(2013) 302 KLR 263

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

THURSDAY, THE 4TH DAY OF APRIL 2013/14TH CHAITHRA 1935

WP(C).No. 2584 of 2010 (W)

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PETITIONER(S):

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R. PADMINI, AGED 56 YEARS,

W/O.VEERANANDAN, T.C.NO.60/3900, SARAS-55,

SREEVARAHAM, THIRUVANANTHAPURAM,

NOW AT T.C.NO.40/1112, SUMANGALI, SARAS 97,

SREEVARAHAM, THIRUVANANTHAPURAM.

BY ADVS.SRI.LATHEESH SEBASTIAN,

SRI.M.FATHAHUDEEN.

RESPONDENT(S):

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1. STATE OF KERALA,

REPRESENTED BY THE CHIEF SECRETARY,

SECRETARIAT, THIRUVANANTHAPURAM.

2. THE DISTRICT COLLECTOR,

THIRUVANANTHAPURAM.

3. THIRUVANANTHAPURAM DEVELOPMENT

AUTHORITY (TRIDA), REPRESENTED BY ITS SECRETARY,

JAYAMANSION, VAZHUTHACADU, THIRUVANANTHAPURAM.

4. THE ESTATE OFFICER (SECRETARY),

THIRUVANANTHAPURAM DEVELOPMENT AUTHORITY (TRIDA),

SASTHAMANGALAM P.O., THIRUVANANTHAPURAM.

5. THE DEPUTY TAHSILDAR (RR),

THIRUVANANTHAPURAM.

6. VILLAGE OFFICER, MUTTATHARA VILLAGE,

THIRUVANANTHAPURAM.

R1, R2, R5 & R6 BY GOVT. PLEADER SMT.K.A. SANJEETHA.

R3 & R4 BY ADV. SRI.K.A.JALEEL, SC., TRIDA.

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 2584 of 2010 (W)

APPENDIX

PETITIONER'S EXHIBITS:-

·         EXT.P1 COPY OF THE LEASE DEED DATED 05/01/2000.

·         EXT.P2 COPY OF THE ORDER OF THE 4TH RESPONDENT.

·         EXT.P3 COPY OF THE DEMAND NOTICE.

·         EXT.P4 COPY OF THE REPLY TO EXT.P3.

·         EXT.P5 COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 20/02/2006.

·         EXT.P6 COPY OF THE REVENUE RECOVERY NOTICE.

·         EXT.P7 COPY OF THE APPEAL.

·         EXT.P8 COPY OF THE JUDGMENT IN W.P.(C)NO. 23747/2008.

·         EXT.P9 COPY OF THE JUDGMENT IN W.P.(C)NO. 1054/2009.

·         EXT.P10 COPY OF THE ARGUMENT NOTES.

·         EXT.P11 COPY OF THE ORDER DATED 11/01/2010.

RESPONDENT'S EXHIBITS:-

·         EXT.R3A COPY OF THE CONSENT LETTER DATED 28/12/1999 GIVEN BY THE PETITIONER TO THE RESPONDENT 3 AND 4.

·         EXT.R3B COPY OF THE NOTICE DATED 19/05/2000 ISSUED BY THE RESPONDENTS 3 AND 4 TO THE PETITIONER.

·         EXT.R3C COPY OF THE NOTICE DATED 26/07/2000 SENT BY THE RESPONDENTS 3 AND 4 TO THE PETITIONER.

·         EXT.R3D COPY OF THE NOTICE DATED 08/11/2000 ISSUED BY THE RESPONDENTS 3 AND 4 TO THE PETITIONER.

·         EXT.R3E COPY OF THE DETAILS OF THE ARREARS AMOUNT DUE TO THE RESPONDENTS 3 AND 4 FROM THE PETITIONER.

//TRUE COPY//

P.A. TO JUDGE rs.

ANTONY DOMINIC,J

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W.P.(C) No.2584 of 2010

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Dated this the 4th day of April, 2013

Head Note:-

Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968 – Sections 8 & 13 - Amount due towards notice and eviction charges and interest on arrears of rent or security deposit - invoking the provisions of the Act, irrespective of the agreement between the parties, what can be recovered by the estate officer are amounts due towards rent, damages and costs and nothing else.

JUDGMENT

Heard the learned counsel for the petitioner, the learned standing counsel for respondents 3 and 4 and also the learned Government Pleader appearing for the others.

2. The petitioner challenges Ext.P11, an appellate order passed by the District Collector exercising powers under the Kerala Public Buildings(Eviction of unauthorised Occupants) Act, 1968(hereinafter referred to as 'Act' for short). According to the petitioner, he was conducting a textile shop in a building of her own, which was acquired by the third respondent. Even thereafter, she continued to occupy the building as a tenant until the building was demolished for the construction of a shopping complex. When the shopping complex was constructed, she was allotted room No. F-3 and Ext.P1 is the lease deed that was entered into between the petitioner and the third respondent.

3. The period of the lease was three years and though the petitioner was to remit security deposit of Rs.7,92,800/-, she remitted only 1/4th of the amount. Although she continued to occupy the room, the petitioner neither deposited the balance security deposit nor paid the rent. Finally, Ext.P2 eviction notice dated 29.01.2005 was issued and she was evicted from the room on 22.03.2005.

4. Thereafter, she was issued Ext.P3 demand notice dated 02.04.2005 demanding payment of Rs.12,19,484/-. In this demand, notice issued under Section 8 of the Act, Rs.5,75,151/- was demanded towards arrears of rent for the period from 5.01.2000 till 22.3.2005, Rs.189/- was demanded towards notice charges and eviction charges and Rs.5,13,148/- was demanded towards interest that the respondents would have earned, if the petitioner had deposited the security deposit. Further, Rs.2,73,427/- was also demanded towards interest on arrears of rent and Rs.5,000/- was demanded towards damages. From this liability, Rs.1,43,431/- available towards the security deposit was deducted and balance amount demanded from the petitioner is Rs.12,19,484/-. The petitioner filed Ext.P4 objection. That was rejected by the fourth respondent as per Ext.P5 proceedings. Challenging the proceedings, the petitioner filed Ext.P7 appeal and that was rejected by the District Collector as per Ext.P11 order. As a result, revenue recovery proceedings initiated against the petitioner by Ext.P6 was being continued. It is in these circumstances, this writ petition is filed.

5. First contention raised by the counsel for the petitioner is that invoking the provisions of the Act, the amount due towards notice and eviction charges and interest cannot be realised. This contention of the petitioner has to be dealt with in the light of the provisions of the Act itself. Section 8(1) of the Act enables the estate officer to recover arrears of rent payable in respect of any public building and sub section (2) enables recovery of damages payable under Section 7. Section 13 of the Act provides for recovery of rent, damages and costs awarded to Government as arrears of public revenue due on land. The expression 'rent' has been defined in Section 2(e) as the consideration payable periodically for the authorized occupation of the building and it includes any charge for electricity, water or any other services in connection with the occupation of the building and any tax payable in respect of the building. Therefore, invoking the provisions of the Act, irrespective of the agreement between the parties, what can be recovered by the estate officer are amounts due towards rent, damages and costs and nothing else. If these be the statutory provisions in the Act, the estate officer could not have invoked the provisions under Section 8 of the Act and demanded from the petitioner, amounts due towards notice and eviction charges and interest on arrears of rent or security deposit. Therefore, the first contention raised by the learned counsel for the petitioner deserves to be accepted and I do so.

6. The second contention raised is that demand for arrears of rent for the period from 05.01.2000 to 22.03.2005 was made for the first time by Ext.P3 notice under Section 8 of the Act. It is argued that at the time when Ext.P3 was issued at least a portion of the amount had become time barred and hence could not have been recovered. Going by the provisions of the Limitation Act, the period of limitation prescribed is three years and if that be so, any amount due from the petitioner for the period prior to three years from 02.04.2005 when Ext.P3 issued was time barred. Therefore, the amount demanded from the petitioner for the period from 05.01.2000 to 02.04.2002 was barred by limitation and could not have been demanded. It is true that the counsel for the third respondent brought to my notice, various notices that were issued by the third respondent demanding payments from the petitioner. Even if these notices are accepted to have been issued, the fact that such notices were issued will not arrest the operation of the law of limitation and therefore, the third respondent cannot take advantage of those notices and contended that the debt in question is not a time barred one.

7. It was then contended by the learned counsel for the petitioner that a portion of the security deposit has been adjusted towards the arrears of rent due from the petitioner for the period when he was the tenant in the old building. According to the petitioner, such an adjustment is not possible. In my view, there is no substance in this contention because any amount due to the third respondent could have been realized from the security deposit. Further, even if it is assumed that the rent due is in relation to the old premises and has become time barred, nothing prevented the third respondent from appropriating the same from the security deposit of the petitioner and therefore, such adjustment was perfectly valid. This is for the reason that law of limitation only bars recovery through courts and the liability is not wiped off. If that be so, balance security deposit available with the respondents was only Rs.1,43,431/-.

A reading of Exts.P5 and P11 orders passed show that none of these issues have been considered by the authorities and therefore, I set aside Exts.P5 and P11 and dispose of the writ petition with the following directions:

1. The matter will stand remitted to the fourth respondent. He shall reconsider the issue in the light of the aforesaid observations and with notice to the petitioner.

2. It is also clarified that although the rent for the period up to 22.03.2002 has become time barred as held by me in this judgment, nothing prevents the authority from adjusting the security deposit of the petitioner against those dues and recovering the remaining amounts which is not time bared from the petitioner in accordance with the provisions of the Act.

3. It is also clarified that this judgment will not be to the prejudice of the third respondent in initiating action in accordance with law for recovering those dues which are not recoverable under the provisions of the Act.

Sd/-

ANTONY DOMINIC, JUDGE ln