Life Insurance Corporation of India vs Nandini J. Shah & Ors.

HELD: 1.1 Sub-section (1) of Section 9 of Public Premises (Eviction of Unatuhorised Occupants) Act, 1971 postulates that an appeal shall lie from every order of the estate Officer, passed under the Act, to an Appellate Officer. As to who shall be the Appellate Officer, has also been specified in the same provision. It predicates the District Judge of the district in which the public premises are situated or such other judicial officer in that district of not less than 10 years standing as the District Judge to be designated for that purpose. The first part of the provision does suggest that the appeal shall lie to an Appellate Officer, however, it does not follow therefrom that the Appellate Officer is persona designata. Something more is required to hold so. Had it been a case of designating a person by name as an Appellate Officer, the concomitant would be entirely different. However, when the Appellate Officer is either the District Judge of the district or any another judicial officer in that district possessing necessary qualification who could be designated by the District Judge, the question of such investiture of power of an appellate authority in the District Judge or Designated Judge would by no standards acquire the colour or for that matter trappings of persona designata. [Para 30] [317-A-D]

1.2 The power to be exercised by the Appellate Officer in terms of Section 9 is a judicial power of the State which is quite distinct from the executive power of the State. The District Judge or designated judicial officer exercises judicial authority within his jurisdiction. As the Act predicates the Appellate Officer is to be a District Judge or judicial officer, it is indicative of the fact of a pre existing authority exercising judicial power of the State. District Judge is the creature of Section 5 of the Maharashtra Civil Courts Act, 1869, who presides over a District Court invariably consisting of more than one Judge in the concerned district. [Para 30] [317-D-F]

1.3 On the similar lines, the Bombay City Civil Court has been constituted under Section 3 of the Bombay City Civil Court Act, 1948, with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay except a suit or proceedings which are cognizable by the High Court referred to therein and by Small Causes Court. [Para 30] [318-B-C]

1.4 The District Judge or Principal Judge exercises judicial power of the State and is an authority having its own hierarchy of superior and inferior Courts, the law of procedure according to which it would dispose of matters coming before it depending on its nature and jurisdiction exercised by it, acting in judicial manner. The District Judge or Principal Judge of the City Civil Court is the officer presiding over the Court and derives his description from the nomenclature of the Court. Even if the District Judge/Principal Judge of the City Civil Court might retire or get transferred, his successor-in-office can pick up the thread of the proceedings under Section 9 of the 1971 Act from the stage where it was left by his predecessor and can function as an appellate authority. The District Judge/Principal Judge of the City Civil Court and other judicial officers of these Courts possessing necessary qualifications constitute a class and cannot be considered as persona designata. The Appellate Officer, therefore, has to function as a Court and his decision is final in terms of Section 10 of 1971 Act. [Para 30] [318-D-G]

1.5 The legislative intent behind providing an appeal under Section 9 before the Appellate Officer to be the District Judge of the concerned District Court in which the public premises are situated or such other judicial officer in that district possessing necessary qualification to be designated by the District Judge for that purpose, is indicative of the fact that the power to be exercised by the Appellate Officer is not in his capacity as persona designata but as a judicial officer of the pre existing Court. The historical background of the 1971 Act would make no difference to the aforementioned analysis. [Para 30] [318-G-H; 319-A]

1.6 The expression used in Section 9 is “Appellate Officer” and not “Appellate Authority” however, would neither make any difference nor undermine the status of the District Judge or the designated judicial officer so as to reckon their appointment as persona designata. The thrust of Section 9(1) is to provide for remedy of an appeal against the order of the Estate Officer before the District Judge who, undeniably, is a pre-existing authority and head of the judiciary within the district, discharging judicial power of the State including power to condone the delay in filing of the appeal and to grant interim relief during the pendency of the appeal. Though described as an Appellate Officer, the District Judge, for deciding an appeal under Section 9, can and is expected to exercise the powers of the civil court. [Para 31] [319-B-D]

1.7 The expression “appellate officer” has not been defined in the 1971 Act, unlike the definition of “estate officer” contained in Section 2(1)(b) of that Act. The appellate officer cannot be considered as a statutory authority, as defined in the dictionary clause in Section 2(1)(fa) of the 1971 Act. Even in respect of the appeal under Section 9 of the 1971 Act, the Principal Judge of the City Civil Court or District Judge is competent to hear the appeal himself or designate some other judicial officer within his jurisdiction possessing requisite qualification. It is implicit in Section 9 read with the provisions of the Acts constituting the District Judiciary that the head of the district judiciary is the District Judge or Principal Judge of the City Civil Court and Section 9 of the 1971 Act makes it explicit, by investing authority in the District Judge or Principal Judge of the City Civil Court, to designate any other judicial officer within his jurisdiction possessing essential qualifications, to hear such appeals. This is a clear departure from the appointment of a District Judge as a persona designata. The Additional District Judge or judicial officer possessing essential qualification, therefore, is not an inferior appellate officer within the meaning of Section 9 of the 1971 Act. There is enough indication in Section 9 of the 1971 Act to spell out the legislative intent that the remedy of appeal before the appellate officer is not before a persona designata but a preexisting judicial authority in the district concerned. [Para 39] [323B-F]

1.8 The fact that there is no express indication in the 1971 Act about the procedure to be adopted or followed by the appellate officer, it would not follow therefrom that the District Judge or designated judicial officer who hears the appeals under Section 9, does so not as a Court but as a persona designata. In that case, the procedure for hearing of the appeals will be governed by the provisions under the 1971 Act and Rules framed thereunder and including the enactment under which the judicial authority has been created, such as Maharashtra Civil Courts Act and City Civil Courts Act. Such a pre-existing judicial authority, by implication, would be bound to follow the procedure underlying the said enactments and also observe the doctrine of fairness in affording opportunity. [Para 41] [324-C-F]

1.9 Thus, the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge). Being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction. [Para 49] [328-C-D]

Thakur Das (Dead) by LRs v. State of M.P. & Anr. (1978)

1 SCC 27 : [1978] 1 SCR 732; Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (1995) 5 SCC 5 : [1995] 2 Suppl. SCR 1; Central Talkies Ltd. v. Dwarka Prasad [1961] 3 SCR 495; Maharashtra State Financial Corporation v. Jaycee Drugs & Pharmaceuticals (P) Ltd. (1991) 2 SCC 637 : [1991] 1 SCR 480; Asnew Drums (P) Ltd. v. Maharashtra State Finance

Corporation (1971) 3 SCC 602 : [1972] 1 SCR 351; Ram Chander Aggarwal & Anr. v. State of Uttar Pradesh & Anr. [1966] Supp. SCR 393; Balakrishna Udayar v. Vasudeva Aiyar 44 IA 261;Shyam Sunder Agarwal and Co. v. Union of India (1996) 2 SCC 132 – relied on. Jinda Ram v. UOI (1999) 2 MP LJ 221; M. Papa Naik v. Commissioner City Municipal Council (1996) 3 Kant LJ 86 – approved.

Nusli Neville Wadia v. New India Assurance Co. Ltd. 2010 (2) Mh. L.J. 978; N.P. Berry v. Delhi Transport Corporation 15 (1979) DLT 108; State of Mysore v. P. Shankaranarayana Rao (1975) 2 Kar. LJ 280;Ganga Ram Dohrey v. State of U.P. AIR 2002 Allahabad 238; M/s. Pitman’s Shorthand Academy v. M/s. B. Lila Ram & Sons AIR (37) 1950 East Punjab 181 – not approved. Thakur Jugal Kishore Sinha v. Sitamarhi Central Co-op Bank Ltd. [1967] 3 SCR 163; Brajnandan Sinha v. Jyoti Narain [1955] 2 SCR 955; Virender Kumar Satyawadi v. State of Punjab [1955] 2 SCR 1013; Prakash Securities Pvt. Ltd. v. Life Insurance Corpn. of India & Anr. 2012 (4) Bom. C.R.1.; Sizerali Mohamedali Lodhia v. Gujarat State Road Transport Corp. 2001 (2) Guj. L.R. 1120; M. Abdul Wahid Sahib v. Dewanjee Abdul Khader Sahib AIR 1947 Madras 400; C.S. Balarama Iyer & Anr. v. Krishnan Kunchandi AIR 1968 Kerala 240; Y. Mahabaleswarappa v.

M. Gopalasami Mudaliar AIR 1935 Madras 673;

Keshav Ramchandra v. Municipal Borough, Jalgaon & Ors. AIR 1946 Bombay 64; Jagmohan Surajmal

Marwadi v. Venkatesh Gopal Ranade AIR 1933

Bombay 105; Municipality of Sholapur v. Tuljaram Krishnasa Chavan AIR 1931 Bombay 582; Thavasikani Nadar v. The Election Commissioner (1974) II Madras LJR 44; Bathula Krishna Brahman & Ors. v. Daram Chenchi Reddy & Ors. AIR 1959 AP 129; Surindra Mohan v. Dharam Chand Abrol AIR 1971 J & K 76; Kiron Chandra Bose v. Kalidas Chatterji AIR 1943 Calcutta 247; P. Venkata Somaraji & Ors. v. Principal Munsif & Ors. AIR 1968 AP 22; S. Srinivas Rao v. High Court of A. P. AIR 1989 AP 258; Collector, Varanasi v. Gauri Shanker Misra & Ors. AIR 1968 SC 384; Hanskumar Kishanchand v. Union of India AIR 1958 SC 947; Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC; Gangadhar Bapurao Gadre v. Hubli Municipality 1925 B.L.R. 519; Abid Ali v. District Judge, Baharaich (1987 Allahabad Law Journal 179); Parthasaradhi Naidu v. Koteswara Rao ILR (1924) 47 Mad 369 – referred to.

2.1 An order passed by a Civil Court is amenable to scrutiny of the High Court only in exercise of jurisdiction under Article

227 of the Constitution of India, which is different from Article

226 of the Constitution. No writ can be issued against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable. [Para 53] [332-H; 333-A]

2.2 In the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of the conclusion that the order passed by the District Judge as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. Moreover, on a close scrutiny of the decision of the Single Judge of the High Court, the true nature and substance of the order of the Single Judge was to exercise power under Article 227 of the Constitution of India; and there is no indication of Court having exercised powers under Article

226 of the Constitution of India as such. [Para 50] [328-D-G]

2.3 The Division Bench apart from relying on Nusli Neville Wadia case and Prakash Securities case, did not make any other analysis, to entertain the Letters Patent Appeal, as to in what manner the judgment of the Single Judge would come within the purview of exercise of powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the Letters Patent Appeal merely by referring to the earlier decisions. [Para 54] [333-B-C]

2.4 The Division Bench of the High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case. That was impermissible and of no avail, being without jurisdiction. That will leave the respondents with an adverse decision of the Single Judge dismissing their writ petition, whereby the eviction order passed by the Estate Officer and confirmed by the City Civil Court has been upheld. However, to subserve the ends of justice, the respondents are given libertyto challenge the decision of the learned Single Judge by way of appropriate remedy. [Paras 55, 56] [333-D-E, G]

Radhey Shyam & Another v. Chabbi Nath & Ors. (2015)

5 SCC 423 : [2015] 3 SCR 197; Ram Kishan Fauji v. State of Haryana (2017) 5 SCC 533; Jogendrasinghji Vijaysinghji v. State of Gujarat (2015) 9 SCC 1 : [2015]

6 SCR 504 – relied on.