'
ITEM NO. 1A Court No.10 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No..... of 2013 @ SLP(C) No. 9196 of 2008
BOARD OF TRUSTEES OF PORT OF KANDLA Appellant (s)
VERSUS
HARGOVIND JASRAJ AND ANR. Respondent (s)
Date : 09/01/2013 This Petition was called on for judgment today.
For Appellant (s) M/s. Parekh and Co.
For Respondent(s) Mr. Ejaz Maqbool, Adv.
Ms. Aishwarya Bhati, Adv.
Hon'ble Mr. Justice T.S.Thakur pronounced Judgment of the
Bench comprising His Lordship and Hon'ble Mrs. Justice Gyan Sudha
Misra.
Leave granted.
The appeal is allowed in terms of the signed
judgment. There shall be no order as to costs.
(Shashi Sareen) (Veena Khera)
Court Master Court Master
Signed Reportable judgment is placed on the file.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 153 OF 2013
(Arising out of S.L.P. (C) No.9196 of 2008)
Board of Trustees of Port of Kandla ...Appellant
Versus
Hargovind Jasraj & Anr. ...Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal arises out of a judgment and order dated 26th
December, 2007 passed by the High Court of Gujarat at Ahmedabad whereby
Civil Second Appeal No.17 of 2007 filed by the appellant has been dismissed
and the judgment and decree passed by the Courts below affirmed. The facts
giving rise to the filing of this appeal may be summarised as under:
3. A parcel of land admeasuring 1891.64 square meters situated in
Sector 30, Gandhidham in the State of Gujarat was granted in favour of Smt.
Pushpa Pramod Shah-respondent No.2 in this appeal on a long-term lease
basis. A formal lease-deed was also executed and registered in favour of
the lessee stipulating the terms and conditions on which the lessee was to
hold the land demised in her favour. The respondent-lessee it appears
committed default in the payment of the lease rent stipulated in the lease-
deed with the result that the appellant-lessor issued notices dated 12th
December, 1975 and 17th July, 1976 calling upon the lessee to pay the
outstanding amount with interest and stating that the lease of the plot in
question shall stand determined under Clause 4 thereof and possession of
the demised premises taken over by the appellant-Port Trust in case the
needful is not done.
4. In response to the notices aforementioned the lessee by
communication dated 18th November, 1976 requested the appellant-Port Trust
to permit her to resell the plots for a symbolic consideration and to
obtain the refund of the instalment amount already paid to the Port Trust.
The letter sought to justify the default in the payment of arrears on the
ground of an untimely demise of her husband, resulting in cancellation of
expansion programme including any further acquisition of land by the
lessee.
5. Failure of the lessee to remit the outstanding instalment amount
culminated in the termination of the lease by the appellant-Port Trust in
terms of an order dated 8th August, 1977 w.e.f. 13th December, 1978. A
panchnama prepared on 14th December, 1978 evidenced the takeover of
possession of the plot in question by the appellant-Port Trust, copy
whereof was forwarded even to the lessee along with a certificate that the
possession had been taken over by the Assistant Estate Manager of the
appellant-Port Trust under his letter dated 20th December, 1978.
6. On receipt of the letter aforementioned the lessee by her letter
dated 22nd February, 1979 requested the appellant-Port Trust to refund the
amount and in case a refund could not be made, to return the possession of
the plot to her. One year and four months after the issue of the said
letter the lessee-respondent No.2 herein filed Civil Suit No.152 of 1980 in
the Court of Civil Judge, Gandhidham, in which she prayed for a decree for
permanent injunction restraining the defendants, its officers and servants
from interfering with her peaceful possession over the plot in question.
The immediate provocation for the filing of the said suit was provided by
the appellant-Port Trust proposing to re-auction the plot in question. The
plaintiff's case in the suit was that she was in actual physical possession
of the plot which rendered the proposed auction thereof unreasonable. An
interim application was also filed in the said suit in which the Court
granted an ex-parte order of injunction that was subsequently vacated by a
detailed order passed on 5th September, 1980 holding that the plaintiff was
not entitled to the relief of injunction. It is common ground that suit
No.152 of 1980 was eventually dismissed on 18th January, 1985 for non-
prosecution.
7. Almost six years after the dismissal of the first suit, another
Suit No.126 of 1991 was filed, this time by respondent No.1-Hargovind
Jasraj against respondent No.2-Smt. Pushpa Pramod Shah for a permanent
prohibitory injunction restraining defendant No.2-lessee of the plot, her
agents, servants and representatives from interfering with the plaintiff's
possession over the plot in dispute. According to averments made in the
said suit the lessee had not been carrying on any business activities in
Gandhidham nor was she using the plot in question and that she was finding
it difficult to look after and administer the plot after the death of her
husband. She had, therefore, sold the plot to the plaintiff-respondent No.1
in this appeal in terms of a registered document. It was further alleged
that the cause of action to file the suit accrued a few days before the
filing of the suit when defendant-lessee had through her representative
asked the plaintiff to vacate the suit plot which demand was in breach of
the sale agreement between the parties. Apprehending dispossession from the
plot in question plaintiff-respondent No.1 sought a decree for injunction
against respondent No.2. The appellant-Port Trust, it is noteworthy, was
not impleaded as a party to the suit which too was dismissed for non-
prosecution on 15th March, 2002.
8. Five years later and pending disposal of the second suit mentioned
above, a third suit being Suit No.77 of 1996 was filed by respondent No.1
this time asking for a declaration and permanent injunction in which the
plaintiff for the first time questioned the termination of the lease by the
appellant-Port Trust. A declaration that the said lease was still
subsisting with an injunction restraining the defendant-appellant in this
appeal and its employees from acting in any manner injurious to the title
and the possession of the plaintiff over the disputed land was prayed for.
Plaintiff's case in this suit was that he had purchased the plot in
question from Smt. Pushpa Pramod Shah in the year 1991 in terms of a
transfer deed registered with the concerned Sub-Registrar at Gandhidham and
that he had based on the said transfer asked for transfer of the lease
rights which request had been declined by the appellant-Port Trust in the
year 1994. It was further alleged that he had come to know about the
purported cancellation of the lease in favour of Smt. Pushpa Pramod Shah
and the purported takeover of the possession of the plot from her which was
according to him both fraudulent and invalid in the eyes of law.
9. The suit was contested by the appellant-Port Trust on several
grounds giving rise to as many as seven issues framed by the trial Court
for determination. The suit was eventually decreed by the said Court,
aggrieved whereof the appellant-Port Trust filed an appeal before the First
Appellate Court who partly allowed the said appeal by its judgment and
order dated 16th November, 2006. The Appellate Court affirmed the decree
passed by the Courts below in so far as the trial Court had declared that
the lease-deed in question had not been validly terminated by the lessor
and the same continued to be subsisting but allowed the appeal setting
aside that part of the judgment passed by the trial Court whereby the trial
Court had directed the appellant-Port Trust to transfer the lease rights in
favour of the plaintiff-respondent No.1 in this appeal.
10. The appellant-Port Trust appealed to the High Court against the
above judgment and decree which has been dismissed by the High Court in
terms of the order impugned before us holding that no substantial question
of law arose in the light of the concurrent findings of fact recorded by
the courts below. The High Court found that since the earlier suits had not
been decided on merits, no final adjudication had taken place in the same
so as to attract the doctrine of res judicata to the issues raised in the
third suit out of which the present proceedings arise.
11. Appearing for the appellant Mr. Pravin H. Parekh, learned senior
counsel, strenuously argued that the courts below had fallen in serious
error in holding that the termination of the lease by the appellant-Port
Trust was invalid or that the lease continued to be valid and subsisting.
The question whether the Senior Estate Manager was competent to terminate
the lease and enter upon the suit property was not, argued Mr. Parekh,
joined as an issue by the courts below and could not be made a basis for
holding the termination to be unauthorised or invalid. Alternatively, he
submitted that the termination order had been passed as early as in the
year 1977 whereas the suit in question was filed in the year 1996 after a
lapse of nearly 18 years. The possession of the plot was also taken over on
14th December, 1978 which fact was acknowledged unequivocally by the lessee
in her letter dated 22nd February, 1979. That being so, any suit aimed at
challenging the validity of the termination or assailing validity of the
process by which the possession was taken over from the lessee should have
been filed within a period of six months from the date the cause of action
accrued to the lessee in terms of Section 120 of the Major Port Trust Act.
At any rate, such a suit could be filed, at best within three years from
the date the cause of action accrued to the lessee. Neither the lessee nor
her transferee who came on the scene long after the termination order had
been passed and the possession taken over could question the validity of
the termination of the lease or demand protection of their possession in
the light of a clear and unequivocal admission made by the lessee in her
letter dated 22nd February, 1979 that the possession of the plot in
question stood taken over from her. The courts below have, in that view,
committed a mistake in holding that the suit was within time.
12. Mr. Ahmadi, counsel appearing for the respondent, on the other
hand, submitted that the courts below had recorded a concurrent finding of
fact that the lessee continued to be in possession of the suit property
even after the termination of the lease which finding of fact could not be
assailed nor was there any legal impediment for the plaintiff transferee or
the original lessee who too was joined as a plaintiff in the year 1999 to
seek protection of their possession. It was further argued by Mr. Ahmadi
that the admission made by the lessee in her letter dated 22nd February,
1979 was not unequivocal and stood explained by the attendant circumstances
including the demise of her husband and resultant inability of the lessee
to go ahead with the expansion programme or to pay remainder of the lease
amount.
13. The Trial Court has, while dealing with the question of
dispossession of the lessee from the disputed plot, recorded a rather
ambivalent finding. This is evident from the following observations made by
it in its judgment:
".....Further Panchnama submitted alongwith Ex.49 cannot be said to be
panchnama of taking physical possession of the plot because the plot is
open. Even at present it is open and there are bushes of the Babool Trees
and as such it is difficult to hold anything about possession that of
Pushpaben or K.P.T. IT cannot be believed that by mere preparing panchnama
the possession has been taken from the person who is in possession of the
plot. The K.P.T. has not taken the possession vide Ex. 49 in the presence
of Pushpaben. Under the said circumstances the plot is open and it is as
it is......."
(emphasis supplied)
14. It is manifest that there is no clear finding of fact regarding
possession of the suit property having continued with the lessee, no matter
the lease stood terminated and a panchnama evidencing takeover of the
possession drawn and even communicated to her. The first Appellate Court in
appeal filed against the above judgment and decree also did not record a
specific finding that the possession of the plot had not been taken over by
the Port Trust no matter the documents relied upon by it evidenced such
take over. The first Appellate Court instead held that the termination of
the lease was not valid inasmuch as no notice regarding termination in
terms of Sections 106 and 111(g) of the Transfer of Property Act, 1882 had
been proved and served upon the lessee nor was it proved that the person
who signed notice Exhibit 47 and who took over possession in terms of
panchnama enclosed with Exhibit 49 had been authorised by the Kandla Port
Trust, the lessor, to do so. The conclusions drawn by the first Appellate
Court were summarised in paragraph 59 of its judgment in the following
words:
"59. In view of what is stated in foregoing paras of this judgment this
Court come to the following conclusions: -
1. The appellant/original defendant has failed to prove the
service of notice terminating the lease as required under
Section 111(g) and 106 of the Transfer of Property Act upon
the lessee i.e. the Respondent No. 2/original plaintiff No.
2.
2. The defendant/the present appellant failed to prove that the
person who signed the notice Ex. 47 and the person who is
alleged to have made re-entry on the suit plot and signed
Ex.49 and panchnama produced along with Ex. 49 were
specifically authorised by Kandla Port Trust i.e. the lessor
and the Chairman of Kandla Port Trust.
3. The lease dated 14/12/1966 is not legally and validly
determined by the lessor hence, it is subsisting till date
and alive, and the lessee Smt. Pushapaben Shah i.e. the
respondent No. 2 is entitled to hold and enjoy the suit plot
No. 30 sector No. 8."
15. In the second appeal filed by the appellant, the High Court was of
the view that the matter was concluded by concurrent findings of fact
regarding the validity of the termination of the lease and the authority of
those who purported to have brought about such a termination. The
question whether the possession of the suit plot was taken over did not
engage the attention of the first Appellate Court or the High Court
although the latter proceeded on the basis that the findings of fact
recorded by the Courts below were concurrent, without pointing out as to
what those findings were and how the same put the issue regarding takeover
of the possession from the lessee beyond the pale of any challenge.
Suffice it to say that the respondents are not correct in urging that the
dispossession of the lessee pursuant to the termination of the lease was
not proved as a fact. None of the Courts below has recorded a clear finding
on this aspect even though the trial Court has in its judgment briefly
touched that issue but declined to record an affirmative finding in the
matter. That apart a careful reading of the passage extracted above from
the order passed by the trial Court shows that the trial Court was
labouring under the impression as though possession of the vacant piece of
land cannot be taken over by the lessor unless some overt act of actual
occupation of the plot is established. The fact that wild bushes were
growing on the plot was, in our opinion, no reason to hold that the
panchnama prepared by the Port Trust authorities evidencing the takeover of
the plot was inconsequential or insufficient to establish that the process
of dispossession of the lessee had been accomplished. We need to remember
that with the termination of the lease, the title to the suit property
vested in the lessor, ipso jure. That being so, possession of a vacant
property would follow title and also vest in the lessor. Even so, the
Panchnama drawn up at site recorded the factum of actual takeover of the
possession from the lessee, whereafter the possession too legally vested in
the lessor, growth of wild bushes and grass notwithstanding. We need not
delve any further on this aspect for we are of the view that there could
be no better evidence to prove that the lessee had been dispossessed from
the plot in question than her own admission contained in her communication
dated 22nd February, 1979 addressed to the Senior Estate Manager of the
appellant-Trust. The letter may at this stage be extracted in extenso:
"Dear Sir,
I am in receipt of your letter No. ES/LL/723/63/9180 dated 20th
December 1978 informing that the Assistant Estate Manager has taken over
the plot No. 30 Sector 8. Please note, you have not informed me to be
present on 4 PM on 14.12.1978 at the site of the aforesaid plot and your
letter No. ES/LL/723/63/6248 dated 8th August 1977 said to have been sent
to me has not yet been received and hence you do not have the authority to
re-enter the plot.
As you have taken the possession of the plot, you are now requested to
kindly refund all the amounts forthwith otherwise you may return back the
possession of plot to me. If I do not hear anything from you within seven
days from the date of receipt of this letter, appropriate legal proceedings
will be adopted against you, holding you entirely responsible for the cost
of consequences thereof.
Yours faithfully,
Sd/- P.P. Shah
(Smt. Pushpa P. Shah)"
(emphasis supplied)
16. The genuineness of the above document was not disputed by learned
counsel for the respondents. All that was argued was that the admission
regarding the dispossession of the lessee had been made in circumstances
that (a) cannot constitute an admission and (b) absolve the lessee, the
maker, of its binding effect. The husband of the lessee having passed away,
the letter in question was written in a state of shock and distress and any
admission made therein could not argued Mr. Ahmadi and Ms. Bhati be treated
as an admission in the true sense. We regret our inability to accept that
submission. The question is whether possession had indeed been taken over
from the lessee pursuant to the termination of the lease. The answer to
that question is squarely provided by the letter in which the lessee makes
an unequivocal and unconditional admission that possession had indeed been
taken over by the appellant-Port Trust. What is significant is that the
lessee had asked for refund of the amount paid by her towards instalments
and in case such a refund was not possible to return the plot to her. We do
not think that such an unequivocal admission as is contained in the letter
can be wished away or ignored in a suit where the question is whether the
lessee had indeed been dispossessed pursuant to the termination of the
lease. There is no worthwhile explanation or any other reason that can
possibly spell a withdrawal of the admission or constitute an explanation
cogent enough to carry conviction with the Court. We have in that view no
hesitation in holding that dispossession of the lessee had taken place
pursuant to the termination of the lease deed in terms of panchnama dated
14th December, 1978.
17. The next question then is whether the suit for declaration to the
effect that the termination of the lease was invalid and that the lease
continued to subsist could be filed more than 17 years after the
termination had taken place. A suit for declaration not covered by Article
57 of the Schedule to the Limitation Act, 1963 must be filed within 3 years
from the date when the right to sue first arises. Article 58 applicable to
such suits reads as under:
| |Description of suit |Period of |Time from which |
| | |Limitation |period begins to run |
|58. |To obtain any other |Three years |When the right to sue|
| |declaration. | |first accrues. |
18. The expression right to sue has not been defined. But the same
has on numerous occasions fallen for interpretation before the Courts. In
State of Punjab & Ors. V. Gurdev Singh (1991) 4 SCC 1, the expression was
explained as under :
"..........
The words "right to sue" ordinarily mean the right to seek relief by means
of legal proceedings. Generally, the right to sue accrues only when the
cause of action arises, that is, the right to prosecute to obtain relief by
legal means. The suit must be instituted when the right asserted in the
suit is infringed or when there is a clear and unequivocal threat to
infringe that right by the defendant against whom the suit is instituted."
19. Similarly in Daya Singh & Anr. V. Gurdev Singh (dead) by LRs. &
Ors. (2010) 2 SCC 194 the position was re-stated as follows:
"13. Let us, therefore, consider whether the suit was barred by limitation
in view of Article 58 of the Act in the background of the facts stated in
the plaint itself. Part III of the Schedule which has prescribed the period
of limitation relates to suits concerning declarations. Article 58 of the
Act clearly says that to obtain any other declaration, the limitation would
be three years from the date when the right to sue first accrues.
14. In support of the contention that the suit was filed within the period
of limitation, the learned Senior Counsel appearing for the appellant-
plaintiffs before us submitted that there could be no right to sue until
there is an accrual of the right asserted in the suit and its infringement
or at least a clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted. In support of this
contention the learned Senior Counsel strongly relied on a decision of the
Privy Council in reported in AIR 1930 PC 270 Bolo v. Koklan. In this
decision Their Lordships of the Privy Council observed as follows:
'... There can be no 'right to sue' until there is an accrual of the right
asserted in the suit and its infringement, or at least a clear and
unequivocal threat to infringe that right, by the defendant against whom
the suit is instituted.'
15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa AIR
1961 SC 808 in which this Court observed: (AIR p.810, para 7)
' ... The period of six years prescribed by Article 120 has to be computed
from the date when the right to sue accrues and there could be no right to
sue until there is an accrual of the right asserted in the suit and its
infringement or at least a clear and unequivocal threat to infringe that
right.'
In C. Mohammad Yunus, this Court held that the cause of action for the
purposes of Article 58 of the Act accrues only when the right asserted in
the suit is infringed or there is at least a clear and unequivocal threat
to infringe that right. Therefore, the mere existence of an adverse entry
in the revenue records cannot give rise to cause of action.
..........Accordingly, we are of the view that the right to sue accrued
when a clear and unequivocal threat to infringe that right by the
defendants......."
20. References may be made to the decisions of this Court in Khatri
Hotels Pvt. Ltd. & Anr. V. Union of India & Anr. (2011) 9 SCC 126 where
this Court observed:
"While enacting Article 58 of the 1963 Act, the legislature has designedly
made a departure from the language of Article 120 of the 1908 Act. The word
"first" has been used between the words "sue" and "accrued". This would
mean that if a suit is based on multiple causes of action, the period of
limitation will begin to run from the date when the right to sue first
accrues. To put it differently, successive violation of the right will not
give rise to fresh cause and the suit will be liable to be dismissed if it
is beyond the period of limitation counted from the day when the right to
sue first accrued."
(emphasis
supplied)
21. The right to sue in the present case first accrued to the lessee
on 13th December, 1978 when in terms of order dated 8th August, 1977 the
lease in favour of the lessee was terminated. A suit for declaration that
the termination of the lease was invalid hence ineffective for any reason
including the reason that the person on whose orders the same was
terminated had no authority to do so, could have been instituted by the
lessee on 14th of December 1978. For any such suit it was not necessary
that the lessee was dispossessed from the leased property as dispossession
was different from termination of the lease. But even assuming that the
right to sue did not fully accrue till the date the lessee was dispossessed
of the plot in question, such a dispossession having taken place on 14th of
December, 1978, the lessee ought to have filed the suit within three years
of 15th December, 1978 so as to be within the time stipulated under Article
58 extracted above. The suit in the instant case was, however, instituted
in the year 1996 i.e. after nearly eighteen years later and was, therefore,
clearly barred by limitation. The Courts below fell in error in holding
that the suit was within time and decreeing the same in whole or in part.
22. Mr. Ahmadi next argued that the termination of the lease being
illegal and non est in law, the plaintiff-respondents could ignore the
same, and so long as they or any one of them remained in possession, a
decree for injunction restraining the Port Trust from interfering with
their possession could be passed by the Court competent to do so. We are
not impressed by that submission. The termination of the lease deed was by
an order which the plaintiffs ought to get rid of by having the same set
aside, or declared invalid for whatever reasons, it may be permissible to
do so. No order bears a label of its being valid or invalid on its
forehead. Any one affected by any such order ought to seek redress against
the same within the period permissible for doing so. We may in this regard
refer to the following oft quoted passage in Smith v. East Elloe Rural
District Council (1956) 1 All ER 855. The following are the observations
regarding the necessity of recourse to the Court for getting the invalidity
of an order established:
"An order, even if not made in good faith is still an act capable of legal
consequences. It bears no brand of invalidity on its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity
and to get it quashed or otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable of orders.
This must be equally true even where the brand of invalidity is plainly
visible : for there also the order can effectively be resisted in law only
by obtaining the decision of the court. The necessity of recourse to the
court has been pointed put repeatedly in the House of Lords and Privy
Council without distinction between patent and latent defects."
23. The above case was approved by this Court in Krishnadevi Malchand
Kamathia & Ors. v. Bombay Environmental Action Group and Ors. (2011) 3 SCC
363, where this Court observed:
"19. Thus, from the above it emerges that even if the order/notification
is void/voidable, the party aggrieved by the same cannot decide that the
said order/notification is not binding upon it. It has to approach the
court for seeking such declaration. The order may be hypothetically a
nullity and even if its invalidity is challenged before the court in a
given circumstance, the court may refuse to quash the same on various
grounds including the standing of the Petitioner or on the ground of delay
or on the doctrine of waiver or any other legal reason. The order may
be void for one purpose or for one person, it may not be so for another
purpose or another person."
24. To the same effect is the decision of this Court in Pune
Municipal Corporation v. State of Maharashtra and Ors (2007) 5 SCC 211,
where this Court discussed the need for determination of invalidity of an
order for public purposes:
"36. It is well settled that no order can be ignored altogether unless a
finding is recorded that it was illegal, void or not in consonance with
law. As Prof. Wade states: "The principle must be equally true even where
the 'brand of invalidity' is plainly visible: for there also the order can
effectively be resisted in law only by obtaining the decision of the
Court".
He further states:
"The truth of the matter is that the court will invalidate an order only if
the right remedy is sought by the right person in the right proceedings and
circumstances. The order may be hypothetically a nullity, but the Court may
refuse to quash it because of the plaintiff's lack of standing, because he
does not deserve a discretionary remedy, because he has waived his rights,
or for some other legal reason. In any such case the 'void' order remains
effective and is, in reality, valid. It follows that an order may
be void for one purpose and valid for another, and that it may
be void against one person but valid against another."
xx xx xx xx
38. A similar question came up for consideration before this Court in State
of Punjab and Ors. v. Gurdev Singh (1992) ILLJ 283 SC ...
39. Setting aside the decree passed by all the Courts and referring to
several cases, this Court held that if the party aggrieved by invalidity of
the order intends to approach the Court for declaration that the order
against him was inoperative, he must come before the Court within the
period prescribed by limitation. "If the statutory time of limitation
expires, the Court cannot give the declaration sought for"."
25. Reference may also be made to the decisions of this Court in R.
Thiruvirkolam v. Presiding Officer and Anr. (1997) 1 SCC 9, State of Kerala
v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors.
(1996) 1 SCC 435 and Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber
Industries Pvt. Ltd. etc. (1997) 3 SCC 443, where this Court has held that
an order will remain effective and lead to legal consequences unless the
same is declared to be invalid by a competent court.
26. It is true that in some of the above cases, this Court was dealing
with proceedings arising under Article 226 of the Constitution, exercise of
powers whereunder is discretionary but then grant of declaratory relief
under the Specific Relief Act is also discretionary in nature. A Civil
Court can and may in appropriate cases refuse a declaratory decree for good
and valid reasons which dissuade the Court from exercising its
discretionary jurisdiction. Merely because the suit is within time is no
reason for the Court to grant a declaration. Suffice it to say that filing
of a suit for declaration was in the circumstances essential for the
plaintiffs. That is precisely why the plaintiffs brought a suit no matter
beyond the period of limitation prescribed for the purpose. Such a suit was
neither unnecessary nor a futility for the plaintiff's right to remain in
possession depended upon whether the lease was subsisting or stood
terminated. It is not, therefore, possible to fall back upon the possessory
rights claimed by plaintiffs over the leased area to bring the suit within
time especially when we have, while dealing with the question of
possession, held that possession also was taken over pursuant to the order
of termination of the lease in question.
27. In the light of what we have said above, we consider it
unnecessary to examine the question whether the suit in question was barred
by Section 120 of the Major Ports Act which stipulates a much shorter
period of limitation of six months. We also consider it unnecessary to
examine whether the suit filed by the original plaintiff-transferee of the
lessee was barred by the principle of constructive res judicata or Order
II, Rule 2 of the Code of Civil Procedure, 1908 in view of the fact that
the first suit filed by the lessee in the year 1980 for permanent
prohibitory injunction could and ought to have raised the question of
validity of the termination of the lease as the termination of the lease
had by that time taken place. So also the question whether the transferee,
who had not been recognised by the Port Trust, could institute a suit
against the Port Trust so as to challenge the termination of the lease in
favour of his vendor also need not be examined. All that we need mention is
that the addition of the lessee as a co-plaintiff in the suit also came as
late as in the year 1999 when the original plaintiff transferee of the
lease appears to have realised that it is difficult to assert his rights
against the Port Trust on the basis of a transfer which was effected
without the permission of the lessor-Port Trust.
28. In the result, we allow this appeal, set aside the impugned
judgment and decree passed by the Courts below and dismiss the suit filed
by the respondents but in the circumstances without any order as to costs.
.......................................J.
(T.S. Thakur)
........................................J.
(Gyan Sudha Misra)
New Delhi
January 9, 2013
ITEM NO. 1A Court No.10 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No..... of 2013 @ SLP(C) No. 9196 of 2008
BOARD OF TRUSTEES OF PORT OF KANDLA Appellant (s)
VERSUS
HARGOVIND JASRAJ AND ANR. Respondent (s)
Date : 09/01/2013 This Petition was called on for judgment today.
For Appellant (s) M/s. Parekh and Co.
For Respondent(s) Mr. Ejaz Maqbool, Adv.
Ms. Aishwarya Bhati, Adv.
Hon'ble Mr. Justice T.S.Thakur pronounced Judgment of the
Bench comprising His Lordship and Hon'ble Mrs. Justice Gyan Sudha
Misra.
Leave granted.
The appeal is allowed in terms of the signed
judgment. There shall be no order as to costs.
(Shashi Sareen) (Veena Khera)
Court Master Court Master
Signed Reportable judgment is placed on the file.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 153 OF 2013
(Arising out of S.L.P. (C) No.9196 of 2008)
Board of Trustees of Port of Kandla ...Appellant
Versus
Hargovind Jasraj & Anr. ...Respondents
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This appeal arises out of a judgment and order dated 26th
December, 2007 passed by the High Court of Gujarat at Ahmedabad whereby
Civil Second Appeal No.17 of 2007 filed by the appellant has been dismissed
and the judgment and decree passed by the Courts below affirmed. The facts
giving rise to the filing of this appeal may be summarised as under:
3. A parcel of land admeasuring 1891.64 square meters situated in
Sector 30, Gandhidham in the State of Gujarat was granted in favour of Smt.
Pushpa Pramod Shah-respondent No.2 in this appeal on a long-term lease
basis. A formal lease-deed was also executed and registered in favour of
the lessee stipulating the terms and conditions on which the lessee was to
hold the land demised in her favour. The respondent-lessee it appears
committed default in the payment of the lease rent stipulated in the lease-
deed with the result that the appellant-lessor issued notices dated 12th
December, 1975 and 17th July, 1976 calling upon the lessee to pay the
outstanding amount with interest and stating that the lease of the plot in
question shall stand determined under Clause 4 thereof and possession of
the demised premises taken over by the appellant-Port Trust in case the
needful is not done.
4. In response to the notices aforementioned the lessee by
communication dated 18th November, 1976 requested the appellant-Port Trust
to permit her to resell the plots for a symbolic consideration and to
obtain the refund of the instalment amount already paid to the Port Trust.
The letter sought to justify the default in the payment of arrears on the
ground of an untimely demise of her husband, resulting in cancellation of
expansion programme including any further acquisition of land by the
lessee.
5. Failure of the lessee to remit the outstanding instalment amount
culminated in the termination of the lease by the appellant-Port Trust in
terms of an order dated 8th August, 1977 w.e.f. 13th December, 1978. A
panchnama prepared on 14th December, 1978 evidenced the takeover of
possession of the plot in question by the appellant-Port Trust, copy
whereof was forwarded even to the lessee along with a certificate that the
possession had been taken over by the Assistant Estate Manager of the
appellant-Port Trust under his letter dated 20th December, 1978.
6. On receipt of the letter aforementioned the lessee by her letter
dated 22nd February, 1979 requested the appellant-Port Trust to refund the
amount and in case a refund could not be made, to return the possession of
the plot to her. One year and four months after the issue of the said
letter the lessee-respondent No.2 herein filed Civil Suit No.152 of 1980 in
the Court of Civil Judge, Gandhidham, in which she prayed for a decree for
permanent injunction restraining the defendants, its officers and servants
from interfering with her peaceful possession over the plot in question.
The immediate provocation for the filing of the said suit was provided by
the appellant-Port Trust proposing to re-auction the plot in question. The
plaintiff's case in the suit was that she was in actual physical possession
of the plot which rendered the proposed auction thereof unreasonable. An
interim application was also filed in the said suit in which the Court
granted an ex-parte order of injunction that was subsequently vacated by a
detailed order passed on 5th September, 1980 holding that the plaintiff was
not entitled to the relief of injunction. It is common ground that suit
No.152 of 1980 was eventually dismissed on 18th January, 1985 for non-
prosecution.
7. Almost six years after the dismissal of the first suit, another
Suit No.126 of 1991 was filed, this time by respondent No.1-Hargovind
Jasraj against respondent No.2-Smt. Pushpa Pramod Shah for a permanent
prohibitory injunction restraining defendant No.2-lessee of the plot, her
agents, servants and representatives from interfering with the plaintiff's
possession over the plot in dispute. According to averments made in the
said suit the lessee had not been carrying on any business activities in
Gandhidham nor was she using the plot in question and that she was finding
it difficult to look after and administer the plot after the death of her
husband. She had, therefore, sold the plot to the plaintiff-respondent No.1
in this appeal in terms of a registered document. It was further alleged
that the cause of action to file the suit accrued a few days before the
filing of the suit when defendant-lessee had through her representative
asked the plaintiff to vacate the suit plot which demand was in breach of
the sale agreement between the parties. Apprehending dispossession from the
plot in question plaintiff-respondent No.1 sought a decree for injunction
against respondent No.2. The appellant-Port Trust, it is noteworthy, was
not impleaded as a party to the suit which too was dismissed for non-
prosecution on 15th March, 2002.
8. Five years later and pending disposal of the second suit mentioned
above, a third suit being Suit No.77 of 1996 was filed by respondent No.1
this time asking for a declaration and permanent injunction in which the
plaintiff for the first time questioned the termination of the lease by the
appellant-Port Trust. A declaration that the said lease was still
subsisting with an injunction restraining the defendant-appellant in this
appeal and its employees from acting in any manner injurious to the title
and the possession of the plaintiff over the disputed land was prayed for.
Plaintiff's case in this suit was that he had purchased the plot in
question from Smt. Pushpa Pramod Shah in the year 1991 in terms of a
transfer deed registered with the concerned Sub-Registrar at Gandhidham and
that he had based on the said transfer asked for transfer of the lease
rights which request had been declined by the appellant-Port Trust in the
year 1994. It was further alleged that he had come to know about the
purported cancellation of the lease in favour of Smt. Pushpa Pramod Shah
and the purported takeover of the possession of the plot from her which was
according to him both fraudulent and invalid in the eyes of law.
9. The suit was contested by the appellant-Port Trust on several
grounds giving rise to as many as seven issues framed by the trial Court
for determination. The suit was eventually decreed by the said Court,
aggrieved whereof the appellant-Port Trust filed an appeal before the First
Appellate Court who partly allowed the said appeal by its judgment and
order dated 16th November, 2006. The Appellate Court affirmed the decree
passed by the Courts below in so far as the trial Court had declared that
the lease-deed in question had not been validly terminated by the lessor
and the same continued to be subsisting but allowed the appeal setting
aside that part of the judgment passed by the trial Court whereby the trial
Court had directed the appellant-Port Trust to transfer the lease rights in
favour of the plaintiff-respondent No.1 in this appeal.
10. The appellant-Port Trust appealed to the High Court against the
above judgment and decree which has been dismissed by the High Court in
terms of the order impugned before us holding that no substantial question
of law arose in the light of the concurrent findings of fact recorded by
the courts below. The High Court found that since the earlier suits had not
been decided on merits, no final adjudication had taken place in the same
so as to attract the doctrine of res judicata to the issues raised in the
third suit out of which the present proceedings arise.
11. Appearing for the appellant Mr. Pravin H. Parekh, learned senior
counsel, strenuously argued that the courts below had fallen in serious
error in holding that the termination of the lease by the appellant-Port
Trust was invalid or that the lease continued to be valid and subsisting.
The question whether the Senior Estate Manager was competent to terminate
the lease and enter upon the suit property was not, argued Mr. Parekh,
joined as an issue by the courts below and could not be made a basis for
holding the termination to be unauthorised or invalid. Alternatively, he
submitted that the termination order had been passed as early as in the
year 1977 whereas the suit in question was filed in the year 1996 after a
lapse of nearly 18 years. The possession of the plot was also taken over on
14th December, 1978 which fact was acknowledged unequivocally by the lessee
in her letter dated 22nd February, 1979. That being so, any suit aimed at
challenging the validity of the termination or assailing validity of the
process by which the possession was taken over from the lessee should have
been filed within a period of six months from the date the cause of action
accrued to the lessee in terms of Section 120 of the Major Port Trust Act.
At any rate, such a suit could be filed, at best within three years from
the date the cause of action accrued to the lessee. Neither the lessee nor
her transferee who came on the scene long after the termination order had
been passed and the possession taken over could question the validity of
the termination of the lease or demand protection of their possession in
the light of a clear and unequivocal admission made by the lessee in her
letter dated 22nd February, 1979 that the possession of the plot in
question stood taken over from her. The courts below have, in that view,
committed a mistake in holding that the suit was within time.
12. Mr. Ahmadi, counsel appearing for the respondent, on the other
hand, submitted that the courts below had recorded a concurrent finding of
fact that the lessee continued to be in possession of the suit property
even after the termination of the lease which finding of fact could not be
assailed nor was there any legal impediment for the plaintiff transferee or
the original lessee who too was joined as a plaintiff in the year 1999 to
seek protection of their possession. It was further argued by Mr. Ahmadi
that the admission made by the lessee in her letter dated 22nd February,
1979 was not unequivocal and stood explained by the attendant circumstances
including the demise of her husband and resultant inability of the lessee
to go ahead with the expansion programme or to pay remainder of the lease
amount.
13. The Trial Court has, while dealing with the question of
dispossession of the lessee from the disputed plot, recorded a rather
ambivalent finding. This is evident from the following observations made by
it in its judgment:
".....Further Panchnama submitted alongwith Ex.49 cannot be said to be
panchnama of taking physical possession of the plot because the plot is
open. Even at present it is open and there are bushes of the Babool Trees
and as such it is difficult to hold anything about possession that of
Pushpaben or K.P.T. IT cannot be believed that by mere preparing panchnama
the possession has been taken from the person who is in possession of the
plot. The K.P.T. has not taken the possession vide Ex. 49 in the presence
of Pushpaben. Under the said circumstances the plot is open and it is as
it is......."
(emphasis supplied)
14. It is manifest that there is no clear finding of fact regarding
possession of the suit property having continued with the lessee, no matter
the lease stood terminated and a panchnama evidencing takeover of the
possession drawn and even communicated to her. The first Appellate Court in
appeal filed against the above judgment and decree also did not record a
specific finding that the possession of the plot had not been taken over by
the Port Trust no matter the documents relied upon by it evidenced such
take over. The first Appellate Court instead held that the termination of
the lease was not valid inasmuch as no notice regarding termination in
terms of Sections 106 and 111(g) of the Transfer of Property Act, 1882 had
been proved and served upon the lessee nor was it proved that the person
who signed notice Exhibit 47 and who took over possession in terms of
panchnama enclosed with Exhibit 49 had been authorised by the Kandla Port
Trust, the lessor, to do so. The conclusions drawn by the first Appellate
Court were summarised in paragraph 59 of its judgment in the following
words:
"59. In view of what is stated in foregoing paras of this judgment this
Court come to the following conclusions: -
1. The appellant/original defendant has failed to prove the
service of notice terminating the lease as required under
Section 111(g) and 106 of the Transfer of Property Act upon
the lessee i.e. the Respondent No. 2/original plaintiff No.
2.
2. The defendant/the present appellant failed to prove that the
person who signed the notice Ex. 47 and the person who is
alleged to have made re-entry on the suit plot and signed
Ex.49 and panchnama produced along with Ex. 49 were
specifically authorised by Kandla Port Trust i.e. the lessor
and the Chairman of Kandla Port Trust.
3. The lease dated 14/12/1966 is not legally and validly
determined by the lessor hence, it is subsisting till date
and alive, and the lessee Smt. Pushapaben Shah i.e. the
respondent No. 2 is entitled to hold and enjoy the suit plot
No. 30 sector No. 8."
15. In the second appeal filed by the appellant, the High Court was of
the view that the matter was concluded by concurrent findings of fact
regarding the validity of the termination of the lease and the authority of
those who purported to have brought about such a termination. The
question whether the possession of the suit plot was taken over did not
engage the attention of the first Appellate Court or the High Court
although the latter proceeded on the basis that the findings of fact
recorded by the Courts below were concurrent, without pointing out as to
what those findings were and how the same put the issue regarding takeover
of the possession from the lessee beyond the pale of any challenge.
Suffice it to say that the respondents are not correct in urging that the
dispossession of the lessee pursuant to the termination of the lease was
not proved as a fact. None of the Courts below has recorded a clear finding
on this aspect even though the trial Court has in its judgment briefly
touched that issue but declined to record an affirmative finding in the
matter. That apart a careful reading of the passage extracted above from
the order passed by the trial Court shows that the trial Court was
labouring under the impression as though possession of the vacant piece of
land cannot be taken over by the lessor unless some overt act of actual
occupation of the plot is established. The fact that wild bushes were
growing on the plot was, in our opinion, no reason to hold that the
panchnama prepared by the Port Trust authorities evidencing the takeover of
the plot was inconsequential or insufficient to establish that the process
of dispossession of the lessee had been accomplished. We need to remember
that with the termination of the lease, the title to the suit property
vested in the lessor, ipso jure. That being so, possession of a vacant
property would follow title and also vest in the lessor. Even so, the
Panchnama drawn up at site recorded the factum of actual takeover of the
possession from the lessee, whereafter the possession too legally vested in
the lessor, growth of wild bushes and grass notwithstanding. We need not
delve any further on this aspect for we are of the view that there could
be no better evidence to prove that the lessee had been dispossessed from
the plot in question than her own admission contained in her communication
dated 22nd February, 1979 addressed to the Senior Estate Manager of the
appellant-Trust. The letter may at this stage be extracted in extenso:
"Dear Sir,
I am in receipt of your letter No. ES/LL/723/63/9180 dated 20th
December 1978 informing that the Assistant Estate Manager has taken over
the plot No. 30 Sector 8. Please note, you have not informed me to be
present on 4 PM on 14.12.1978 at the site of the aforesaid plot and your
letter No. ES/LL/723/63/6248 dated 8th August 1977 said to have been sent
to me has not yet been received and hence you do not have the authority to
re-enter the plot.
As you have taken the possession of the plot, you are now requested to
kindly refund all the amounts forthwith otherwise you may return back the
possession of plot to me. If I do not hear anything from you within seven
days from the date of receipt of this letter, appropriate legal proceedings
will be adopted against you, holding you entirely responsible for the cost
of consequences thereof.
Yours faithfully,
Sd/- P.P. Shah
(Smt. Pushpa P. Shah)"
(emphasis supplied)
16. The genuineness of the above document was not disputed by learned
counsel for the respondents. All that was argued was that the admission
regarding the dispossession of the lessee had been made in circumstances
that (a) cannot constitute an admission and (b) absolve the lessee, the
maker, of its binding effect. The husband of the lessee having passed away,
the letter in question was written in a state of shock and distress and any
admission made therein could not argued Mr. Ahmadi and Ms. Bhati be treated
as an admission in the true sense. We regret our inability to accept that
submission. The question is whether possession had indeed been taken over
from the lessee pursuant to the termination of the lease. The answer to
that question is squarely provided by the letter in which the lessee makes
an unequivocal and unconditional admission that possession had indeed been
taken over by the appellant-Port Trust. What is significant is that the
lessee had asked for refund of the amount paid by her towards instalments
and in case such a refund was not possible to return the plot to her. We do
not think that such an unequivocal admission as is contained in the letter
can be wished away or ignored in a suit where the question is whether the
lessee had indeed been dispossessed pursuant to the termination of the
lease. There is no worthwhile explanation or any other reason that can
possibly spell a withdrawal of the admission or constitute an explanation
cogent enough to carry conviction with the Court. We have in that view no
hesitation in holding that dispossession of the lessee had taken place
pursuant to the termination of the lease deed in terms of panchnama dated
14th December, 1978.
17. The next question then is whether the suit for declaration to the
effect that the termination of the lease was invalid and that the lease
continued to subsist could be filed more than 17 years after the
termination had taken place. A suit for declaration not covered by Article
57 of the Schedule to the Limitation Act, 1963 must be filed within 3 years
from the date when the right to sue first arises. Article 58 applicable to
such suits reads as under:
| |Description of suit |Period of |Time from which |
| | |Limitation |period begins to run |
|58. |To obtain any other |Three years |When the right to sue|
| |declaration. | |first accrues. |
18. The expression right to sue has not been defined. But the same
has on numerous occasions fallen for interpretation before the Courts. In
State of Punjab & Ors. V. Gurdev Singh (1991) 4 SCC 1, the expression was
explained as under :
"..........
The words "right to sue" ordinarily mean the right to seek relief by means
of legal proceedings. Generally, the right to sue accrues only when the
cause of action arises, that is, the right to prosecute to obtain relief by
legal means. The suit must be instituted when the right asserted in the
suit is infringed or when there is a clear and unequivocal threat to
infringe that right by the defendant against whom the suit is instituted."
19. Similarly in Daya Singh & Anr. V. Gurdev Singh (dead) by LRs. &
Ors. (2010) 2 SCC 194 the position was re-stated as follows:
"13. Let us, therefore, consider whether the suit was barred by limitation
in view of Article 58 of the Act in the background of the facts stated in
the plaint itself. Part III of the Schedule which has prescribed the period
of limitation relates to suits concerning declarations. Article 58 of the
Act clearly says that to obtain any other declaration, the limitation would
be three years from the date when the right to sue first accrues.
14. In support of the contention that the suit was filed within the period
of limitation, the learned Senior Counsel appearing for the appellant-
plaintiffs before us submitted that there could be no right to sue until
there is an accrual of the right asserted in the suit and its infringement
or at least a clear and unequivocal threat to infringe that right by the
defendant against whom the suit is instituted. In support of this
contention the learned Senior Counsel strongly relied on a decision of the
Privy Council in reported in AIR 1930 PC 270 Bolo v. Koklan. In this
decision Their Lordships of the Privy Council observed as follows:
'... There can be no 'right to sue' until there is an accrual of the right
asserted in the suit and its infringement, or at least a clear and
unequivocal threat to infringe that right, by the defendant against whom
the suit is instituted.'
15. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa AIR
1961 SC 808 in which this Court observed: (AIR p.810, para 7)
' ... The period of six years prescribed by Article 120 has to be computed
from the date when the right to sue accrues and there could be no right to
sue until there is an accrual of the right asserted in the suit and its
infringement or at least a clear and unequivocal threat to infringe that
right.'
In C. Mohammad Yunus, this Court held that the cause of action for the
purposes of Article 58 of the Act accrues only when the right asserted in
the suit is infringed or there is at least a clear and unequivocal threat
to infringe that right. Therefore, the mere existence of an adverse entry
in the revenue records cannot give rise to cause of action.
..........Accordingly, we are of the view that the right to sue accrued
when a clear and unequivocal threat to infringe that right by the
defendants......."
20. References may be made to the decisions of this Court in Khatri
Hotels Pvt. Ltd. & Anr. V. Union of India & Anr. (2011) 9 SCC 126 where
this Court observed:
"While enacting Article 58 of the 1963 Act, the legislature has designedly
made a departure from the language of Article 120 of the 1908 Act. The word
"first" has been used between the words "sue" and "accrued". This would
mean that if a suit is based on multiple causes of action, the period of
limitation will begin to run from the date when the right to sue first
accrues. To put it differently, successive violation of the right will not
give rise to fresh cause and the suit will be liable to be dismissed if it
is beyond the period of limitation counted from the day when the right to
sue first accrued."
(emphasis
supplied)
21. The right to sue in the present case first accrued to the lessee
on 13th December, 1978 when in terms of order dated 8th August, 1977 the
lease in favour of the lessee was terminated. A suit for declaration that
the termination of the lease was invalid hence ineffective for any reason
including the reason that the person on whose orders the same was
terminated had no authority to do so, could have been instituted by the
lessee on 14th of December 1978. For any such suit it was not necessary
that the lessee was dispossessed from the leased property as dispossession
was different from termination of the lease. But even assuming that the
right to sue did not fully accrue till the date the lessee was dispossessed
of the plot in question, such a dispossession having taken place on 14th of
December, 1978, the lessee ought to have filed the suit within three years
of 15th December, 1978 so as to be within the time stipulated under Article
58 extracted above. The suit in the instant case was, however, instituted
in the year 1996 i.e. after nearly eighteen years later and was, therefore,
clearly barred by limitation. The Courts below fell in error in holding
that the suit was within time and decreeing the same in whole or in part.
22. Mr. Ahmadi next argued that the termination of the lease being
illegal and non est in law, the plaintiff-respondents could ignore the
same, and so long as they or any one of them remained in possession, a
decree for injunction restraining the Port Trust from interfering with
their possession could be passed by the Court competent to do so. We are
not impressed by that submission. The termination of the lease deed was by
an order which the plaintiffs ought to get rid of by having the same set
aside, or declared invalid for whatever reasons, it may be permissible to
do so. No order bears a label of its being valid or invalid on its
forehead. Any one affected by any such order ought to seek redress against
the same within the period permissible for doing so. We may in this regard
refer to the following oft quoted passage in Smith v. East Elloe Rural
District Council (1956) 1 All ER 855. The following are the observations
regarding the necessity of recourse to the Court for getting the invalidity
of an order established:
"An order, even if not made in good faith is still an act capable of legal
consequences. It bears no brand of invalidity on its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity
and to get it quashed or otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable of orders.
This must be equally true even where the brand of invalidity is plainly
visible : for there also the order can effectively be resisted in law only
by obtaining the decision of the court. The necessity of recourse to the
court has been pointed put repeatedly in the House of Lords and Privy
Council without distinction between patent and latent defects."
23. The above case was approved by this Court in Krishnadevi Malchand
Kamathia & Ors. v. Bombay Environmental Action Group and Ors. (2011) 3 SCC
363, where this Court observed:
"19. Thus, from the above it emerges that even if the order/notification
is void/voidable, the party aggrieved by the same cannot decide that the
said order/notification is not binding upon it. It has to approach the
court for seeking such declaration. The order may be hypothetically a
nullity and even if its invalidity is challenged before the court in a
given circumstance, the court may refuse to quash the same on various
grounds including the standing of the Petitioner or on the ground of delay
or on the doctrine of waiver or any other legal reason. The order may
be void for one purpose or for one person, it may not be so for another
purpose or another person."
24. To the same effect is the decision of this Court in Pune
Municipal Corporation v. State of Maharashtra and Ors (2007) 5 SCC 211,
where this Court discussed the need for determination of invalidity of an
order for public purposes:
"36. It is well settled that no order can be ignored altogether unless a
finding is recorded that it was illegal, void or not in consonance with
law. As Prof. Wade states: "The principle must be equally true even where
the 'brand of invalidity' is plainly visible: for there also the order can
effectively be resisted in law only by obtaining the decision of the
Court".
He further states:
"The truth of the matter is that the court will invalidate an order only if
the right remedy is sought by the right person in the right proceedings and
circumstances. The order may be hypothetically a nullity, but the Court may
refuse to quash it because of the plaintiff's lack of standing, because he
does not deserve a discretionary remedy, because he has waived his rights,
or for some other legal reason. In any such case the 'void' order remains
effective and is, in reality, valid. It follows that an order may
be void for one purpose and valid for another, and that it may
be void against one person but valid against another."
xx xx xx xx
38. A similar question came up for consideration before this Court in State
of Punjab and Ors. v. Gurdev Singh (1992) ILLJ 283 SC ...
39. Setting aside the decree passed by all the Courts and referring to
several cases, this Court held that if the party aggrieved by invalidity of
the order intends to approach the Court for declaration that the order
against him was inoperative, he must come before the Court within the
period prescribed by limitation. "If the statutory time of limitation
expires, the Court cannot give the declaration sought for"."
25. Reference may also be made to the decisions of this Court in R.
Thiruvirkolam v. Presiding Officer and Anr. (1997) 1 SCC 9, State of Kerala
v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and Ors.
(1996) 1 SCC 435 and Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber
Industries Pvt. Ltd. etc. (1997) 3 SCC 443, where this Court has held that
an order will remain effective and lead to legal consequences unless the
same is declared to be invalid by a competent court.
26. It is true that in some of the above cases, this Court was dealing
with proceedings arising under Article 226 of the Constitution, exercise of
powers whereunder is discretionary but then grant of declaratory relief
under the Specific Relief Act is also discretionary in nature. A Civil
Court can and may in appropriate cases refuse a declaratory decree for good
and valid reasons which dissuade the Court from exercising its
discretionary jurisdiction. Merely because the suit is within time is no
reason for the Court to grant a declaration. Suffice it to say that filing
of a suit for declaration was in the circumstances essential for the
plaintiffs. That is precisely why the plaintiffs brought a suit no matter
beyond the period of limitation prescribed for the purpose. Such a suit was
neither unnecessary nor a futility for the plaintiff's right to remain in
possession depended upon whether the lease was subsisting or stood
terminated. It is not, therefore, possible to fall back upon the possessory
rights claimed by plaintiffs over the leased area to bring the suit within
time especially when we have, while dealing with the question of
possession, held that possession also was taken over pursuant to the order
of termination of the lease in question.
27. In the light of what we have said above, we consider it
unnecessary to examine the question whether the suit in question was barred
by Section 120 of the Major Ports Act which stipulates a much shorter
period of limitation of six months. We also consider it unnecessary to
examine whether the suit filed by the original plaintiff-transferee of the
lessee was barred by the principle of constructive res judicata or Order
II, Rule 2 of the Code of Civil Procedure, 1908 in view of the fact that
the first suit filed by the lessee in the year 1980 for permanent
prohibitory injunction could and ought to have raised the question of
validity of the termination of the lease as the termination of the lease
had by that time taken place. So also the question whether the transferee,
who had not been recognised by the Port Trust, could institute a suit
against the Port Trust so as to challenge the termination of the lease in
favour of his vendor also need not be examined. All that we need mention is
that the addition of the lessee as a co-plaintiff in the suit also came as
late as in the year 1999 when the original plaintiff transferee of the
lease appears to have realised that it is difficult to assert his rights
against the Port Trust on the basis of a transfer which was effected
without the permission of the lessor-Port Trust.
28. In the result, we allow this appeal, set aside the impugned
judgment and decree passed by the Courts below and dismiss the suit filed
by the respondents but in the circumstances without any order as to costs.
.......................................J.
(T.S. Thakur)
........................................J.
(Gyan Sudha Misra)
New Delhi
January 9, 2013
