LIFE INSURANCE CORPORATION OF INDIA v. NANDINI J. SHAH & ORS.

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A 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.

37Copy pinpoint37. Indeed, the Delhi High Court could not have noticed the B 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 C (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 (Lease and Rent Control) Act refers to such officers and authorities not below D 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. E

38Copy pinpoint38. 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 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 H

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a member of a class, or as filling a particular character. That view has A been reiterated even in Mukri Gopalan (supra).

39Copy pinpoint39. 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 B 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 C 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 Section 7 of the City Civil Courts Act and Sections 3, 5 & 7 of the Maharashtra Civil Courts Act. D 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.

40Copy pinpoint40. 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 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. H

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A 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 B 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.

41Copy pinpoint41. 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 D have no hesitation in holding that the remedy of appeal under Section 9 before the Appellate Officer is not as a 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 E 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 F 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.

42Copy pinpoint42. 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 Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1961, acts as a Court or as a H

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persona designata? The decision in Virindar Kumar Satyawadi Vs. A 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 B 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 quasi-judicial 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, C 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 District D 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 E 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.

43Copy pinpoint43. 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 arises as to whether the order passed by the appellate officer under Section 9 of the Gujarat Public Premises 40 AIR 1956 SC 153 H

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A 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 B 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.

44Copy pinpoint44. 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 D 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 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.

45Copy pinpoint45. 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.

46Copy pinpoint46. In the Case of Jinda Ram (supra), the Division Bench of the Madhya Pradesh High Court was called upon to consider the H 41 (1987 Allahabad Law Journal 179)

LIC OF INDIA v. NANDINI J. SHAH & ORS. 327 [A. M. KHANWILKAR, J.]

maintainability of revision application under Section 115 of Civil Procedure A 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 B 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. C 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 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.

47Copy pinpoint47. 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 G

48Copy pinpoint48. Even though the respondents have invited our attention to other decisions of High Courts and also of Supreme Court which have 42 (1996) 2 SCC 132 43 ILR (1924) 47 Mad 369 H

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A 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 B referred to in Section 9 of the 1971 Act, is not a persona designata but acts as a civil court.

49Copy pinpoint49. 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 C 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 D of such jurisdiction.

50Copy pinpoint50. 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 E 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 F 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 G 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 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 H

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the reported decision, the Court adverting to its earlier decision observed A 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 B 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.

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 G 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. H

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A 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. B 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)

51Copy pinpoint51. In the case of Radhey Shyam (supra) decided by a three- Judge 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 D 226 and Article 32. The dictum in paragraphs 25, 27 and 29 of this decision is instructive. The same read thus: “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

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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. C

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; D 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) E

52Copy pinpoint52. 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: F

“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 G 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 H

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A 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 B 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 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.” E 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).”

53Copy pinpoint53. 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

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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 against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable.

54Copy pinpoint54. In the impugned judgment, the Division Bench merely went by the decisions of the Delhi High Court and its own Court in Nusli B 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.

55Copy pinpoint55. 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 learned Single Judge dismissing their writ petition No.4337 E 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.

56Copy pinpoint56. 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. H

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57Copy pinpoint57. 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. B

58Copy pinpoint58. 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 C order as to costs.

Kalpana K. Tripathy Appeal allowed.