judgement:
Civil Appeal No. 1823 of 1969.
Apeal by Special Leave from the Judgment and Order dated the 27th/28th/30th January, 1967 of the Gujarat High Court in Special Civil Application No. 163 of 1962.
B. R. Agarwala for the Appellant.
I. N. Shroff for the Respondents.
Dr. L. M. Singhvi, Advocate General, Rajasthan, V. section Dave and section M. Jain for Intervener, Municipal Council, Jodhpur.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by special leave arises from the judgment of the Gujarat High Court dated January 27, 28 and 30, 83 1967.
The two petitioners before the High Court were firms trading in certain commodities within the limits of the Municipal Borough of Broach.
The grievance in one of the petitions was that the Municipality had collected certain amounts wrongfully, and the grievance in the other petition was that the Municipality had refused some amounts even though they were refundable under its byelaws.
Both the petitions concerned goods which were "imported" within the octroi limits of the Municipality but came to be "exported" therefrom.
The first petition was in respect of a consignment which was designated as a through consignment, and the second petition concerned goods in transit and goods for export other than those which could be called goods in transit.
The amounts in dispute related to the levy of octroi under section 73(i) of the Bombay Municipal Boroughs Act, 1923, hereinafter called the Act, which provides as follows: "73 (i) Subject to any general or special orders which the State Government may make in this behalf and to the provisions of sections 75 and 76, a Municipality may impose for the purposes of this Act any of the following taxes, namely: * * * * * (iv) an octroi on animals or goods or both, brought, within the octroi limits for consumption, use or sale therein;.
" The word "sale" was included within the ambit of octroi when the Act was amended in 1954.
The High Court took note of the rules and the bye laws and held that it was not possible to take the view that the rules contemplated that no refund was payable in case the goods had undergone a sale during the course of their stay in octroi limits.
It accordingly came to the conclusion that in regard to goods meant for export in the sense defined in the rules, refund was claimable even if a sale transaction in the larger sense (i.e. in a sense other than a sale to a consumer or with the intention that the goods must pass into hands of the ultimate consumer) took place in regard thereto, provided that the other conditions were satisfied.
The High Court then examined the correct interpretation of the word "sale" in clause (iv) of section 73(i) of the Act and after considering this Court 's judgment in Burmah Shell Oil Storage and Distributing Co. India Ld.
vs The Belgaum Borough Municipality,(1) it held that the word "sale" could not be given the narrow meaning of a sale for consumption to the ultimate consumer because, in that sense, the Legislature would be guilty of having introduced a word which it was not necessary for it to introduce.
The High Court made a reference to the definition of "sale" in section 4 of the Sale of 84 Goods Act and held that the expression "sale" as used in the definition of 'through consignments" in the rules had the same connotation as in the Sale of Goods Act and therefore "if a consignment is brought within the octroi limits and if the municipal authorities are satisfied that the consignment has been brought in for the purpose of effecting a sale in the aforesaid sense, then the consignment does not become a through consignment." According to the High Court, it was not enough merely to prove that the consignment left the octroi limits within six hours after the goods were imported and that it was necessary to show that the goods were intended only to pass through in the sense that they were not meant for consumption, use or sale, and that in regard to such goods there was no intention of changing hands by way of sale or that there was no intention of breaking their bulk or detaining them beyond six hours or unloading them.
In the view it took, the High Court issued some directions for compliance by the authorities concerned.
The writ petitioners felt dissatisfied with the view taken by the High Court and applied for a certificate under articles 132(1) and 133(1) (c) of the Constitution.
The High Court held that no question arose under article 132, and no certificate could be granted under article 133 as there was no final order.
The petitioners however applied to this Court for special leave on the ground, inter alia, that the High Court put a wrong interpretation on the expression "sale" in section 73(i)(iv) of the Act inspite of the decision of this Court in Burmah Shell 's case (supra).
As has been stated, they succeeded in obtaining special leave from this Court.
When the case came up for hearing before a Division Bench, it noticed the decision in Burmah Shell 's case (supra) and felt that there were "burred areas" of sale within the territory which may attract a tax under entry 52 (List II of Seventh Schedule) left uncertain by the aforesaid decision of this Court so that the matter deserved consideration by a larger Bench.
This is how the case has come up before us for hearing.
We have allowed Municipal Council, Jodhpur, to intervene in the hearing at its request.
The short question before us is whether this Court 's decision in the Burmah Shell 's case (supra) squarely covers the present controversy or whether that decision requires reconsideration.
The learned counsel have in fact confined their arguments to this narrow field.
In order to appreciate the controversy, it will be desirable to refer to the basic facts of the Burmah Shell 's case (supra).
The Burmah Shell Oil Storage and Distribution Co. India Ltd., hereinafter referred to as the Company, was a dealer in petrol and other petroleum products which it manufactured in its refineries situated out side the octroi limits of Belgaum Municipality.
It brought these products inside that area either for use or consumption by itself or for sale generally to its dealers and licensees who in their turn sold them to others.
According to the Company the goods brought by 85 it within the octroi limits could be divided into four categories as follows: 1.
Goods consumed by the Company; 2.
Goods sold by the Company through its dealers or by itself and consumed within the octroi limits by persons other than the Company; 3.
Goods sold by the Company through its dealers or by itself inside the octroi limits to other persons but consumed by them outside the octroi limits; and 4.
Goods sent by the Company from its Depot inside the octroi limits to extra municipal points where they are bought and consumed by persons other than the company.
This Court examined the scheme of taxation under the Act and the rules and the bye laws made by the Municipality for the levy of octroi.
It also took note of the fact that the words "use or sale" were substituted for the words "or use" by Bombay Act 35 of 1954, which are the subject matter of a fresh controversy before us, and made a reference to the Legislative Lists in the Government of India Act, 1935 and the Constitution.
After examining the history of octrois and terminal taxes, this Court held that "octrois were taxes on goods brought into the local area for consumption, use or sale", and that "they were leviable in respect of goods put to some use or other in the area but only if they were meant for such user.
" It was specifically clarified that the word "sale" was included only in 1954 in order to bring the description of octroi in the Act in line with the Constitution, and that the expression "consumption" and "use" together "connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses them up.
" Looking to the trade of the Company, this Court held that sale by it directly to consumers or to dealers was "merely the means for putting the goods in the way of use or consumption" and that the word "therein" does not mean that all the act of consumption must take place in the area of the municipality.
The Court therefore went to hold as follows. "In other words, a sale of the goods brought inside, even though not expressly mentioned in the description of octroi as it stood formerly, was implicit, provided the goods were not re exported out of the area but were brought inside for use or consumption by buyers inside the area.
In this sense the amplification of the description both in the Government of India Act, 1935 and the Constitution did not make any addition to the true concept of 'octroi ' as explained above.
That concept included the bringing in of goods in a local area so that the goods come to a repose there.
When the Government of India Act, 1935 was enacted, the word 86 'octroi ' was deliberately avoided and a description added to forestall any dispute of the nature which has been raised in this case.
In other words, even without the description the tax was on goods brought for 'consumption, use or sale '.
The word 'octroi ' was also avoided because terminal taxes are also a kind of octroi and the two were to be allocated to different legislatures.
In our opinion, even without the word 'sale ' in the Boroughs Act the position was the same provided the goods were sold in the local area to a consumer who bought them for the purpose of use or consumption or even for resale to others for the purpose of use or consumption by them in the area.
It was only when the goods were re exported out of the area that the tax could not legitimately be levied. " This Court categorically held that the Company was liable to pay octroi on goods brought into the local area (a) to be consumed by itself or sold by it to consumers direct, and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it, but it was "not liable to octroi in respect of goods which it brought into the local area and which were re exported.
" The law on the subject matter of the present controversy has thus been laid down quite clearly in the Burmah Shell 's case (supra) and the present case squarely falls to be governed by it.
We are also in agreement with that interpretation of the law.
It may be mentioned that the learned counsel have not been able to advance any new argument justifying a reconsideration of the decision.
The appeal is allowed, the impugned judgment of the High Court is set aside and the respondents are directed to examine and determine the claims of the appellant in accordance with the above decision.
The appellant will be entitled to costs from the respondents.
P.B.R. Appeal allowed.

summary:
Section 73(i)(iv) of the Bombay Municipal Boroughs Act 1925 empowers a municipal borough to impose octroi on animals or goods or both brought within the octroi limits for consumption, use of sale therein.
The appellant imported certain consignments of goods within the octroi limits of the municipality and exported them, the consignments being termed as "through consignments" or "goods in transit" or "goods for export".
Octroi duty was imposed on the goods and the appellant filed a petition before the High Court challenging the levy.
The High Court held that the expression 'sale ' used in the definition of "through consignments" in the rules had the same connotation as in the Sale of Goods Act and, therefore, if a consignment was brought within the octroi limits and if the municipal authorities were satisfied that the consignment had been brought in for the purpose of sale, then the consignment did not become a through consignment.
Allowing the appeal to this Court, ^ HELD: The law on the subject has been clearly laid down in Burmah Shell Oil Storage and Distributing Company (India) Ltd. vs The Belgaum Borough Municipality and the present case is governed by that decision.
It was held in that case that the company was liable to pay octroi on goods brought into the local area, if the goods are: (a) to be consumed by the Company itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area and irrespective of whether such consumer bought them for use in the area or outside it; but it was not liable to octroi in respect of goods which were brought into the local area and were re exported.
[86 C D] Buimah Shell Oil Storage and Distributing Co. India Ltd. vs The Belgaum Borough Municipality [1963] Suppl.
2 S.C.R. 216, explained and applied


judgement:
Civil Appeals Nos. 1870 and 1871 of 1970 and 1445 of 1971.
Appeal from the Judgment and Order dated 25 4 1969 of the Gujarat High Court in Special Civil Appeals Nos. 218/68 and 1441/66 respectively and 29 D. V. Patel and M. N. Shroff, for the appellants in all the appeals.
section T. Desai (In CA 1871), P. H. Parekh & Manju Jetley for Respondents.
section M. Jain, section K. Jain and Inder Makwana for Respondent 1 in CAs.
1871 and 1445.
P. K. Pillai for Respondent 2 and 3 in CA 1871.
The Judgment of the Court was delivered by JASWANT SINGH, J.
These three appeals Nos.
1870 of 1970, 1871 of 1970 and 1445 of 1971 by certificate granted by the High Court of Gujarat at Ahmedabad under Article 133(1)(b) & (c) of the Constitution of India against its common judgment and order dated April 25, 1969 shall be disposed of by this judgment.
The facts giving rise to these appeals are: On May 20, 1961, the Government of Gujarat issued a notification under section 4 of the Land Acquisition Act 1894 (hereinafter referred to as 'the Act ') declaring that certain pieces of land in village Vasana, Taluka City, District Ahmedabad specified in Schedule thereto were likely to be needed for a public purpose viz. for construction of houses for members of Yogeshwarnagar Co operative Housing Society Limited, Ahmedabad.
On June 18, 1962, respondent No. 1 in Civil Appeal No. 1445 of 1971, owners of some pieces of the aforesaid land filed Special Civil Application No. 564 of 1962 in the High Court of Gujarat under Article 226 of the Constitution challenging the validity of the aforesaid notification dated May 20, 1961 made under section 4 of the Act and seeking to restrain the Government from proceeding further with the acquisition proceedings contending inter alia that the land could not be acquired for the benefit of the Company in which the public was not directly interested.
Interim injunction sought by the petitioner in that petition having been refused, the Additional Special Land Acquisition Officer, Ahmedabad, appellant No. 2 in these appeals proceeded to hold the requisite enquiry under section 5A of the Act and submitted report to the Government on a consideration whereof the latter issued a notification under section 6 of the Act on April 29, 1963.
The notification inter alia stated that the lands mentioned in the Schedule thereto were needed to be acquired at the public expense for the public purpose specified in column 4 of the Schedule to the notification viz., the scheme undertaken by Shri Yogeshwarnagar Co operative Housing Society Limited with the sanction of the Government.
Notices under section 9(i) of the Act were served and the Special Land Acquisition Officer after holding the requisite enquiry made an award on December 21, 1963 determining the amount of compensation payable by the Government to the owners of the land.
On demand being made for possession of land, respondent No. 1 in Civil Appeal No. 1870 of 1970, who is the owner of some pieces of land sought to be acquired brought another Special Civil Application 30 No. 1100 of 1963 under Article 226 of the Constitution in the High Court challenging the aforesaid notification under sections 4 and 6 of the Act and on his application, the High Court passed an interim order restraining the Government from taking possession of the lands.
On April 15, 1966, the Government of Gujarat in supersession of the earlier resolution dated December 21, 1962 whereby it had sanctioned rupee one towards the cost of acquisition, passed another resolution sanctioning contribution of Rs. 500/ towards the cost of acquisition.
Considering that the notification dated April 29, 1963, issued by it under section 6 of the Act was illegal and invalid, the Government of Gujarat by notification dated April 28, 1966, cancelled its earlier notification dated April 29, 1963 issued under section 6 of the Act and issued a fresh notification in respect of the same pieces of land under section 6 of the Act on June 6, 1966.
Respondent No. 1 in Civil Appeal No. 1445 of 1971 and petitioner in Special Civil Application No. 564 of 1962 thereupon amended its application with the leave of the Court so as to include a challenge to the validity of the fresh notification under section 6 of the Act.
The petitioner in the aforesaid Special Civil Application No. 1100 of 1963 did not amend his application but filed a fresh petition under Article 226 of the Constitution being Special Civil Application No. 218 of 1968 challenging the fresh notification under section 6 of the Act.
Yet another petition under Article 226 of the Constitution being Special Civil Application No. 1441 of 1966 was filed in the High Court on November 20, 1966 by respondent No. 1 in Civil Appeal No. 1871 of 1970 challenging the validity of the fresh notification dated June 6, 1966 issued under section 5 of the Act.
All these petitions were heard together.
While the High Court by common judgment dated April 25, 1969 dismissed petition No. 1100 of 1963 as infructuous in view of the fresh notification under section 6 of the Act, it allowed the other three aforesaid petitions following its earlier decision in Special Civil Application Nos. 316, 625 and 811 of 1965 and quashed the fresh notification dated June 6, 1966 issued by the Government of Gujarat under section 6 of the Act holding inter alia that the "cancellation of the first section 6 notification would, in any event, tantamount to withdrawal from acquisition and no subsequent notification under section 6 of the Act could, thereafter be issued without a fresh notification under section 4 of the Act.
" The appellants thereupon applied for and obtained certificate referred to above.
It is how these appeals are before us.
Although two important points were raised in the aforesaid writ petitions viz. (1) whether the acquisition of land for Co opertive Housing Society is a public purpose and (2) whether the Government could cancel the notification dated April 29, 1963 issued by it under section 6 of the Act and issue a fresh notification dated April 28, 1966 under the said section of the Act, the first point does not survive and has rightly not been canvassed before us in view of the decisions of this Court in Ratilal Shankerbhai & Ors.
vs State of Gujarat & Ors.(1) Pandit Jhandu Lal & Ors.
vs The State of Punjab(2) and Ram 31 Swarup vs The District Land Acquisition Officer, Aligarh & Ors.(1) In these cases, it has been made clear that ordinarily the Government is the best authority to determine whether the purpose in question is a public purpose or not; it cannot be contended that a housing scheme for a limited number of persons cannot be considered as a public purpose; and the need of a section of the public may be a public purpose.
The second contention raised on behalf of the contesting respondents that the cancellation of the first section 6 notification amounts to withdrawal from acquisition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notification under section 4 of the Act cannot be countenanced in view of the decision of this Court in Girdharilal Amratlal Shodan and Ors.
vs State of Gujarat and Ors.(2) where it was categorically held that when a notification under section 6 of the Act is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the Act precludes the Government from doing so and that the cancellation of the earlier notification is only a recognition of the invalidity of that notification.
The following observations made therein are apposite: "Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 (under section 6), the power of the State Government to issue a notification under section 6 was exhausted and the Government could not issue a fresh notification under section 6.
There is no substance in this contention.
The notification dated July 18, 1961 was invalid.
By the issue of this notification, the Government had not effectively exercised its power under section 6.
In the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964.
" No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors.
vs Vishnu Prasad Sharma and Ors.(3) which turned on another point.
In that case after the issue of the notification under section 4(1) of the Act, a number notifications in respect of different items of land included in the locality specified in the notification under section 4(1) of the Act were issued under section 6.
The following observations made in that case are pertinent: "But as we read these sections (viz. sections 4, 5A and 6) together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs.
This is followed by a declaration under section 6 32 specifying the particular land needed and that in our opinion completes the process. .
At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particularised . .
The sequence of events from a notification of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under section 6 particularising the area out of the area in the locality specified in the notification under section 4(1) is issued, the remaining non particularised area stands automatically released".
Thus in view of the decision of this Court in Girdharilal Amartlal Shodan 's case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand.
In the result, the appeals are allowed and the said judgment of the High Court is quashed.
The parties are left to bear and pay their own costs in these appeals.
P.H.P. Appeals allowed.

dataset_name: IN-Abs

summary:
The Government of Gujarat issued a notification under section 4 of the Land Acquisition Act, 1894.
The validity of the said notification was challenged by the owners of the land.
The Government later issued a notification under section 6 of the Land Acquisition Act after holding enquiry under section 5A.
The owners of the land challenged the said notification under section 6 by filing another Writ Petition.
Thereafter the award was made by the Land Acquisition Officer.
The Government sanctioned a sum of Re. 1/ towards cost of acquisition.
The acquisition was for the purpose of a Cooperative Housing Society.
Later on, the Government passed a resolution in supersession of the earlier resolution and sanctioned a sum of Rs. 500/ toward cost of acquisition.
The Government considered section 6 notification to be illegal and invalid and cancelled the same and issued a fresh notification under section 6 in respect of the same land.
The owner of the land filed a further Writ Petition challenging the notification by which the earlier section 6 notification was cancelled and a fresh section 6 notification was issued.
The High Court dismissed the Writ Petition against the first section 6 notification as infructuous.
The High Court allowed the other Writ Petition against the second section 6 notification and quashed it on the ground that the cancellation of the first section 6 notification would in any event, tantamount to withdrawal from acquisition and secondly since section 4 notification was exhausted by the first section 6 notification no subsequent notification under section 6 of the Act could thereafter be issued.
Allowing the appeal by certificate ^ HELD: 1.
Acquisition of land for Cooperative Housing Society is for public purpose as laid down by this Court in Ratilal Shankarbhai and Ors.
vs State of Gujarat A.I.R. 1970 SC 984.
[31 C] 2.
The contention that the cancellation of the first section 6 notification amounts to withdrawal from acquisition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notification under section 4 of the Act cannot be countenanced in view of the decision of this Court in Girdhari Lal Amratlal Shodan and Ors.
vs State of Gujarat reported in ; , when a notification under section 6 of the Act is invalid the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the Act precludes the Government from doing so.
The cancellation of the earlier notification is only a recognition of the invalidity of that notification and does not amount to withdrawal from acquisition.
[31 C D]


judgement:
Civil Appeal No. 988 of 1968.
(From the Judgment and order dated the 8 4 1965 of the Punjab High Court, Circuit Bench Delhi now the High Court of Delhi in Civil Writ No. 228 G of 1962).
Hardyal Hardy, B. P. Maheshwari, Suresh Sethi and Bikaramjit Nayar; for the appellant.
A. K. Sen, D. P. Bhandare, Mrs. Laxmi Arvind Mathur and section section Khanduja; for the respondents.
The Judgment of the Court was delivered by GUPTA, J.
Respondent Kalu Ram was pavement vendor in Connaught place, New Delhi.
In 1950 the appellant.
New Delhi Municipal Committee, provided a number of displaced persons with small pre fabricated stalls to enable them to do their business.
Kalu 88 Ram who was also a displaced person was allotted one such stall on Irwin Road.
Rupees thirty was the licencee fee payable per month by the allottees of these stalls.
Later, the allottees, including the respondent, applied to the Rent Controller for reducing the rent.
It is not necessary to refer to the various proceedings arising from these applications for fixation of standard rent which were ultimately dismissed by the Circuit Bench of the Punjab High Court at Delhi as not maintainable.
In the meantime, many of the allottees fell in arrears in paying the licence fees.
So far as the respondent is concerned, the appellant took no steps to recover the dues till December 1960 when it demanded the entire amount in arrears from May 1950 to April 1957.
The respondent not having paid, the appellant asked the Estate Officer, appointed under section 3 of the , to take steps to recover the amount in arrears under section 7 of that Act.
The Estate Officer, who is the second respondent herein, made an order on September 28, 1961 under section 7(1) of the Act asking the respondent to pay the sum overruling his objection that the claim was barred by limitation.
The respondent 's appeal to the Additional District Judge from the Estate Officer 's order was disallowed.
The respondent then filed a writ petition before the Circuit Bench of the Punjab High Court at Delhi challenging the order against him.
One of the grounds of challenge was that section 7 could not be resorted to for recovery of the sum as the claim was time barred.
The High Court accepted the contention and allowed the petition.
In this appeal by certificate, the appellant, New Delhi Municipal Committee, questions the correctness of the High Court 's decision.
The only contention raised before us by Mr. Hardy appearing for the appellant is that the High Court was wrong in holding that the amount in question could not be recovered under section 7 because the time for instituting a suit to recover the sum had expired.
Admittedly, any suit instituted on the date when the Estate Officer made his order under section 7(1) would have been barred by time.
Mr. Hardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and section 7 of the providing a different and special mode of recovery was therefore available to recover rent in arrears beyond three years.
Section 7 as it stood at the relevant time reads : Power to recover rent or damages in respect of public premises as arrears of land revenue.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the 89 estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order: Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under sub section (1) or the damages or any instalment thereof payable under sub section (2) within the time specified in the order relating thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.
" As would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent.
It was argued that since section 7 did not put a time limit for taking steps under that section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent 's objection.
In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English.
We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars the remedy without touching the right.
Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time however provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property.
But on the facts of this case no question of a suit for possession of any property arises and section 28 has no application.
It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitting him to enforce his claim, would be free to avail of it.
But the question in every such case is whether the particular statute permits such a course.
Does section 7 of the create a right to realise arrears of rent without any limitation of time ? Under section 7 the Estate Officer may order any person who is in arrears of rent 'payable ' in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order.
Before however the order is made, a notice must issue calling upon the defaulter to show cause way such order should not he made and, if he raised any objection, the Estate Officer must consider the same and the evidence produced in support of it.
Thus the Estate Officer has to determine 90 upon hearing the objection the amount of rent in arrears which is 'payable. ' The word 'payable ' is somewhat indefinite in import and its meaning must he gathered from the context in which it occurs.
'Payable ' generally means that which should be paid.
If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws.
If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable.
When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law.
Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time barred.
Construing the expression "any money due" in section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others vs Official Liquidators of the Dehradun Mussorie Electric Tramway Company Ltd.(1) that this meant moneys due and recoverable in suit by the company, and observed: "it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment.
It creates no new rights.
" We are clear that the word "payable" in section 7, in the context in which its occurs, means "legally recoverable." Admittedly a suit to recover the arrears instituted on the day the order under section 7 was made would have been barred by limitation.
The amount in question was therefore irrecoverable.
This being the position, the appeal fails and is dismissed with costs.
M.R. Appeal dismissed.

summary:
In 1950, the appellant allotted small pre fabricated stalls to several displaced persons including the respondent, at the licence fee of rupee thirty payable per month.
Later, these allottees applied for a fixation of standard rent but ultimately lost in the Punjab High Court at Delhi, Meanwhile, the respondent fell in arrears in paying the licence fee.
In December, 1960, the appellant demanded from him the entire amount in arrears from May 1950 to April 1957 but he failed to pay.
In September 1961, the Estate Officer ordered the respondent under section 7(1) of the Act, to pay the sum, overruling his objection that the claim was barred by limitation.
The respondent 's appeal to the Additional District Judge was rejected, but the Punjab High Court at Delhi allowed his writ petition on the ground that section 7 could not be availed in case of time barred claims.
The appellant contended before this Court that the Limitation Act only barred the remedy by way of suit and did not extinguish the right which could still be exercised through section 7 of the Act.
Section 7 did not put a time limit for taking action under it, and was, therefore, not subject to the limitation prescribed for a suit to recover the amount.
Dismissing the appeal, the Court, ^ HELD: Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time barred.
The word "payable" in Section 7 in the context in which it occurs, means "legally recoverable".
[90 B & D] Hans Raj Gupta and others vs Official Liquidator of the Dehradun Mussoorie Electric Tramway Co. Ltd. 60 I.A. 13, followed.


judgement:
Nos. 186 & 195 of 1954.
Under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
S.C. Isaacs, (Mohan Behari Lal and P. K. Ghosh, with him) for the petitioners in both petitions.
M. C. Setalvad, Attorney General of India (Porus A.Mehta and P. G. Gokhale, with him) for the respondents.
September 22.
The Judgment of the Court was delivered by IMAM J.
These petitions under article 32 of the Constitution of India question the validity of the notifications issued under section 52 A of the Insurance Act of 1938 (hereinafter referred to as the Act) and the appointment of an Administrator.
In the case of the Tropical Insurance Company Ltd. an Administrator was appointed, under notification dated the 14th of July, 1951 and in the case of the Jupiter General Insurance Company Ltd. another Administrator was appointed under notification dated the 10th of July, 519 1951.
These two insurance companies do insurance business of life insurance and general insurance.
Admittedly previous to the appointment of the Administrators the Controller issued notices under section 52 A to the petitioners and the Finance Ministry of the Central Government sent letters to them pointing out the allegations in the report of the Controller to which they replied.
The learned Counsel for the petitioners has candidly stated that he could not raise any constitutional point after the fourth amendment to the Constitution of India.
He assumed; therefore, that the provisions of sections 52 A to 52 G of the Act were constitutional but he urged that the notifications under section 52 A and the taking over of the management of the affairs of the companies were invalid inasmuch as they were in excess of the powers conferred by section 52 A of the Act and that the notifications appointing the Administrators do not fix the period of management as required by law.
He further urged that the provisions of the section 52 B of the Act had not been complied with and in consequence the management by the Administrator had been excessively prolonged and thus had become unlawful.
There has, therefore, been a violation of the fundamental rights of the petitioners.
Finally it was urged that there was no authority either under the provisions of the Act or of any other law by which the Government was empowered to take over management of the affairs of the company with respect to its general insurance business.
The power of the Government under section 52 A was restricted exclusively to life insurance business.
As to the first two contentions, they were urged in Petitions Nos. 94 of 1954 and 183 of 1954, but were not allowed to be put forward by this Court as these questions had not been specifically raised in the petitions under article 32 of the Constitution and they were accordingly dismissed.
The position is similar in this respect so far as the present applications are concerned and consequently it must be held that the petitioners cannot be allowed now to urge grounds which they had not taken in their petitions.
66 520 There remains, however, to consider the last contention urged on behalf of the petitioners.
It was pointed out by Mr. Isaacs that the petitioners are insurance companies doing both life insurance business and general insurance business.
He contends that a section 52 A of the Act, on a true interpretation of its provisions, applies only to the life insurance business carried on by an insurer and not to the general insurance business done by him.
The Administrator appointed under section 52 A of the Act could therefore take over management only of the life insurance business done by the insurer.
The notifications authorising him to take over the management of the insurance business of the insurer including his general insurance business were thus beyond the powers conferred on Government under section 52 A of the Act and such taking over of the management of the general insurance business of the petitioners by the Administrator was, therefore, without lawful authority.
In view of the submission made by the learned Counsel, it is necessary to set out the relevant provisions of the section 52 A. Sub section (1) of that section states: "If at any time the Controller has reason to believe that an insurer carrying on life insurance business is acting in a manner likely to be prejudicial to the interests of holders of life insurance policies, he may, after giving such opportunity to the insurer to be heard as he thinks fit, make a report thereon to the Central Government".
Sub section (2) states: "The Central Government, if it is of opinion after considering the report that it is necessary or proper to do so, may appoint an Administrator to manage the affairs of the insurer under the direction and control of the Controller".
Sub section (4) states: "The management of the business of the insurer shall as on and after the date of appointment of the Administrator vest in such Administrator, but except with the leave of the Controller, the Administrator shall not issue any further policies" 521 Section 52 B of the Act is concerned with the powers and duties of the Administrator.
Under this section, the Administrator shall conduct the management of the business of the insurer with the greatest economy ' compatible with efficiency and shall, as soon as may be possible, file with the Controller a report stating what specified courses under the section should be taken which would be most advantageous to the general interest of the holders of life policies.
One of the courses specified is the winding up of the business of the insurer.
Section 52 D of the Act is concerned with termination of the appointment of the Administrator.
Section 53 of the Act is concerned with the winding up by the Court and it enables the Controller to apply to the Court for winding up of an insurance company on certain grounds, one of them being that the continuance of the company would be prejudicial to the interests of the policy holders.
Mr. Isaacs urged that the Act made a clear distinction between life insurance business and general insurance business of an insurer.
He referred to various sections of the Act with reference to Registration, Separation of Accounts and Funds and Balance Sheets.
It was also pointed out by him that the Act defines "general insurance business" and "life insurance business" and these two kinds of businesses are quite distinct.
There could be little doubt that the Act does regard "life insurance business" as something distinct from "general insurance business".
It seems to us, however, that while keeping this distinction in mind, we have to give to the words used in section 52 A(1) their ordinary and natural meaning.
"Insurer" has been defined in section 2 of the Act.
The definition speaks of an insurer carrying on an insurance business.
This business may be either a life insurance business or a general insurance business or both.
Under section 7 of the Act deposits have to be made by every insurer other than an insurer specified in sub clause (c) of clause (9) of section 2.
The section specifies the amount of deposit to be made where the business done is life insurance only.
Similarly it specifies the deposit to be made in the case of business 522 done which comes within the description of general insurance business only.
It also contemplates a combination of life insurance business and general insurance business and specifies the deposit to be made in such event.
It is clear that section 52 A(1) does not apply to an insurer doing only general insurance business.
The question for decision is does it apply to him when he 'also does along with such business insurance business? Section 52_A(1) speaks of "an insurer carrying on life insurance business".
It does not speak of "only life insurance business".
It is permissible for an insurer to combine in his insurance business both life and general insurance business.
If he acts in a manner which is likely to be prejudicial to the interests of the holders of the life insurance policies with him, he makes himself amenable to the provisions of the section 52 A of the Act and the Controller is authorised to make a report to the Central Government.
The Central Government, after con sidering the report, may appoint an Administrator to manage "the affairs" of the insurer and the management of "the business" of the insurer shall vest in the Administrator.
The words "the affairs" and "the business" of the insurer are wide enough to empower the Central Government to take over the management of the entire business of the insurer including his general insurance business.
To hold otherwise would be to give an unnaturalmeaning to the words used in section 52 A of the Act.
In the present case the insurers are public limitedcompanies and it is difficult to conceive that the Act intended to vest in the Administrator the management of only the life insurance business while the insurers would be free to manage the general insurance business, because under section 52 B the Administrator may suggest to the Controller for the winding up of the company after managing its insurance business economically and efficiently.
Under section 53 a Court may order a winding up of an insurance company if on an appli cation by the Controller, it is satisfied that the con tinuance of the company is prejudicial to the interests of the policy holders.
The winding up of the com 523 pany would be concerned with its entire insurance business ,including life and general insurance business, because there could be no partial winding up of a company.
It is not difficult to imagine that the affairs of the company with reference to its general insurance business may be in such a hopeless state that winding up may be the only course to be taken to protect the interests of the life policy holders.
When the provisions of the Act are closely examined, it will be noticed that its main policy has been to safeguard the interests of life policy holders, who are deeply affected by the manner in which the insurance business of an insurer is carried on.
We have no difficulty in interpreting section 52 A(1) to mean that where an insurer is carrying on insurance business of various kinds which includes life insurance business, he becomes amenable to the provisions of section 52 A if he is acting in a manner prejudicial to the interests of the holders of life policies and he would have to suffer the consequences following the report made by the Controller and the appointment of an Administrator by the Government.
The provisions in the Act making a distinction between life insurance business and general insurance business, the keeping of separate accounts and balance sheets have been enacted for the safeguard of the holders of life insurance policies and they provide an over all picture of the business done by the insurer showing the exact state of affairs concerning the life insurance business of the insurer.
These provisions cannot and do not affect the provisions of of section 52 A of the Act.
These petitions are accordingly dismissed with costs to be paid by Petitioners 2, 3 and 4 in Petition No. 186 of 1954 and Petitioners 2 and 3 in Petition No. 195 of 1954.

summary:
The petitioners, two Insurance Companies, carrying on business both in life insurance and general insurance, questioned the validity of notifications issued against them under section 52 A of the Insurance Act for appointment of Administrators to take over management of their affairs on the ground, inter alia, that section 52 A was exclusively restricted to life insurance business and the Government had no power to take oyer management of general insurance busi ness.
Held, that the Insurance Act of 1938 no doubt makes a distinction between life insurance business and general insurance business, but its main concern is to protect life insurance policy holders.
Although section 52 A of the Act has no application to an insurer who carries on business in general insurance alone, it undoubtedly applies to an insurer who combines both and gives the Central Government the power, on the report of the Controller, to appoint an Administrator to take over the management of the entire business of the insurer including general insurance business when such insurer is found to act in a manner prejudicial to the interests of the life policy holders.
That grounds not specifically taken in petitions under article 32 cannot be urged at the time of the hearing.