be recovered from them had become time barred but no issue was claimed by them on the said contention and neither any evidence was led. The question as to whether the amounts sought to be recovered had become barred by limitation was a question of fact. The respondents having not claimed any issue and having not led any evidence to this effect the appellants naturally led no evidence to meet the bald assertion contained in the written statement that the amounts were time barred. The respondents, thereforee cannot be allowed to urge at this stage that the amounts claimed are barred by time, as this plca without any evidence having been led on it would prejudicially affect the appellants. Besides the plea raised and not pressed is to be deemed to have been waived or given up by the respondents.

(51) In view of my discussion above on the various contentions raised by the parties, the appeals are allowed. The judgment and decree passed by the First Appellate Court in the case of Mohan Lal v. D.D.A.. Durga Pershad v. D.D.A., and Tek Chand v. D.D.A., dated 21-2-1966, confirming the judgments and decrees dated 28-8-1964 and 1-9-1964, passed by Shri P. K. Bahri, Sub-Judge 1st Class, Delhi, in the above referred to cases, whereby the suits of the respondents were decreed, are set aside. The suits of the respondents are accordingly dismissed. The respondents shall pay the costs of the appellants.


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