whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designata? – whether the Letters Patent Appeal filed by the contesting respondents before the High Court of Judicature at Bombay against the decision of the learned Single Judge rendered in a writ petition (purportedly filed under Articles 226 and 227 of the Constitution of India), questioning the correctness and validity of the decision of the City Civil Court, Mumbai in Miscellaneous Civil Appeal No.121 of 2011 dated 03.04.2012, which was affirmed by the learned Single Judge, was maintainable.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 15536 OF 2017

(Arising out of SLP (Civil) No.11348 of 2013)

Life Insurance Corporation of India …..APPELLANT

:Versus:

Nandini J. Shah & Ors. …..RESPONDENTS

J U D G M E N T

A.M. Khanwilkar, J.

1. The seminal question posed in this appeal, by special leave, is

whether the order passed by the City Civil Court in exercise of

power under Section 9 of the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in

the capacity of a Civil Court or persona designata?

2. When this special leave petition was listed for admission on

12.09.2017, the Court passed the following order :

2

―Heard Mr. Ranjit Kumar, learned Solicitor General

appearing on behalf of the petitioner and Ms. Sonal,

learned counsel appearing on behalf of the respondents.

As the issue was to be debated with regard to the

maintainability of the Letters Patent Appeal, learned

Solicitor General has placed reliance on Radhey Shyam

& Anr. vs. Chhabi Nath & Ors., (2015) 5 SCC 423 and

Ram Kishan Fauji vs. State of Haryana & Ors., (2017) 5

SCC 533.

Ms. Sonal, learned counsel representing the

respondents, would contend that there is no quarrel

about the proposition that when a challenge is made to

the order passed by the Civil Court in a writ proceeding,

it has to be treated as a proceeding under Article 227 of

the Constitution of India and, therefore, no Letters Patent

Appeal would lie. But in a case under the Public Premises

(Eviction of Unauthorised Occupants) Act, 1971, the

Estate Officer cannot be considered as a Court and

further the appellate forum would decide the appeal

under Section 9 of the Act as the appellate officer and as

per the decision rendered by the Division Bench of the

Bombay High Court in Nusli Neville Wadia vs. New India

Assurance Co. Ltd., 2010 (2) Mh.L.J.978, which has

placed reliance on a judgment of the Delhi High Court in

N.P.Berry vs. Delhi Transport Corporation and Anr.

15(1979) DLT 108 (para 19), it is not a Civil Court and

therefore, the order passed by the said appellate forum

can be challenged under Sections 226 and 227 of the

Constitution of India and in that event, an intra-court

appeal would be maintainable.

List for further hearing on 21.09.2017.‖

The hearing on admission of the special leave petition continued on

21.09.2017 when the Court passed the following order :

―Leave granted.

Heard Mr.Ranjit Kumar, learned senior counsel for the

appellant and Ms.Sonal for the respondents.

In the course of hearing Mr.Ranjit Kumar, learned senior

counsel appearing for the appellant submitted that

3

Letters Patent Appeal at the instance of the respondents

before the High Court of Judicature at Bombay was not

maintainable.

Ms.Sonal, learned counsel appearing for the respondents

has, per contra, argued that the appeal was

maintainable. As we have heard the matter at length

with regard to maintainability of the Letters Patent

Appeal before the Division Bench of the High Court, it is

appropriate to render a judgment.

In view of the aforesaid, judgment is reserved.

Learned counsel for the parties shall submit written

submissions by 3rd October, 2017.‖

3. By this judgment, we shall answer the preliminary issue as to

whether the Letters Patent Appeal filed by the contesting

respondents before the High Court of Judicature at Bombay against

the decision of the learned Single Judge rendered in a writ petition

(purportedly filed under Articles 226 and 227 of the Constitution of

India), questioning the correctness and validity of the decision of

the City Civil Court, Mumbai in Miscellaneous Civil Appeal No.121

of 2011 dated 03.04.2012, which was affirmed by the learned Single

Judge, was maintainable.

4. We may now advert to the brief factual background giving rise

to this appeal: On or around 2nd May 2005, the appellant initiated

eviction Case No. 21 and 21A of 2015 against the respondents

before the Estate Officer under Sections 5 and 7 of the Public

4

Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short

“the Act”) for eviction of the respondents from the licenced premises

on 3rd floor, 49-55, Bombay Samachar Marg, Fort, Mumbai 400023

admeasuring about 258 sq. ft. including a balcony of 38 sq. ft.,

recovery of damages and recovery of arrears towards repairs and

maintenance charges amounting to Rs. 1364/-. The eviction was

sought on two grounds: (a) respondent No.1 had illegally and

unauthorisedly sublet, assigned or transferred the licenced

premises or part thereof to a partnership firm (respondent No.2)

and three companies (respondent Nos. 3 to 5); and (b) respondent

No. 1 was in arrears of repair and maintenance charges amounting

to Rs. 1364/-.

5. Respondent Nos.1 and 2 filed their Reply, stating inter alia

that respondent No.1‟s grandfather Shri P.T. Shah was the

original tenant of the premises since before 1937. At that time,

the building in which the premises are situated was owned by

the predecessor-in-title of the appellant. Respondent Nos.1

and 2 traced the devolution of rights in the premises and

pointed out that respondent No.2 was a partnership firm of the

daughter-in-law of the original tenant, her daughter (present

5

respondent No.1), Shri R.C. Vakharia and Shri K.C. Vakharia.

It was also pointed out that respondent No.3 was never

incorporated and it never came into existence. It was further

pointed out that respondent Nos.4 and 5 were private limited

companies wholly owned by the family members of the original

tenant, in which the 100% shareholding and all the directors

were the daughter-in-law of the original tenant and her

immediate family members viz., the daughter-in-law of the

original tenant, her daughter, her son-in-law and her

grandson. Sub-letting, assignment or transfer of the premises

or any part thereof to respondent Nos.2 to 5 was denied.

Respondent No.1 asserted that she was in occupation, control

and possession of the premises and regularly paid rent of Rs.

895/- per month to the appellant. It was also pointed out that

respondent No.1 was not in any arrears. The calculation of

damages was seriously disputed. Respondent Nos.3 to 5 did

not appear before the Estate Officer. Evidence was led before

the Estate Officer by the appellant and respondent Nos.1

and 2.

6

6. By its Order dated 5th February 2011, the Estate Officer

held that respondent No.1 was not in arrears of repairs and

maintenance charges as alleged by the appellant. However, it

held that respondent No.1 had unauthorisedly sub-let the

premises to respondent Nos.2 to 5. The Estate Officer also held

that the appellant was entitled to damages from the

respondents at the rate of Rs.48,142/- per month from 1st

December, 2004 till restoration of possession with simple

interest at the rate of 9% per annum.

7. Respondent Nos.1 and 2 challenged the aforesaid order of

the Estate Officer before the Appellate Officer under Section 9

of the Act, being the designate of the Principal Judge of the City

Civil Court at Mumbai. The appellant did not challenge the

finding of the Estate Officer insofar as he had held that

respondent No.1 was not in arrears of repairs and maintenance

charges. The said finding has become final.

8. By its order dated 3rd April, 2012, the Appellate Officer

held that (a) there was no subletting to the partnership firm

(respondent No.2), as it was established that it was the firm of

7

the original occupant and (b) there was nothing to show that

respondent Nos.3 to 5 also belonged to the original occupant as

no document was produced showing their constitution and

hence, it amounted to subletting. The Appellate Officer upheld

the order of eviction passed by the Estate Officer and the order

for damages along with interest.

9. Respondent Nos.1 and 2 challenged the aforesaid orders of

the Estate Officer and the Appellate Officer before the learned

Single Judge of the Bombay High Court by way of Writ Petition

No.4337 of 2012. Respondent Nos.1 and 2 prayed for issuance

of a Writ of Certiorari or a writ in the nature of certiorari or any

other appropriate writ, order or direction under Articles 226

and 227 of the Constitution of India and to set aside the

Judgment and Orders of the Appellate Officer and the Estate

Officer. The appellant did not challenge the finding of the

Appellate Officer insofar as it had held that there was no

subletting by respondent No.1 to the partnership firm

(respondent No.2). The said finding has become final.

8

10. By its order dated 14th August 2012, the learned Single

Judge of the Bombay High Court dismissed the aforesaid Writ

Petition filed by respondent Nos.1 and 2 by holding that

respondent Nos.3 to 5 are separate legal entities; the

authorities below had concurrently held that the appellant had

established its case in that behalf and that no material was

produced before it for taking a different view in the matter.

11. Respondent Nos.1 and 2 challenged the aforesaid order of

the learned Single Judge before the Division Bench of the

Bombay High Court vide Letters Patent Appeal No.181 of 2012.

12. The Division Bench of the Bombay High Court by its Order

dated 12th October, 2012, rejected the preliminary objection of

the appellant that the Letters Patent Appeal was not

maintainable against the order of the learned Single Judge and

also allowed the appeal on merits holding that documents

showing that 100% shareholding of respondent Nos.4 and 5

belonged to the occupant and her immediate family members

and that all the directors of respondent Nos.4 and 5 were the

occupants and immediate family members, were on record,

9

which fact has not been taken into consideration by the

Appellate Officer. The Division Bench held that by lifting the

corporate veil, it can be seen that the companies are alter egos

of the occupant and that there is no subletting to the

Companies.

13. On the question of maintainability of the Letters Patent

Appeal, the Division Bench of the High Court answered the same in

the following words:

―13. Firstly we will deal with the contention regarding

maintainability of this Letters Patent Appeal. Learned

counsel for the Respondents urged that earlier writ

petitions challenging the orders passed in proceedings

under the Public Premises Act were being entertained by

the Division Bench and after the decision of the Full

Bench of this Court in the case of M/s. Prakash Securities

Private Limited V/s. LIC of India [2012 (4) Bom. C.R.1]

dated 26 April 2012, they are now being placed before

the Single Judge. He contended that if the appeal is

entertained from the orders passed by the learned Single

Judge in such petitions, then the object of amending rules

for hearing of such petitions by the Single Judge for

expeditious disposal will be lost. Learned counsel for

appellants on the other hand has drawn our attention to

the memo of the petition and the impugned order of the

learned Single Judge wherein it is mentioned that the

petition is filed and was entertained under Articles 226 &

227 of the Constitution of India, and contended that

therefore the appeal is maintainable.

14. It is true that the petitions arising out of the order

passed under the Public Premises Act were being heard

by the Division Bench. This was being done due to

observation of the Division Bench of this Court in the case

of Nusli Neville Wadia V/s. New India Assurance Co. Ltd.

10

& Another [2010 (4) Bom. C.R. 807]. However by an order

dated 15 November 2011, another Division Bench of this

Court expressed doubt about the correctness of the

observation made in the case of Nusli Neville Wadia

(supra) and referred the issue as to whether the petitions

arising out of the orders passed under the Public

Premises Act should be heard by the Division Bench or

Single Judge, to the Full Bench for consideration. The Full

Bench in the case of Prakash Securities [2012 (4) Bom.

C.R. 1] (supra) found that clause 3 of the Rule 18 of

Chapter XVII of the Bombay High Court Appellate Side

Rules 1960 was wide enough to include orders passed

by any quasijudicial authority under any enactment,

even if such explanation is not covered by clause 1, 2, 4

to 43 of Rule 18. The Full Bench found that the order

passed by quasijudicial authority under the Public

Premises Act is also covered by Rule 18 (3) so as to

indicate that the petitions under Articles 226 & 227 of the

Constitution of India challenging such orders are to be

heard and decided by the Single Judge. Reference was

accordingly disposed of by the Full Bench by its

judgment dated 26 April 2012. The Full Bench held that

the Appellate Side Rules as they stand, provide that the

petitions challenging the orders passed under the Public

Premises Act are required to be heard by the learned

Single Judge and therefore the observations made in the

case of Nusli Neville Wadia (supra), were not correct. The

petitions relating to orders passed under Public Premises

Act were being entertained by the Division Bench when

the rules provided that they should be entertained by the

Single Judge. Therefore there was no conscious decision

to remove the petitions arising from orders passed under

the Public Premises, from Division Bench and to place

them before Single Judge. In fact Full Bench found that

these petitions were being wrongly entertained by the

Division Bench.

15. In the judgment of the Full Bench there is no

indication that Letters Patent Appeal arising out of the

orders passed by the Single Judge in proceedings under

the Public Premises Act will not be maintainable. If

Letters Patent Appeals are otherwise maintainable,

judgment of the Full Bench does not take away that right

in respect of petitions challenging the orders passed

under Public Premises Act. Therefore the argument

11

advanced by the learned counsel on maintainability of

the appeal on this ground cannot be accepted.

Maintainability was not contested on any other ground.

In the present case, the petitioner has invoked both

Articles 226 and 227 of the Constitution of India. The

learned Judge also has referred to the said Articles in the

impugned order. Furthermore, the Respondent

Corporation is itself amenable to writ jurisdiction of this

Court, being a public corporation. There is therefore no

substance in the preliminary objection raised by the

learned counsel for the Respondent that the appeal is not

maintainable and that it should be dismissed at the

threshold without looking at the merits of the matter.‖

14. This appeal by the appellant assails the opinion expressed by

the Division Bench not only on maintainability of the Letters Patent

Appeal but also on merits, whereby the Division Bench reversed the

finding of fact recorded by the Estate Officer and affirmed by both,

the City Civil Court, being the Appellate Officer and the learned

Single Judge, whilst rejecting the writ petition filed by the

respondents. However, the argument presently is confined to the

preliminary issue about the maintainability of the Letters Patent

Appeal and if that contention of the appellant was to be accepted, it

would not be necessary for us to examine the other matter raised in

the appeal about the merits of the finding and conclusion recorded

by the Division Bench, being without jurisdiction. Instead, the

contesting respondents will have to be relegated to question the

judgment of the learned Single Judge in that behalf and if such

12

appropriate remedy is resorted to by the contesting respondents,

only then it would become necessary to analyse the same in those

proceedings.

15. According to the appellant, the interplay of Section 9 of the

1971 Act read with the other provisions in the same Act, such as

Sections 3, 8 and 10, makes it amply clear that the jurisdiction

exercised by the Appellate Officer, namely the City Civil Court

Judge, in an appeal under Section 9 of the Act, is in his capacity as

a Civil Court and not persona designata. If so, the remedy under

Article 227 of the Constitution of India alone could be availed in the

fact situation of the present case and not under Article 226, for

issuance of a Writ of Certiorari. In the present case, although the

writ petition filed by the contesting respondents was labelled as one

under Articles 226 and 227 of the Constitution of India, considering

the nature and substance of the challenge, reasoning and nature of

the order passed by the learned Single Judge it could be pursued

only under Article 227 of the Constitution of India and not under

Article 226 or for that matter under Article 226 read with Article

227 of the Constitution of India. Resultantly, the Division Bench

committed manifest error in entertaining the Letters Patent Appeal

against the decision of the learned Single Judge of the same High

13

Court. To buttress the contention that the District Judge/Judicial

Officer, referred to in Section 9 of the 1971 Act, does not exercise

powers as persona designata, reliance has been placed on the

exposition of this Court in Thakur Das (Dead) by LRs Vs. State of

M.P. & Anr.1 and in the cases of Mukri Gopalan Vs. Cheppilat

Puthanpurayil Aboobacker2

, Thakur Jugal Kishore Sinha Vs.

Sitamarhi Central Coop Bank Ltd.3, Central Talkies Ltd. Vs.

Dwarka Prasad4, Brajnandan Sinha Vs. Jyoti Narain5

,

Virender Kumar Satyawadi Vs. State of Punjab6

, Maharashtra

State Financial Corporation Vs. Jaycee Drugs &

Pharmaceuticals (P) Ltd.7 and Asnew Drums (P) Ltd. Vs.

Maharashtra State Finance Corporation8. In support of the

contention that the order of the District Judge/Appellate Officer

would be amenable only to jurisdiction under Article 227 of the

Constitution of India, reliance has been placed on the decision of

Radhey Shyam & Another Vs. Chabbi Nath & Ors.9 and Ram

 

1 1978 (1) SCC 27

2 1995 (5) SCC 5

3 1967 (3) SCR 163

4 1961 (3) SCR 495

5 1955 (2) SCR 955

6 1955 (2) SCR 1013

7 1991 (2) SCC 637

8 1971 (3) SCC 602

9 2015 (5) SCC 423

14

Chander Aggarwal & Anr. Vs. State of Uttar Pradesh & Anr.10

This contention is further elaborated on the basis of the exposition

in the case of Ram Kishan Fauji Vs. State of Haryana11 and

Jogendrasinghji Vijaysinghji vs State of Gujarat12, wherein the

Court observed that the maintainability of Letters Patent Appeal

would depend on the pleadings in the writ petition, nature and

character of the order passed by the learned Single Judge and the

type of directions issued, regard being had to the jurisdictional

perspective in the constitutional context. The appellant invited our

attention to the judgment of the learned Single Judge wherein the

submissions made on behalf of the writ petitioners (contesting

respondents) have been noted in paragraphs 9 to 11 and 15 and

that of the appellant in paragraphs 12 and 16, as also the findings

recorded by the learned Single Judge in paragraphs 19 to 24. It was

urged that the jurisdiction exercised by the learned Single Judge

was plainly ascribable to exercise of power of superintendence

under Article 227 and not of exercise of power to issue a writ or in

the nature of certiorari under Article 226 of the Constitution of

India. It was contended that the Letters Patent Appeal filed by the

 

10 1966 Supp. SCR 393

11 2017(5) SCC 533

12 2015 (9) SCC 1

15

contesting respondents before the Division Bench, therefore, was

not maintainable.

16. Per contra, the respondents would urge that the District

Judge/Appellate Officer exercises power under Section 9 of the

1971 Act as persona designata and not as a Civil Court. Alluding to

the decisions to which we will advert to a little later, the

respondents contend that when a special statute creates an

Appellate Officer and where it refers to the Presiding Judge and not

to the Court to be such Appellate Officer, then it can be said that

the reference has been made to the Judge as persona designata. It

is also well known that where the authority is the creation of a

statute and is indicated or identified by a official designation or as

one of a class, the provisions of statute would have to be looked into

to determine whether the intention was to single him out as

persona designata, his official designation being merely a further

description of him. The legislative scheme concerning the Act under

consideration does not indicate, in any manner, much less by

necessary implication, that he can exercise powers of the Court for

adjudication of the appeal. However, the powers and jurisdiction to

be exercised have been circumscribed by the special law for which

reason also he would be a persona designata. Furthermore, the Act

16

gives finality to the order passed by the appellate officer in terms of

Section 10, which is indicative of the fact that the appellate officer

acts as a persona designata and not as a Court. The provisions of

the 1971 Act are a self-contained code delineating the powers,

jurisdiction and procedure different from general laws such as Civil

Procedure Code or Criminal Procedure Code. At the same time, the

jurisdiction of the ordinary courts has been barred in respect of the

matters to be dealt with under the statute. It is submitted that

keeping in mind the historical background of the 1971 Act, it is not

permissible to consider the appellate officer referred to in Section 9

of the Act as discharging powers and jurisdiction of a Court. The

appellate officer referred to in Section 9 of the Act merely acts as a

persona designata. To buttress this contention, reliance has been

placed on the decisions of the High Courts dealing with this

question, interpreting Section 9 of the 1971 Act and analogous

provisions in the concerned State Public Premises Act, namely;

Nusli Neville Wadia Vs. New India Assurance Co. Ltd.13;

Prakash Securities Pvt. Ltd. Vs. Life Insurance Corp. of India

& Anr.14; N.P. Berry Vs. Delhi Transport Corporation15; State

 

13 2010 (2) Mh. L.J. 978

14 2012 (4) Bom. C.R.1

15 15 (1979) DLT 108

17

of Mysore Vs. P. Shankaranarayana Rao16; Ganga Ram

Dohrey Vs. State of U.P.17; and Sizerali Mohamedali Lodhia Vs.

Gujarat State Road Transport Corp.18.

17. Reliance has been placed also on the other decisions of the

High Courts dealing with the question as to when the appointment

of an appellate authority albeit a judicial officer has been treated as

persona designata under laws other than Public Premises Act,

namely, M/s. Pitman‟s Shorthand Academy Vs. M/s. B. Lila

Ram & Sons19; M. Abdul Wahid Sahib Vs. Dewanjee Abdul

Khader Sahib20; C.S. Balarama Iyer & Anr. Vs. Krishnan

Kunchandi21; Y. Mahabaleswarappa Vs. M. Gopalasami

Mudaliar22; Keshav Ramchandra Vs. Municipal Borough,

Jalgaon & Ors.23; Jagmohan Surajmal Marwadi Vs. Venkatesh

Gopal Ranade.

24; Municipality of Sholapur Vs. Tuljaram

Krishnasa Chavan;25 Thavasikani Nadar Vs. The Election

 

16 (1975) 2 Kar. LJ 280

17 AIR 2002 Allahabad 238

18 2001 (2) Guj. L.R. 1120

19 AIR (37) 1950 East Punjab 181

20 AIR 1947 Madras 400

21 AIR 1968 Kerala 240

22

AIR 1935 Madras 673

23 AIR 1946 Bombay 64

24 AIR 1933 Bombay 105

25 AIR 1931 Bombay 582

18

Commissioner26; Bathula Krishna Brahman & Ors. Vs. Daram

Chenchi Reddy & Ors.27

18. Our attention has also been invited to other decisions taking

the view that the appellate authority cannot be treated as persona

designata but as a Court while dealing with the provisions of Public

Premises Act and other laws, namely, Jinda Ram Vs. UOI28; M.

Papa Naik Vs. Commissioner City Municipal Council29;

Surindra Mohan Vs. Dharam Chand Abrol30; Kiron Chandra

Bose Vs. Kalidas Chatterji31; P. Venkata Somaraji & Ors. Vs.

Principal Munsif & Ors.32 and S. Srinivas Rao Vs. High Court of

A.P.33

Our attention is also invited to the decisions of this Court in

the case of Central Talkies (supra); Ram Chander Aggarwal

(supra); Collector, Varanasi Vs. Gauri Shanker Misra & Ors.34;

Thakur Das (supra); Hanskumar Kishanchand Vs. Union of

 

26 (1974) II Madras LJR 44

27 AIR 1959 AP 129

28 (1999) 2 MP LJ 221

29 (1996) 3 Kant LJ 86

30 AIR 1971 J&K 76

31 AIR 1943 Calcutta 247

32

AIR 1968 AP 22

33

AIR 1989 AP 258

34 AIR 1968 SC 384

19

India35 and Naresh Shridhar Mirajkar Vs. State of

Maharashtra36.

19. The respondents have also relied on the definition of the

expression persona designata given in Osborn‟s Concise Law

Dictionary, 2005 Edition and P. Ramanatha Aiyar‟s Advance Law

Lexicon, 5th Edition. According to the respondents, therefore, the

remedy against the decision of the appellate officer available to the

respondents was only by way of writ petition under Articles 226 and

227 of the Constitution and the respondents, in fact, invoked the

same by filing a writ petition which was initially decided by the

learned Single Judge whose decision could be challenged by way of

an intra-court letters patent appeal before the Division Bench of the

same High Court.

20. We have heard Mr. Ranjit Kumar, learned Solicitor General

appearing for the appellant and Ms. Sonal, learned counsel

appearing for the respondents.

21. Indubitably, in the context of provisions of the 1971 Act, the

question raised in the present appeal has not received the attention

 

35 AIR 1958 SC 947

36

AIR 1967 SC 1

20

of this Court thus far. The decisions of this Court pressed into

service by both sides, which has had occasion to examine the

purport of expression persona designate, are in reference to the

provisions of other Central and State enactments. However, the

exposition in those cases will have bearing on the matter in issue

before us. In that, the principle underlying the exposition in those

cases can be applied for answering the question under

consideration in reference to the provisions of the 1971 Act and

Section 9 in particular. We, therefore, deem it apposite to advert to

the decisions of this Court before we proceed to analyse the

legislative scheme of the 1971 Act.

22. In the case of Thakur Das (supra) rendered by a three-Judge

Bench, this Court examined two contentions in reference to the

purport of Section 6C of the Essential Commodities Act, 1955. The

first question was whether the judicial authority constituted by the

State Government under the said provision, to hear appeals against

the order of confiscation that may be made by the licensing

authority under Section 6A of the said Act, is not an inferior

criminal court subordinate to the High Court and amenable to the

revisional jurisdiction of the High Court under Section 435 read

with Section 439 of the Code of Criminal Procedure? The said

21

contention required this Court to consider whether the judicial

authority appointed under Section 6C of the said Act would be

persona designata, despite the fortuitous circumstance that it

happens to be the Sessions Judge. In paragraphs 7 and 8 of the

reported decision, this Court noted thus:

“7. If the Sessions Judge presiding over the Sessions

Court is the judicial authority, the question is: would it be

an inferior criminal court subordinate to the High Court

for the purposes of Sections 435 and 439 of the Criminal

Procedure Code? At the one end of the spectrum the

submission is that the judicial authority appointed under

Section 6-C would be persona designata and that if by a

fortuitous circumstance the appointed judicial authority

happens to be the Sessions Judge, while entertaining

and hearing an appeal under Section 6-C it would not be

an inferior criminal court subordinate to the High Court

and, therefore, no revision application can be entertained

against his order by the High Court. While conferring

power on the State Government to appoint appellate

forum, the Parliament clearly manifested its intention as

to who should be such Appellate Authority. The

expression “judicial” qualifying the “authority”

clearly indicates that that authority alone can be

appointed to entertain and hear appeals under

Section 6-C on which was conferred the judicial

power of the State. The expression “judicial power

of the State” has to be understood in

contradistinction to executive power. The framers

of the Constitution clearly envisaged courts to be

the repository of the judicial power of the State.

The Appellate Authority under Section 6-C must be

a judicial authority. By using the expression

“judicial authority” it was clearly indicated that

the Appellate Authority must be one such preexisting

authority which was exercising judicial

power of the State. If any other authority as

persona designata was to be constituted there was

no purpose in qualifying the word “authority” by

the specific adjective “judicial”. A judicial

22

authority exercising judicial power of the State is

an authority having its own hierarchy of superior

and inferior court, the law of procedure according

to which it would dispose of matters coming before

it depending upon the nature of jurisdiction

exercised by it acting in judicial manner. In using

the compact expression “judicial authority” the

legislative intention is clearly manifested that from

amongst several pre-existing authorities exercising

judicial powers of the State and discharging

judicial functions, one such may be appointed as

would be competent to discharge the appellate

functions as envisaged by Section 6-C. There is one

in-built suggestion indicating who could be appointed. In

the concept of appeal inheres hierarchy and the Appellate

Authority broadly speaking would be higher than the

authority against whose order the appeal can be

entertained. Here the Appellate Authority would entertain

appeal against the order of Collector, the highest revenue

officer in a district. Sessions Judge is the highest judicial

officer in the district and this situation would provide

material for determining Appellate Authority. In this

connection the legislative history may throw some light

on what the legislature intended by using the expression

―judicial authority‖. The Defence of India Rules, 1962,

conferred power on certain authorities to seize essential

commodities under certain circumstances. Against the

seizure an appeal was provided to the State Government

whose order was made final. By the Amending Act 25 of

1966 Sections 6-A to 6-D were introduced in the Act. This

introduced a basic change in one respect, namely, that

an order of confiscation being penal in character, the

person on whom penalty is imposed is given an

opportunity of approaching a judicial authority. Earlier

appeal from executive officer would lie to another

executive forum. The change is appeal to judicial

authority. Therefore, the expression clearly envisages a

pre-existing judicial authority has to be appointed

Appellate Authority under Section 6-C. When the

provision contained in Section 6-C is examined in the

background of another provision made in the order itself

it would become further distinctly clear that pre-existing

judicial authority was to be designated as Appellate

Authority under Section 6-C. A seizure of essential

commodity on the allegation that the relevant licensing

23

order is violated, would incur three penalties: (1)

cancellation of licence; (2) forfeiture of security deposit;

and (3) confiscation of seized essential commodity, apart

from any prosecution that may be launched under

Section 7. In respect of the first two penalties an appeal

lies to the State Government but in respect of the third

though prior to the introduction of Section 6-C an appeal

would lie to the State Government, a distinct departure is

made in providing an appellate forum which must qualify

for the description and satisfy the test of judicial

authority. Therefore, when the Sessions Judge was

appointed a judicial authority it could not be said that he

was persona designata and was not functioning as a

court.‖

―8. Sections 7 and 9 of the Code of Criminal Procedure,

1898, envisage division of the State into various Sessions

Divisions and setting up of Sessions Court for each such

division, and further provides for appointment of a Judge

to preside over that Court. The Sessions Judge gets his

designation as Sessions Judge as he presides over the

Sessions Court and thereby enjoys the powers and

discharges the functions conferred by the Code.

Therefore, even if the judicial authority appointed

under Section 6C is the Sessions Judge it would

only mean the Judge presiding over the Sessions

Court and discharging the functions of that Court.

If by the Sessions Judge is meant the Judge

presiding over the Sessions Court and that is the

appointed appellate authority, the conclusion is

inescapable that he was not persona designata

which expression is understood to mean a person

pointed out or described as an individual as

opposed to a person ascertained as a member of a

class or as filling a particular character (vide

Central Talkies Ltd. v. Dwarka Prasad and Ram Chandra

v. State of U.P.).‖

(emphasis supplied)

The Court also considered the cleavage of opinion amongst the High

Courts on the construction of the expression “judicial authority”

24

used in Section 6C of the Essential Commodities Act. In paragraphs

9 to 11, this Court answered the same in the following words:

“9. Our attention was drawn to a cleavage of opinion

amongst High Courts on the construction of the

expression ―judicial authority‖ used in Section 6-C. In

State of Mysore v. Pandurang P. Naik, the Mysore High

Court was of the opinion that though a District and

Sessions Judge was appointed as a judicial authority by

the State Government in exercise of the powers conferred

by Section 6-C of the Act in that capacity it would not be

an inferior criminal court within the meaning of Section

435. Same view was taken by the Gujarat High Court in

State of Gujarat v. C.M. Shah. The exact specification of

the Appellate Authority constituted by the notification

could not be gathered from the judgment but it appears

that the appeal was heard by the Additional Sessions

Judge which would indicate that even if a District and

Sessions Judge was appointed as ―judicial authority‖

that expression would comprehend the Additional

Sessions Judge also or the Sessions Judge could transfer

such appeal pending before him to Additional Sessions

Judge which was a pointer that he was not a persona

designata. After referring to certain sections of the Code

of Criminal Procedure it has been held that the Additional

Sessions Judge hearing an appeal under Section 6-C is

not an inferior criminal court within the meaning of

Section 435(1). Our attention was also drawn to State of

Madhya Pradesh v. Vasant Kumar. Only a short note on

this judgment appears in 1972 Jabalpur Law Journal 80

but it clearly transpires that the point under discussion

has not been dealt with by the Court.

10. As against this, this very question was examined by

a Full Bench of the Andhra Pradesh High Court in Public

Prosecutor (A.P.) v. L. Ramayya. Two questions were

referred to the Full Bench. The first was: whether the

District and Sessions Judge who is appointed judicial

authority for hearing appeals under Section 6C is a

persona designata or an inferior Criminal Court, and the

second was: whether even if it is an inferior Criminal

Court, a revision application against the order of the

appellate authority would lie to the High Court? The Full

25

Bench answered the first question in the affirmative.

While summing up its conclusions, the Court held that

when a judicial authority like an officer who presides

over a court is appointed to perform the functions, to

judge and decide in accordance with law and as nothing

has been mentioned about the finality or otherwise of the

decisions made by that authority, it is an indication that

the authority is to act as a court in which case it is not

necessary to mention whether they are final or not as all

the incidents of exercising jurisdiction as a court would

necessarily follow. We are in broad agreement with this

conclusion.

11. We are accordingly of the opinion that even though

the State Government is authorised to appoint an

Appellate Authority under Section 6C, the Legislature

clearly indicated that such appellate authority must of

necessity be a judicial authority. Since under the

Constitution the courts being the repository of the

judicial power and the officer presiding over the

court derives his designation from the

nomenclature of the Court, even if the appointment

is made by the designation of the judicial officer

the Appellate Authority indicated is the Court over

which he presides discharging functions under the

relevant Code and placed in the hierarchy of courts

for the purposes of appeal and revision. Viewed from

this angle, the Sessions Judge, though appointed and

appellate authority by the notification, what the State

Government did was to constitute an appellate authority

in the Sessions Court over which the Sessions Judge

presides. The Sessions Court is constituted under the

Code of Criminal Procedure and indisputably it is an

inferior criminal court in relation to High Court. Therefore,

against the order made in exercise of powers conferred

by Section 6-C a revision application would lie to the High

Court and the High Court would be entitled to entertain a

revision application under Sections 435 and 439 of the

Code of Criminal Procedure, 1898 which was in force at

the relevant time and such revision application would be

competent.‖

(emphasis supplied)

26

23. In paragraph 8 of the same judgment, this Court

unambiguously concluded that as the nomenclature „Sessions

Judge‟ means the Judge presiding over the Sessions Court and that

being the appointed appellate authority, the conclusion is

inescapable that he was not persona designata, which expression is

understood to mean a person pointed out or described as an

individual, as opposed to a person ascertained as a member of a

class or as filling a particular character. These observations are

founded on the decision in the cases of Central Talkies Ltd.

(supra) and Ram Chander Aggarwal (supra).

24. Another instructive exposition is in Mukri Gopalan (supra)

(two Judges). In this case, the Court was called upon to consider

the sweep of Section 18 of the Kerala Buildings (Lease and Rent

Control) Act, 1965. The same envisages that the power of the

appellate authority can be conferred by the Government on such

officers and such authorities not below the rank of Subordinate

Judge. In paragraph 7, this Court restated the well settled position

that an authority can be styled to be persona designata if powers

are conferred on a named person or authority and such powers

cannot be exercised by anyone else. The relevant extract of

paragraph 7 of the reported decision reads thus:

27

“7. As noted earlier the appellate authority, namely the

District Judge, Thallassery has taken the view that since

he is a persona designata he cannot resort to Section 5 of

the Limitation Act for condoning the delay in filing appeal

before him. So far as this reasoning of the appellate

authority is concerned Mr Nariman, learned

counsel for respondent fairly stated that he does

not support this reasoning and it is not his say

that the appellate authority exercising powers

under Section 18 of the Rent Act is a persona

designata. In our view the said fair stand taken by

learned counsel for respondent is fully justified. It

is now well settled that an authority can be styled

to be persona designata if powers are conferred on

a named person or authority and such powers

cannot be exercised by anyone else. The scheme of

the Act to which we have referred earlier contraindicates

such appellate authority to be a persona designata. It is

clear that the appellate authority constituted under

Section 18(1) has to decide lis between parties in a

judicial manner and subject to the revision of its order,

the decision would remain final between the parties.

Such an authority is constituted by designation as

the District Judge of the district having jurisdiction

over the area over which the said Act has been

extended. It becomes obvious that even though the

District Judge concerned might retire or get

transferred or may otherwise cease to hold the

office of the District Judge his successor-in-office

can pick up the thread of the proceedings from the

stage where it was left by his predecessor and can

function as an appellate authority under Section

18. If the District Judge was constituted as an

appellate authority being a persona designata or

as a named person being the appellate authority as

assumed in the present case, such a consequence,

on the scheme of the Act would not follow. In this

connection, it is useful to refer to a decision of this Court

in the case of Central Talkies Ltd. v. Dwarka Prasad. In

that case Hidayatullah, J. speaking for the Court had to

consider whether Additional District Magistrate

empowered under Section 10(2) of Criminal Procedure

Code to exercise powers of District Magistrate was a

persona designata. Repelling the contention that he was

28

a persona designata the learned Judge made the

following pertinent observations:

‗… A persona designata is „a person who is pointed

out or described as an individual, as opposed to a

person ascertained as a member of a class, or as

filling a particular character‟. In the words of

Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara

Rao, personae designatae are „persons selected to

act in their private capacity and not in their

capacity as Judges‟. The same consideration

applies also to a well-known officer like the District

Magistrate named by virtue of his office, and whose

powers the Additional District Magistrate can also

exercise and who can create other officers equal to

himself for the purposes of the Eviction Act. The

decision of Sapru, J. in the Allahabad case, with respect,

was erroneous.‘

Applying the said test to the facts of the present

case it becomes obvious that appellate authorities

as constituted under Section 18 of the Rent Act

being the District Judges they constituted a class

and cannot be considered to be persona designata.

It is true that in this connection, the majority

decision of the High Court in Jokkim Fernandez v.

Amina Kunhi Umma also took a contrary view. But

the said view also does not stand scrutiny in the

light of the statutory scheme regarding

constitution of appellate authority under the Act

and the powers conferred on and the decisions

rendered by it.‖

(emphasis supplied)

 

It may be useful to advert to the exposition in paragraphs 8 and 13

of this decision, which reads thus:

―8. Once it is held that the appellate authority

functioning under Section 18 of the Rent Act is not

a persona designata, it becomes obvious that it

functions as a court. In the present case all the District

Judges having jurisdiction over the areas within which

29

the provisions of the Rent Act have been extended are

constituted as appellate authorities under Section 18 by

the Govt. notification noted earlier. These District

Judges have been conferred the powers of the

appellate authorities. It becomes therefore, obvious

that while adjudicating upon the dispute between

the landlord and tenant and while deciding the

question whether the Rent Control Court’s order is

justified or not such appellate authorities would be

functioning as courts. The test for determining whether

the authority is functioning as a court or not has been

laid down by a series of decisions of this court. We may

refer to one of them, in the case of Thakur Jugal Kishore

Sinha v. Sitamarhi Central Coop. Bank Ltd. In that case

this court was concerned with the question whether the

Assistant Registrar of Cooperative Societies functioning

under Section 48 of the Bihar and Orissa Cooperative

Societies Act, 1935 was a court subordinate to the High

Court for the purpose of Contempt of Courts Act, 1952.

While answering the question in the affirmative, a

division bench of this court speaking through Mitter, J

placed reliance amongst others on the observations found

in the case of Brajnandan Sinha v. Jyoti Narain wherein

it was observed as under:-

‗It is clear, therefore, that in order to constitute a

court in the strict sense of the term, an essential

condition is that the court should have, apart from

having some of the trappings of a judicial tribunal,

power to give a decision or a definitive judgment

which has finality and authoritativeness which are

the essential tests of a judicial pronouncement.‘

Reliance was also placed on another decision of this

court in the case of Virindar Kumar Satyawadi v. The

State of Punjab. Following observations found at page

1018 therein were pressed in service.

‗It may be stated broadly that what distinguishes a

court from a quasi-judicial tribunal is that it is

charged with a duty to decide disputes in a judicial

manner and declares the rights of parties in a

definitive judgment. To decide in a judicial manner

involves that the parties are entitled as a matter of

right to be heard in support of their claim and to

adduce evidence in proof of it. And it also imports

30

an obligation on the part of the authority to decide

the matter on a consideration of the evidence

adduced and in accordance with law. When a

question therefore arises as to whether an

authority created by an Act is a court as

distinguished from a quasi-judicial tribunal, what

has to be decided is whether having regard to the

provisions of the Act it possesses all the attributes

of a court.‘

When the aforesaid well settled tests for deciding

whether an authority is a court or not are applied to the

powers and functions of the appellate authority

constituted under Section 18 of the Rent Act, it becomes

obvious that all the aforesaid essential trappings to

constitute such an authority as a court are found to be

present. In fact, Mr. Nariman learned Counsel for

respondent also fairly stated that these appellate

authorities would be courts and would not be

persona designata. But in his submission as they

are not civil courts constituted and functioning

under the Civil Procedure Code as such, they are

outside the sweep of Section 29(2) of the Limitation

Act. It is therefore, necessary for us to turn to the

aforesaid provision of the Limitation Act. It reads

as under :

‗29(2). Where any special or local law prescribes for

any suit, appeal or application a period of

limitation different from the period prescribed by

the Schedule, the provisions of Section 3 shall

apply as if such period were the period prescribed

by the Schedule and for the purpose of determining

any period of limitation prescribed for any suit,

appeal or application by any special or local law,

the provisions contained in Sections 4 to 24

(inclusive) shall apply only insofar as, and to the

extent to which, they are not expressly excluded by

such special or local law.‘

A mere look at the aforesaid provision shows for its

applicability to the facts of a given case and for

importing the machinery of the provisions

containing Sections 4 to 24 of the Limitation Act

the following two requirements have to be satisfied

by the authority invoking the said provision.

31

(i) There must be a provision for period of limitation

under any special or local law in connection with

any suit, appeal or application.

(ii) The said prescription of period of limitation

under such special or local law should be different

from the period prescribed by the schedule to the

Limitation Act.‖

(emphasis supplied)

―13. As per this sub-section, the provisions

contained in certain sections of the Limitation Act

were applied automatically to determine the

periods under the special laws, and the provisions

contained in other sections were stated to apply

only if they were not expressly excluded by the

special law. The provision (Section 5) relating to the

power of the court to condone delay in preferring

appeals and making applications came under the

latter category. So if the power to condone delay

contained in Section 5 had to be exercised by the

appellate body it had to be conferred by the special

law. That is why we find in a number of special

laws a provision to the effect that the provision

contained in Section 5 of the Limitation Act shall

apply to the proceeding under the special law. The

jurisdiction to entertain proceedings under the

special laws is sometimes given to the ordinary

courts, and sometimes given to separate tribunals

constituted under the special law. When the special

law provides that the provision contained in

Section 5 shall apply to the proceedings under it, it

is really a conferment of the power of the court

under Section 5 to the Tribunals under the special

law – whether these tribunals are courts or not. If

these tribunals under the special law should be

courts in the ordinary sense an express extension

of the provision contained in Section 5 of the

Limitation Act will become otiose in cases where

the special law has created separate tribunals to

adjudicate the rights of parties arising under the

special law. That is not the intension of the

legislature.‖

(emphasis supplied)

32

25. Again in the case of Asnew Drums Pvt. Ltd. (supra), decided

by a three-Judge Bench, this Court considered the question

whether an appeal under Section 32(9) of the State Financial

Corporation Act, 1951, was maintainable before the High Court.

Section 31(1) of the said Act required the Board to apply to the

District Judge within the limits of an industrial concern which was

carrying out the whole or a substantial part of its business or for

one or more of the reliefs specified. Such application could be made

inter alia for an order for the sale of the property pledged,

mortgaged or as security for the loan or advance or for an adinterim

for transfer or removing its machinery or plant or

equipment from the premises of the industrial concern with the

permission of the Board, where such removal is apprehended. The

question considered by this Court was whether by using the words

“in the manner provided in the CPC” in Section 32(8) of the

concerned Act, the legislature intended to include the provisions in

the Code dealing with appeals. The Court after analyzing the

provisions of the Act answered the same in the following words:

―10. The question which really arises is whether by using

the words “in the manner provided in the CPC” in Section

32(8) the Legislature intended to include the provisions in

the Code dealing with appeals. There is no doubt that

under the CPC an order setting aside or refusing to set

aside a sale in execution of a decree is appealable under

33

Order XLIII Rule 1 (j). It is difficult to understand why

the scope of the language should be cut down by

not including appeals provided under the CPC

within the ambit of the words “in the manner

provided in the CPC”. “Manner” means method of

procedure and to provide for an appeal is to

provide for a mode of procedure. The State

Financial Corporation lends huge amounts and we

cannot for a moment imagine that it was the

intention of the Legislature to make the order of

sale of property, passed by the District Judge, final

and only subject to an appeal to the Supreme Court

under Article 136, of the Constitution.

11. The learned Counsel for the respondents contended

that, wherever the Legislature wanted to provide for an

appeal to the High Court, it did so specifically. In this

connection he pointed out that Sub-section (9) of Section

32 provided that “any party aggrieved by an order under

Sub-section (5) or Sub-section (7) may, within thirty days

from the date of the order, appeal to the High Court and

upon such appeal the High Court may, after hearing the

parties, pass such orders thereon as it thinks proper.” It

is true that an appeal has been expressly provided in this

case but the reason for this is that if there had been no

specific provision in Sub-section (9), no appeal would lie

otherwise because it is not provided in Sub-section (5) or

Sub-section (7) that the District Judge should proceed in

the manner provided in the CPC.

12. We are not impressed by the argument that the

Act confers jurisdiction on the District Judge as

persona designata because Sub-section (11) of

Section 32 provides that “the functions of a district

judge under this section shall be exercisable (a) in a

presidency town, where there is a city civil court

having jurisdiction, by a judge of that court and in

the absence of such court, by the High Court; and

(b) elsewhere, also by an additional district Judge.”

These provisions clearly show that the District

Judge is not a persona designata.

13. It was contended that the whole idea of the Act was

to have expeditious execution as otherwise large funds of

the State Financial Corporation would be locked up

during execution proceedings. If this was the intention of

34

the Legislature, it would have expressly provided that no

appeal would lie against an order made under Subsection

(8) of Section 32.‖

(emphasis supplied)

The Court opined that the legislative intent was amply clear that the

District Judge was not a persona designata.

26. Once again, in the case of Maharashtra State Financial

Corporation (supra), decided by a three-Judge Bench of this Court,

while considering the provisions of State Financial Corporation,

1951, following the decision of this Court in Central Talkies Ltd.

(supra), restated that the District Judge exercising jurisdiction

under Sections 31 & 32 of the Act was not a persona designata but

was a court of ordinary civil jurisdiction. This can be discerned from

the dictum in paragraph 26 of the judgment which reads thus:

―26. We may now state our reasons for holding that even

if Section 46B of the Act was not there the provisions of

the Code for the execution of a decree against a surety

who had given only personal guarantee would, in the

absence of any provision to the contrary in the Act, be

applicable. In view of the decision of this Court in

The Central Talkies Ltd., Kanpur v. Dwarka

Prasad, where it was held that a persona designata

is a person selected as an individual in his private

capacity, and not in his capacity as filling a

particular character or office, since the term used

in Section 31(1) of the Act is “District Judge” it

cannot be doubted that the District Judge is not a

persona designata but a court of ordinary civil

jurisdiction while exercising jurisdiction under

35

Sections 31 and 32 of the Act. In National Sewing

Thread Co. Ltd. v. James Chadwick & Bros. Ltd. while

repelling the objection that an appeal under the Letters

Patent against the judgment of a Single Judge passed in

an appeal against the decision of the Registrar under

Section 76(1) of the Trade Marks Act, 1940 was not

maintainable it was held at pages 1033-34 of the Report:

(SCR pp.1033-34)

„Obviously after the appeal had reached the

High Court it has to be determined according to the

rules of practice and procedure of that Court and

in accordance with the provisions of the charter

under which that Court is constituted and which

confers on it power in respect to the method and

manner of exercising that jurisdiction. The rule is

well settled that when a statute directs that an

appeal shall lie to a Court already established,

then that appeal must be regulated by the practice

and procedure of that Court. This rule was very

succinctly stated by Viscount Haldane L.C. in National

Telephone Co., Ltd. v. Postmaster-General, in these

terms:-

„When a question is stated to be referred to an

established Court without more, it, in my opinion,

imports that the ordinary incidents of the

procedure of that Court are to attach, and also that

any general right of appeal from its decision

likewise attaches.‟

The same view was expressed by their Lordships of the

Privy Council in Adaikappa Chettiar v. R.

Chandrasekhara Thevar, wherein it was said:

‗Where a legal right is in dispute and the ordinary Courts

of the country are seized of such dispute the Courts are

governed by the ordinary rules of procedure applicable

thereto and an appeal lies if authorised by such rules,

notwithstanding that the legal right claimed arises under

a special statute which does not, in terms confer a right

of appeal.‘

Again in Secretary of State for India v. Chellikani Rama

Rao, when dealing with the case under the Madras

Forest Act their Lordships observed as follows:

36

‗It was contended on behalf of the appellant that all

further proceedings in Courts in India or by way of

appeal were incompetent, these being excluded by the

terms of the statute just quoted. In their Lordships’

opinion this objection is not well-founded. Their view is

that when proceedings of this character reach the

District Court, that Court is appealed to as one of

the ordinary Courts of the country, with regard to

whose procedure, orders, and decrees the ordinary

rules of the Civil Procedure Code apply.‟

Though the facts of the cases laying down the above rule

were not exactly similar to the facts of the present case,

the principle enunciated therein is one of general

application and has an apposite application to the facts

and circumstances of the present case. Section 76 of the

Trade Marks Act confers a right of appeal to the High

Court and says nothing more about it. That being so, the

High Court being seized as such of the appellate

jurisdiction conferred by Section 76 it has to exercise that

jurisdiction in the same manner as it exercises its other

appellate jurisdiction and when such jurisdiction is

exercised by a single Judge, his judgment becomes

subject to appeal under Clause 15 of the Letters Patent

there being nothing to the contrary in the Trade Marks

Act.”

(emphasis supplied)

27. The question regarding the purport of expression persona

designata also arose for consideration in other cases decided by this

Court to which our attention has been invited. In the case of

Ramchandra Aggarwal (supra), this Court was called upon to

consider whether the District Judge has jurisdiction under Section

24 of the Code of Civil Procedure to transfer a reference made by a

Magistrate to a particular Civil Court under Section 146 of the Code

of Criminal Procedure to another Civil Court, in relation to

37

proceedings under Section 145 of the Code of Criminal Procedure

initiated before the Magistrate on the basis of a report of the police.

The Court relied on its earlier decision in the case of Balakrishna

Udayar Vs. Vasudeva Aiyar,

37 and observed in paragraph 3 of the

reported decision as follows:

―3. In Balakrishan Udayar v. Vasudeva Aiyar 44 I.A.

261, Lord Atkinson has pointed out the difference

between a persona designata and a legal tribunal. The

difference is this that the ‗determination of a persona

designata are not to be treated as judgments of a legal

tribunal‘. In the Central Talkies Ltd. v. Dwarka Prasad,

this Court has accepted the meaning given to the

expression persona designata in Osborn’s Concise Law

Dictionary, 4h edn. p. 263 as ‗a person who is pointed

out or described as an individual, as opposed to a person

ascertained as a member of a class, or as filling a

particular character.‘ Section 146(1) Cr.P.C. empowers a

Magistrate to refer the question as to whether any, and if

so, which of the parties was in possession of the subjectmatter

of dispute at the relevant point of time to a civil

court of competent jurisdiction. The power is not to

refer the matter to the presiding Judge of a

particular civil court but to a court. When a special

or local law provides for an adjudication to be

made by a constituted court – that is, by a court not

created by a special or local law but to an existing

court – it in fact enlarges the ordinary jurisdiction

of such a court. Thus where a special or local

statute refers to a constituted court as a court and

does not refer to the presiding officer of that court

the reference cannot be said to be a persona

designata. This question is well settled. It is, therefore,

unnecessary to say anything more on this part of the

case except that cases dealing with the point have been

well summarised in the recent decision in Chatur Mohan

v. Ram Behari Dixit.‖ (emphasis supplied)

 

37

44 IA 261

38

28. Before we dilate on the matter in issue any further, it is

apposite to take note of the relevant provisions of the 1971 Act, as

were in force prior to 22nd June, 2015, applicable to the present

case. The same read thus:

―2. Definitions.- In this Act, unless the context otherwise

requires,-

1[***]

(b) ‗estate officer‘ means an officer appointed as such by

the Central Government under section 3;

xxx xxx xxx xxx xxx

(fa) ‗statutory authority‘, in relation to the public premises

referred to in clause (e) of this section, means,-

(i) in respect of the public premises placed under the

control of the Secretariat of either House of Parliament,

the Secretariat of the concerned House of Parliament,

(ii) in respect of the public premises referred to in item (i)

of sub-clause (2) and in item (iv) of sub-clause (3) of

that clause, the company or the subsidiary company,

as the case may be, referred to therein,

(iii) in respect of the public premises referred to in item

(ii) of sub-clause (2) of that clause, the corporation

referred to therein,

(iv) in respect of the public premises referred to,

respectively, in items (iii), (iv), (vi) and (vii) of subclause

(2) of that clause, the University, Institute or

Board, as the case may be referred to therein, and

(v) in respect of the public premises referred to in subclause

(3) of that clause, the Council, Corporation or

Corporations, Committee or Authority, as the case may

be, ref erred to in that sub-clause;‖

―3. Appointment of estate officers.- The Central

Government may, by notification in the Official Gazette,-

39

(a) Appoint such persons, being gazetted officers of

Government or of the Government of any Union

Territory or officers of equivalent rank of the statutory

authority, as it thinks fit, to be estate officers for the

purposes of this Act:

Provided that no officer or the Secretariat of the

Rajya Sabha shall be so appointed except after

consultation with the Chairman of the Rajya Sabha

and no officer of the Secretariat of the Lok Sabha

shall be so appointed except after consultation with

Speaker of the Lok Sabha:

Provided further that an officer of a statutory

authority shall only be appointed as an estate

officer in respect of the public premises controlled

by that authority; and

(b) define the local limits within which, or the categories

of public premises in respect of which, the estate

officers shall exercise the powers conferred, and

perform the duties imposed, on estate officers by or

under this Act.‖

―8. Power of estate officers.- An estate officer shall, for

the purpose of holding any inquiry under this Act, have

the same powers as are vested in a civil court under the

Code of Civil Procedure, 1908 (5 of 1908), when trying a

suit in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of any

person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) any other matter which may be prescribed.‖

―9. Appeals.—(1) An appeal shall lie from every order of

the estate officer made in respect of any public premises

under section 5 or section 5B or section 5C or section 7 to

an appellate officer who shall be the district judge

of the district in which the public premises are

situate or such other judicial officer in that district

of not less than ten years standing as the district

judge may designate in this behalf.

(2) An appeal under sub-section (1) shall be preferred,—

40

(a) in the case of an appeal from an order under section

5. [within twelve days] from the date of publication of the

order under sub-section (1) of that section;

(b) in the case of an appeal from an order [under section

5B or section 7, within twelve days] from the date on

which the order is communicated to the appellant; [and]

(c) in the case of an appeal from an order under section

5C, within twelve days from the date of such order:

Provided that the appellate officer may entertain

the appeal after the expiry of the said period, if he

is satisfied that the appellant was prevented by

sufficient cause from filing the appeal in time.

(3) Where an appeal is preferred from an order of

the estate officer, the appellate officer may stay

the enforcement of that order for such period and

on such conditions as he deems fit:

Provided that where the construction or erection of any

building or other structure or fixture or execution of any

other work was not completed on the day on which an

order was made under section 5B for the demolition or

removal of such building or other structure or fixture, the

appellate officer shall not make any order for the stay of

enforcement of such order, unless such security, as may

be sufficient in the opinion of the appellate officer, has

been given by the appellant for not proceeding with such

construction, erection or work pending the disposal of the

appeal;

(4) Every appeal under this section shall be

disposed of by the appellate officer as expeditiously

as possible.

(5) The costs of any appeal under this section shall be in

the discretion of the appellate officer.

(6) For the purposes of this section, a presidencytown

shall be deemed to be a district and the chief

judge or the principal judge of the city civil court

therein shall be deemed to be the district judge of

the district.‖

(emphasis supplied)

41

―10. Finality of orders.- Save as otherwise expressly

provided in this Act, every order made by an estate

officer or appellate officer under this Act shall be final

and shall not be called in question in any original suit,

application or execution proceeding and no injunction

shall be granted by any court or other authority in

respect of any action taken or to be taken in pursuance of

any power conferred by or under this Act.‖

―15. Bar of jurisdiction.- No court shall have

jurisdiction to entertain any suit or proceeding in respect

of(a)

the eviction of any person who is in unauthorised

occupation of any public premises, or

(b) the removal of any building, structure or fixture or

goods, cattle or other animal from any public premises

under section 5A, or

(c) the demolition of any building or other structure made,

or ordered to be made, under section 5B, or

(cc) the sealing of any erection or work or of any

public premises under section 5C, or

(d) the arrears of rent payable under sub-section (1) of

section 7 or damages payable under sub-section (2), or

interest payable under sub-section (2A), of that

section, or

(e) the recovery of –

(i) costs of removal of any building, structure or

fixture or goods, cattle or other animal under

section 5A, or

(ii) expenses of demolition under section 5B, or

(iii) costs awarded to the Central Government or

statutory authority under sub-section (5) of

section 9, or

(iv) any portion of such rent, damages, costs of

removal, expenses of demolition or costs

awarded to the Central Government or the

statutory authority.‖

We may now advert to the provisions in the Public Premises

(Eviction of Unauthorised Occupants) Rules, 1971.

42

―9. Procedure in appeals.- (1) An appeal preferred

under section 9 of the Act shall be in writing, shall set

forth concisely the grounds of objection to the order

appealed against, and shall be accompanied by a copy of

such order.

(2) On receipt of the appeal and after calling for and

perusing the record of the proceedings before the estate

officer, the appellate officer shall appoint a time and

place for the hearing of the appeal and shall give notice

thereof to the estate officer against whose order the

appeal is preferred, to the appellant and to the head of

the department or authority in administrative control of

the premises.‖

29. The avowed purpose for enacting the 1971 Act was to provide

for a speedy remedy for taking possession of the public premises

which were in unauthorized occupation. For achieving the said goal,

an Estate Officer is appointed under Section 3 of the Act who has

been given powers to issue notice of show cause and initiate

proceedings for eviction and recovery of outstanding rental dues

and damages in respect of public premises. Section 8 empowers the

Estate Officer to exercise the same powers as are vested in a civil

court under the Code of Civil Procedure, 1908. We are not called

upon to consider the question as to whether the Estate Officer,

while exercising powers invested in him, acts as a court or has the

trappings of a court. The only question that we have attempted to

answer is whether the appointment of the appellate officer referred

43

to in Section 9 of the Act before whom an appeal shall lie, is in the

capacity of persona designata or as a court.

30. Sub-section (1) of Section 9 is the core provision to be kept in

mind for answering the point in issue. It 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

44

persona designata. In the first place, 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.

Secondly, the District Judge or designated judicial officer exercises

judicial authority within his jurisdiction. Thirdly, 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. Fourthly, 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. The District Court

exercises original and appellate jurisdiction by virtue of Sections 7

and 8 respectively, of the 1869 Act and is the principal Court of

original civil jurisdiction in the district within the meaning of

C.P.C., as per Section 7 of that Act. As per Section 8 of the Act of

1869, the District Court is the Court of appeal from all decrees and

orders passed by the subordinate Courts from which an appeal lies

under any law for the time being in force. As per Section 16 of that

Act, the District Judge can refer to any Additional District Judges

subordinate to him, any original suits and proceedings of a civil

nature, applications or references under Special Acts and

45

miscellaneous applications. The Additional District Judges have

jurisdiction to try such suits and to dispose of such applications or

references. Section 17 of that Act envisages that an Additional

District Judge shall have jurisdiction to try the appeals as may be

referred to him by the District Judge. Section 19 of that Act, is a

provision to invest power on the Additional District Judges, with

powers of District Judge. The hierarchy of judicial officers of the

District Court can be culled out from the 1869 Act. 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. Section 7 of this Act

envisages that when the City Civil Court consists of more than one

Judge, each of the Judges may exercise all or any of the powers

conferred on the Court by the said Act or any other law for the time

being in force. Clause (b) of Section 7 stipulates that the State

Government may appoint any one of the Judges to be the Principal

Judge and any two other Judges to be called the Additional

Principal Judges. The Principal Judge has been given authority to

46

make such arrangements as he may think fit for the distribution of

the business of the Court among the various Judges thereof. In

other words, 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. The legislative

intent behind providing an appeal under Section 9 before the

Appellate Officer to be the District Judge of the concerned District

47

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.

31. Indeed, the expression used in Section 9 is “Appellate Officer”

and not “Appellate Authority” as has been used in Section 6C of the

Essential Commodities Act, 1955, considered by the Supreme Court

in the case of Thakur Das (supra). That, 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

48

Judge, for deciding an appeal under Section 9, can and is expected

to exercise the powers of the civil court.

32. In the case of Nusli Neville Wadia (supra) the Division Bench

was essentially called upon to answer the contention raised before it

that, considering Chapter XVII Rule 18 of the Bombay Appellate

Side Rules, 1960, the petition in terms of Rule 18 must be heard by

a learned Single Judge of that Court or by the Division Bench and

whether the Division Bench has no jurisdiction to hear and decide

the appeal against the decision of the City Civil Court/District

Court in proceedings arising from the 1971 Act. The analysis by the

Division Bench therefore, was with reference to the said plea.

Indeed, the Division Bench also adverted to the aspect as to

whether the Principal Judge, City Civil Court was acting as a Court

or persona designata. It merely followed the decisions in the case of

N.P. Berry (supra) and Shri Mahesh N. Kothari and Others Vs.

Life Insurance Corporation of India and another in Writ

Petition No.6846 of 2005, decided on 05.10.2006, wherein it has

been held that the legislature did not confer power on the District

Judge or a Principal Judge of the City Civil Court to hear the

appeals as such but has chosen to designate the authority as an

Appellate Officer making it clear, that the power was conferred in

49

his capacity as persona designata. The Division Bench has also

adverted to the decisions in Gangadhar Bapurao Gadre Vs. Hubli

Municipality38 dealing with Section 22 of the Bombay District

Municipality Act; Municipality of Sholapur Vs. Tuljaram

Krishnasa Chavan39 dealing with provisions of Bombay City

Municipalities Act; Keshav Ramchandra (supra), dealing with

Section 15 of the provisions of Bombay Municipal Act and

Jagmohan Surajmal Marwadi (supra), and held that the District

Judge exercised his power as a persona designata.

33. We will therefore traverse through the decisions adverted to in

Nusli Neville Wadia‟s case (supra). Before we examine those

decisions, it is apposite to take note of the Full Bench judgment of

the Bombay High Court in the case of Prakash Securities Pvt.

Ltd. (supra). The question referred to the Full Bench, reads thus:

―Whether a writ petition arising out of order passed

under the Public Premises (Eviction of Unauthorized

Occupants) Act, 1971 should be placed before a learned

Single Judge of this Court in Accordance with Rule 18 (3)

of the Chapter XVII of the Bombay High Court Appellate

Side Rules, 1960 or should be placed before a Division

Bench?‖

 

38 1925 B.L.R. 519

39 AIR 1931 Bombay 582

50

The Full Bench analysed the scheme of the Bombay High Court

Appellate Side Rules, 1960 and opined that the order passed by the

quasi judicial authority under the Act of 1971 is also covered by

Rule 18 (3) and writ petition under Article 226 or 227 of the

Constitution of India against such a decision must be heard and

decided by the learned Single Judge of the High Court. In

paragraph 8, finally, the Full Bench observed thus:

―8. Since the Public Premises Act, 1971 is not an

enactment made by Parliament in exercise of powers

under Article 323-B, the question of applying the above

direction of the Supreme Court in L. Chandra Kumar case

cannot arise. We are, therefore, unable to agree with the

view taken by the Division Bench in Nusli Neville Wadia

case (supra). It is clear that under the provisions of Rule

18(3) of Bombay High Court Appellate Side Rules, 1960,

a petition under Articles 226 and/or 227 of the

Constitution challenging the order of the Appellate

Authority under the Public Premises Act, 1971 will be

required to be heard and decided by a learned Single

Judge of this Court. The decision in Nusli Neville Wadia

case is, therefore, overruled in so far as the Division

Bench in Nusli Neville Wadia case has taken a view that

when the order is passed by a Tribunal under a

legislation relating to any subject referable to Article 323-

B(2) of the Constitution, the petitions challenging such

orders will have to be necessarily heard by the Division

Bench. It is clarified that the directions given by the

Supreme Court in L. Chandra Kumar case will apply only

when the Tribunal is established under a law which is

specifically made by the appropriate legislature in

exercise of powers conferred by Articles 323-A or 323-B.

Merely because a legislation, existing in future, deals

with a subject referable to any sub-clause in Clause (2) of

Article 323-B of the Constitution, such legislation does not

by itself become a legislation under Article 323-B of the

Constitution.‖

51

34. Indubitably, the Full Bench was “not” called upon to examine

the issue as to whether the remedy of an appeal under Section 9 of

the Act, 1971 before the Appellate Officer, is before an authority

exercising powers in his capacity as a persona designata or as a

Civil Court.

35. We may now turn to the decision of the Delhi High Court in

N.P. Berry (supra), on which reliance has been placed by the

Bombay High Court in Nusli Neville Wadia‟s case (supra). The

main point considered by the Delhi High Court was about the

distinction between a “Judge” acting as a persona designata and

that as a “Court”, in the context of an order passed by an additional

district judge of Delhi acting as an Appellate Officer under Section 9

of 1971 Act.

36. We may reiterate that, in the present case, we are not

concerned with the question as to whether the Estate Officer

functions as a Court whilst exercising powers under the 1971 Act,

an issue which was also considered by the Delhi High Court. It also

dealt with the question as to whether the Appellate Officer defined

in Section 9 of the 1971 Act, acts as a persona designata and not as

52

a Court. The Delhi High Court opined that the mere fact that the

Appellate Officer is a District Judge is not conclusive to hold that he

has to act as a Court. It went on to observe that if that had been the

intention of the legislature, Section 9 would have empowered either

the Court of a District Judge or at any rate, the District Judge as

such to hear the appeals. This view expressed by the Delhi High

Court, in our opinion, is untenable, keeping in mind the exposition

in the case of Thakur Das (supra) and Mukri Gopalan (supra) in

particular.

37. Indeed, the Delhi High Court could not have noticed the

aforementioned decisions of this Court, wherein it has been

observed that a persona designata is a person who is pointed out or

described as an individual as opposed to a person ascertained as a

member of a class, or as filling a particular character. We are

conscious of the fact that the decision in Thakur Das (supra) was

in relation to the purport of Section 6C of the Essential

Commodities Act and the decision in Mukri Gopalan (supra) was in

respect of Section 18 of the Kerala Buildings (Lease and Rent

Control) Act, 1955. As noted earlier, Section 6C of the Essential

Commodities Act refers to the “judicial authority” appointed by the

State Government concerned and Section 18 of the Kerala Buildings

53

(Lease and Rent Control) Act refers to such officers and authorities

not below the rank of Subordinate Judge to exercise the powers of

the appellate authority. However, the principle underlying these

enunciations will apply on all fours to the dispensation stipulated in

the 1971 Act. For, it predicates that the Appellate Officer shall be

the District Judge of the district in which the premises are situated

or such other judicial officer designated by the District Judge.

38. The Bombay High Court in Nusli Neville Wadia‟s case largely

relied upon the decision of the Delhi High Court in N.P. Berry‟s

case. We are bound by the dictum in the case of Thakur Das

(supra) decided by a three-Judge Bench of this Court wherein it is

observed that the expression “judicial” qualifying the “authority”

clearly indicates that that authority alone can be appointed to

intervene and hear the appeals on which was conferred the judicial

powers of the State. By a reference to judicial authority, it is

indicative of the fact that the appellate authority must be one such

pre-existing authority which was exercising judicial powers of the

State and if any authority as persona designata was to be

constituted, there was no purpose in qualifying the word “authority”

by the specific adjective “judicial”. The thrust of the exposition is

that the “judicial authority” which is a pre-existing authority

54

exercising judicial power of the State, is a strong indication of

legislative intent to depart from the dispensation of persona

designata when a person is pointed out or described as an

individual, as opposed to a person ascertained as a member of a

class, or as filling a particular character. That view has been

reiterated even in Mukri Gopalan (supra).

 

39. Notably, 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. In the case of Thakur

Das (supra), in paragraph 9, while analyzing the cleavage of opinion

of the High Courts, it is noticed that the expression “judicial

authority” would comprehend the Additional Sessions Judge or the

Sessions Judge could transfer such appeal pending before him to

Additional Sessions Judge which was a pointer to the fact that he

was not a persona designata. 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 will be useful to advert to

55

Section 7 of the City Civil Courts Act and Sections 3, 5 & 7 of the

Maharashtra Civil Courts Act. 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. In our opinion, 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 pre-existing judicial authority in the district concerned.

40. The Delhi High Court also considered the question as to

whether the power exercised by the appellate officer is in his

capacity of a Court or otherwise. Relying on Mulla‟s Code of Civil

Procedure, 13th Edition Volume I, Page 500, it has been observed

that where the word used in the enactment giving the special

56

jurisdiction is not “Court” but “judge”, the entire enactment is to be

looked into to find out whether the matter is to be decided by him

as a Court or in his personal capacity. It went on to observe that no

authority is forthcoming to show that when the word “Court” is not

used at all, the District Judge or a Subordinate Judge functioning

under a statute is held to be a Court even when the statute itself

shows that he is to function as an appellate officer or with some

designation other than that of a Court, and further when CPC has

not been applied as a procedure to be followed by the judge and

when there is no indication that the judge is to function as a Court.

It then observed that the Court is a creation of a statute either

under CPC or Punjab Courts Act. In the final analysis, the Delhi

High Court concluded that the appellate officer cannot be regarded

as a Court and must, therefore, be regarded as a persona designata.

41. 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. For the reasons

already alluded to we have no hesitation in holding that the remedy

of appeal under Section 9 before the Appellate Officer is not as a

57

persona designata but to a pre-existing judicial authority. 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. [See para 26 of Maharashtra State Financial

Corporation (supra), reproduced in earlier part of this judgment in

para 26]. 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. Since the edifice on which the conclusions reached by

the Delhi High Court, that an appellate officer is persona designata

and not a Court, cannot be countenanced in law, the Bombay High

Court decisions in Nusli Neville Wadia‟s case (supra) and also

Prakash Securities Pvt. Ltd. (supra), cannot hold the field to that

extent for the same logic.

42. Our attention was invited to yet another decision in the case of

State of Mysore Vs. P. Shankaranarayana Rao (supra). The

learned Single Judge of the Karnataka High Court examined the

question under consideration as to whether the District Judge who

is constituted as an appellate officer under Section 10 of the

58

Karnataka Public Premises (Eviction of Unauthorised Occupants)

Act, 1961, acts as a Court or as a persona designata? The decision

in Virindar Kumar Satyawadi Vs. State of Punjab40 was referred

to, wherein it was observed that what distinguishes a Court from a

quasi-judicial authority is that it is charged with a duty to decide

disputes in a judicial manner and declare rights of parties in a

definitive judgment. To decide in a judicial manner involves that the

parties are entitled as a matter of right to be heard in support of

their claim and to adduce evidence in support of it. Further, it also

imports an obligation on the part of the authority to decide the

matter on a consideration of the evidence adduced and in

accordance with law. The distinction between the Court and quasijudicial

tribunal has to be decided having regard to the provisions of

the Act and if it possesses all the attributes of a Court. Referring to

Section 10 of the Karnataka Act, which provides that an appeal

shall lie from every order of the competent officer made in respect of

any public premises, to an appellate officer who shall be “only” the

District Judge having jurisdiction over the area, the Court

eventually concluded that the intention of enacting the term

“appellate officer” in Section 10 is indicative of the fact that the

 

40

AIR 1956 SC 153

59

District Judge must act as appellate officer with limited jurisdiction

to dispose of the appeal in the manner set out by the provisions of

Section 10 itself, which means that he cannot exercise the general

powers of the District Court. It went on to observe that a finality is

attached to the order of the District Judge in terms of Section 11 of

the Karnataka Act is a further indication that a judge must act only

as a persona designata and not as a Court. In the 1971 Act,

however, the appeal under Section 9 can be heard and decided not

only by the District Judge himself but by any other judicial officer of

the District Court possessing requisite qualifications designated for

that purpose.

43. In the case of Sizerali Mohamedali Lodhia (supra), the

provisions of Section 9 of the Gujarat Public Premises (Eviction of

Unauthorized Occupants) Act, 1972, came up for scrutiny. The

Gujarat High Court was essentially concerned with the question as

to whether the remedy of revision against the order passed by the

appellate officer in an appeal preferred under Section 9 of the

Gujarat Public Premises Act (which is analogous to Section 9 of the

1971 Act), was maintainable before the High Court. The argument

before the Gujarat High Court was that even if it is taken that the

appellate officer is not persona designata but a Court, the question

60

arises as to whether the order passed by the appellate officer under

Section 9 of the Gujarat Public Premises Act is such against which

remedy under Section 115 of the CPC lies. After analyzing the

decisions noted in paragraph 11 of the judgment, including the

cases of Thakur Das and Mukri Gopalan (supra), the Court went on

to observe that since the order of the appellate officer has been

made final in terms of Section 10 of the State Act, it cannot be

assailed under Section 115 of the CPC before the High Court in its

revisional jurisdiction. It finally concluded in paragraph 15 that

assuming for the sake of argument that the remedy of revision lies,

it would not be an efficacious alternative remedy so as to throw out

the petition under Article 226 and/or Article 227 of the Constitution

of India. The High Court, therefore, examined the issue on merits.

44. The next case commended to us is the decision of Full Bench

of East Punjab High Court in M/s. Pitman‟s Shorthand Academy

(supra), rendered in Civil Revision Application filed under Section

115 of CPC, against the decision of the Subordinate Court in rent

proceedings arising from Punjab Urban Rent Restriction Act, 1947.

The Court analysed the provisions of the State Rent Act and opined

that the functions of the Controllers and Appellate Authorities

under the Act did not indicate any attribute of a Court of law. In

61

other words, the legislative intent behind appointing the Controllers

and Appellate Authorities was to appoint them as persona designata

and not as Court. This decision need not detain us for the reasons

already alluded to in the earlier part of the judgment which are

founded on the principles underlying the exposition of this Court in

Thakur Das and Mukri Gopalan, in particular.

45. In case of Ganga Ram Dohrey (supra), the question

considered was whether there is a specific provision given in the

U.P. Public Premises (Eviction of Unauthorised Occupants) Act,

1972, to transfer the appeal and since there is no provision in the

Act by which Section 24 of CPC has been made applicable whether

the application under Section 24 of CPC for transfer of case was

maintainable? The Court relying on the decision in the case of Abid

Ali Vs. District Judge, Baharaich,

41 concluded that application

under Section 24 of CPC was not maintainable, for, the proceedings

before the District Judge under Section 9 of the U.P. Public

Premises Act were not other proceedings under the Code of Civil

Procedure as envisaged by Section 24 of CPC.

 

41 (1987 Allahabad Law Journal 179)

62

46. In the Case of Jinda Ram (supra), the Division Bench of the

Madhya Pradesh High Court was called upon to consider the

maintainability of revision application under Section 115 of Civil

Procedure Code against an order passed by the District Judge as an

Appellate Officer under Section 9 of the 1971 Act. After considering

the conflicting decisions of the same High Court on the point, the

Division Bench held that an order passed by the Appellate Officer

under Section 9 is amenable to revisional jurisdiction of the High

Court under Section 115 of Civil Procedure Code. The Court relied

upon the exposition of this Court in the case of Mukri Gopalan

(supra) wherein it has been observed that the appellate authorities

constituted under the enactment constitute a class and cannot be

considered as a persona designata. Further, the appellate authority

functions as a Court. The Court also referred to another decision of

this Court in Shyam Sunder Agarwal and Co. Vs. Union of

India42 wherein it has been held that appellate order having been

passed by a Civil Court, constituted under a special statute

subordinate to the High Court though made final under the Act, it

is amenable to revisional jurisdiction of the High Court under

Section 115 of the Code of Civil Procedure. The Court relied upon

 

42 (1996) 2 SCC 132

63

other decisions of this Court to buttress the conclusion that the

remedy of revision under Section 115 of C.P.C. was available

against an order passed by the District Judge on an appeal under

Section 9 of the Act. Be that as it may, we are certain that remedy

under Article 227 of the Constitution of India is availed against the

decision of the Appellate Officer.

47. In the case of M. Papa Naik (supra) the Court was called

upon to examine the purport of Section 9 of the Karnataka Public

Premises (Eviction of Unauthorised Occupants) Act, 1974. Even in

this case the question was whether a remedy of revision or writ

petition would lie against the order passed by the District Judge on

an appeal preferred under Section 10 of the State Act. The Court

concluded that the order passed by the District Judge as an

appellate authority under Section 9 of the State Act does not cease

to be a Court subordinate to the High Court and any order passed

by him is amenable to the jurisdiction of the High Court under

Section 115 C.P.C.. In support of this conclusion, the learned Single

Judge relied upon the exposition in the case of Central Talkies

Ltd. (supra) and Parthasaradhi Naidu Vs. Koteswara Rao.

43

 

43 ILR (1924) 47 Mad 369

64

48. Even though the respondents have invited our attention to

other decisions of High Courts and also of Supreme Court which

have analysed the provisions of other legislations, it is unnecessary

to dilate on those decisions as we intend to apply the principles

underlying the decisions of three-Judge Bench of this Court in

Thakur Das (supra), Asnew Drums Pvt. Ltd. (supra),

Maharashtra State Financial Corporation (supra), Ram

Chander Aggarwal (supra) and Mukri Gopalan (supra), in

particular, to conclude that the Appellate Officer referred to in

Section 9 of the 1971 Act, is not a persona designata but acts as a

civil court.

49. In other words, 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.

65

50. Reverting to the facts of 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 our conclusion that the order

passed by the District Judge (in this case, Judge, Bombay City Civil

Court at Mumbai) 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

learned Single Judge of the Bombay High Court dated 14.08.2012

we have no hesitation in taking the view that the true nature and

substance of the order of the learned 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. Indeed, the learned Single Judge

has opened the judgment by fairly noting the fact that the writ

petition filed by the respondents was under Articles 226 and 227 of

the Constitution of India. However, keeping in mind the exposition

of this Court in the case of Ram Kishan Fauji (supra) wherein it

has been explicated that in determining whether an order of learned

Single Judge is in exercise of powers under Article 226 or 227 the

66

vital factor is the nature of jurisdiction invoked by a party and the

true nature and character of the order passed and the directions

issued by the learned Single Judge. In paragraph 40 of the reported

decision, the Court adverting to its earlier decision observed thus:

―40. xxx xxx xxx Whether the learned Single Judge

has exercised the jurisdiction Under Article 226 or Under

Article 227 or both, would depend upon various aspects.

There can be orders passed by the learned Single Judge

which can be construed as an order under both the

articles in a composite manner, for they can co-exist,

coincide and imbricate. It was reiterated that it would

depend upon the nature, contour and character of the

order and it will be the obligation of the Division Bench

hearing the letters patent appeal to discern and decide

whether the order has been passed by the learned Single

Judge in exercise of jurisdiction Under Article 226 or 227

of the Constitution or both. The two-Judge Bench further

clarified that the Division Bench would also be required

to scrutinise whether the facts of the case justify the

assertions made in the petition to invoke the jurisdiction

under both the articles and the relief prayed on that

foundation. The delineation with regard to necessary

party not being relevant in the present case, the said

aspect need not be adverted to.‖

Again in paragraphs 41 and 42, which may be useful for answering

the matter in issue, the Court observed thus:

―41. We have referred to these decisions only to

highlight that it is beyond any shadow of doubt

that the order of civil court can only be challenged

Under Article 227 of the Constitution and from

such challenge, no intra-court appeal would lie and

in other cases, it will depend upon the other factors

as have been enumerated therein.

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42. At this stage, it is extremely necessary to cull out the

conclusions which are deducible from the aforesaid

pronouncements. They are:

42.1 An appeal shall lie from the judgment of a Single

Judge to a Division Bench of the High Court if it is so

permitted within the ambit and sweep of the Letters

Patent.

42.2 The power conferred on the High Court by the

Letters Patent can be abolished or curtailed by the

competent legislature by bringing appropriate legislation.

42.3 A writ petition which assails the order of a

civil court in the High Court has to be understood,

in all circumstances, to be a challenge Under

Article 227 of the Constitution and determination

by the High Court under the said Article and,

hence, no intra-court appeal is entertainable.

42.4 The tenability of intra-court appeal will

depend upon the Bench adjudicating the lis as to

how it understands and appreciates the order

passed by the learned Single Judge. There cannot

be a straitjacket formula for the same.‖

(emphasis supplied)

51. In the case of Radhey Shyam (supra) decided by a threeJudge

Bench, this Court after analyzing all the earlier decisions on

the point, restated the legal position that in cases where judicial

order violated the fundamental right, the challenge thereto would lie

by way of an appeal or revision or under Article 227, and not by

way of writ under Article 226 and Article 32. The dictum in

paragraphs 25, 27 and 29 of this decision is instructive. The same

read thus:

68

“25. It is true that this Court has laid down that

technicalities associated with the prerogative writs in

England have no role to play under our constitutional

scheme. There is no parallel system of King’s Court in

India and of all other courts having limited jurisdiction

subject to supervision of King’s Court. Courts are set up

under the Constitution or the laws. All courts in the

jurisdiction of a High Court are subordinate to it and

subject to its control and supervision Under Article 227.

Writ jurisdiction is constitutionally conferred on all High

Courts. Broad principles of writ jurisdiction followed in

England are applicable to India and a writ of certiorari

lies against patently erroneous or without jurisdiction

orders of Tribunals or authorities or courts other than

judicial courts. There are no precedents in India for the

High Courts to issue writs to subordinate courts. Control

of working of subordinate courts in dealing with their

judicial orders is exercised by way of appellate or

revisional powers or power of superintendence Under

Article 227. Orders of civil court stand on different footing

from the orders of authorities or Tribunals or courts other

than judicial/civil courts. While appellate or revisional

jurisdiction is regulated by statutes, power of

superintendence Under Article 227 is constitutional. The

expression “inferior court” is not referable to judicial

courts, as rightly observed in the referring order in paras

26 and 27 quoted above.

26. XXX XXX XXX

27. Thus, we are of the view that judicial orders of

civil courts are not amenable to a writ of certiorari

Under Article 226. We are also in agreement with the

view of the referring Bench that a writ of mandamus does

not lie against a private person not discharging any

public duty. Scope of Article 227 is different from Article

226.

28. XXX XXX XXX

29. Accordingly, we answer the question referred as

follows:

29.1 Judicial orders of civil court are not amenable

to writ jurisdiction under Article 226 of the

Constitution;

69

29.2 Jurisdiction Under Article 227 is distinct from

jurisdiction Under Article 226.

29.3 Contrary view in Surya Dev Rai is overruled.‖

(emphasis supplied)

52. Similar view has been expressed in Jogendrasinghji (supra).

In this decision, it has been held that the order passed by the Civil

Court is amenable to scrutiny only in exercise of jurisdiction under

Article 227 of the Constitution of India and no intra court appeal is

maintainable from the decision of a Single Judge. In paragraph 30

of the reported decision, the Court observed thus:

―30. From the aforesaid pronouncements, it is graphically

clear that maintainability of a letters patent appeal would

depend upon the pleadings in the writ petition, the nature

and character of the order passed by the learned Single

Judge, the type of directions issued regard being had to

the jurisdictional perspectives in the constitutional

context. Barring the civil court, from which order as held

by the three-Judge Bench in Radhey Shyam (supra) that

a writ petition can lie only Under Article 227 of the

Constitution, orders from tribunals cannot always be

regarded for all purposes to be Under Article 227 of the

Constitution. Whether the learned Single Judge has

exercised the jurisdiction Under Article 226 or Under

Article 227 or both, needless to emphasise, would

depend upon various aspects that have been emphasised

in the aforestated authorities of this Court. There can be

orders passed by the learned Single Judge which can be

construed as an order under both the articles in a

composite manner, for they can co-exist, coincide and

imbricate. We reiterate it would depend upon the nature,

contour and character of the order and it will be the

obligation of the Division Bench hearing the letters patent

appeal to discern and decide whether the order has been

passed by the learned Single Judge in exercise of

70

jurisdiction Under Article 226 or 227 of the Constitution

or both. The Division Bench would also be required to

scrutinize whether the facts of the case justify the

assertions made in the petition to invoke the jurisdiction

under both the articles and the relief prayed on that

foundation. Be it stated, one of the conclusions recorded

by the High Court in the impugned judgment pertains to

demand and payment of court fees. We do not intend to

comment on the same as that would depend upon the

rules framed by the High Court.‖

In the concluding part of the reported judgment in paragraph 44,

the Court observed thus:

―44. We have stated in the beginning that three issues

arise despite the High Court framing number of issues

and answering it at various levels. It is to be borne in

mind how the jurisdiction under the letters patent appeal

is to be exercised cannot exhaustively be stated. It will

depend upon the Bench adjudicating the lis how it

understands and appreciates the order passed by the

learned Single Judge. There cannot be a straight-jacket

formula for the same. Needless to say, the High Court

while exercising jurisdiction Under Article 227 of the

Constitution has to be guided by the parameters laid

down by this Court and some of the judgments that have

been referred to in Radhey Shyam (supra).‖

53. In paragraph 45.2 of the same judgment, the Court

authoritatively concluded that 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 and as per the

pronouncement in Radhey Shyam (supra), no writ can be issued

71

against the order passed by the Civil Court and, therefore, no letters

patent appeal would be maintainable.

54. In the impugned judgment, the Division Bench merely went by

the decisions of the Delhi High Court and its own Court in Nusli

Neville Wadia (supra) and Prakash Securities Pvt. Ltd. (supra).

We do not find any other analysis made by the Division Bench to

entertain the Letters Patent Appeal, as to in what manner the

judgment of the learned 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 of the same High Court in Nusli

Neville Wadia and Prakash Securities Pvt. Ltd.

55. In other words, the Division Bench of the Bombay 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

as has been done in the impugned judgment. That was

impermissible and of no avail, being without jurisdiction. Indeed,

that will leave the respondents with an adverse decision of the

72

learned Single Judge dismissing their writ petition No.4337 of 2012

vide judgment dated 14.08.2012, whereby the eviction order passed

by the Estate Officer dated 05.12.2011 and confirmed by the City

Civil Court on 03.04.2012 has been upheld.

56. As we have held that the Division Bench, in the facts of the

present case, could not have entertained the Letters Patent Appeal

against the judgment of the learned Single Judge, it is not

necessary for us to examine the merits of the eviction order passed

against the respondents by the Estate Officer and confirmed by the

City Civil Court and the Single Judge of the High Court. In any

case, that cannot be done in the appeal filed by the owner of the

public premises, namely, the appellant. We may, however, to

subserve the ends of justice, give liberty to the respondents to

challenge the decision of the learned Single Judge by way of

appropriate remedy, if so advised. That shall be done within six

weeks from today failing which the appellant will be free to proceed

in the matter in furtherance of the eviction order passed by the

Estate Officer and confirmed right until the High Court, in

accordance with law.

73

57. We once again clarify that we are not expressing any opinion

either way on the merits of the eviction order passed by the Estate

Officer and the order of the City Civil Court and of the learned

Single Judge of the High Court confirming the same. As the

preliminary issue regarding the maintainability of the Letters Patent

Appeal has been answered in favour of the appellant, this appeal

must succeed.

58. Accordingly, the appeal is allowed in the aforementioned

terms. As a consequence, the judgment and order passed by the

Division Bench of the High Court of Judicature at Bombay dated

12.10.2012 in Letters Patent Appeal No.181/2012 in C.W.P.

No.4337/2012 is set aside and the said Letters Patent Appeal

stands dismissed as not maintainable. No order as to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J.

(Amitava Roy)

…………………………..….J.

(A.M. Khanwilkar)

New Delhi;

February 20, 2018.