Gujarat High Court
Sizerali Mohamedali Lodhia vs Gujarat State Road Transport ... on 25 April, 2000
JUDGMENT
1. The main Special Civil Application No.1688/2000 was filed by the Gujarat State Road Transport Corporation and its Divisional Superintendent, S.T.Depot, Surat Division, Surat on 13.3.2000 challenging the order dt.6.1.2000 passed by the Assistant Judge, District Court, Surat in Appeal under S. 9 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, which will be herein-after referred to as 'the Act'. In this Special Civil Application while issuing rule and notice as to interim relief on 22.3.2000 and making the notice returnable on 12.4.2000, ex parte ad interim order was passed staying the operation of the impugned order dt.6.1.20000 passed by the Assistant Judge in Regular Civil Appeal No.89/98, i.e. in fact an appeal under Sec. 9 of the Act against the order dt. 15.12.98 passed by the competent authority in eviction Case No.1 of 1977 u/s.5 and 7 of the Act.
2. On 3.4.2000 i.e. before the returnable date the present Civil Application was filed by the original respondent praying for the following reliefs :-
"(A) Your Lordships may be pleased to recall the order dated 22.3.2000 in so far as it grants ad-interim stay of operation of the order dated 6.1.2000 passed by the learned Assistant Judge, Surat in Regular civil Appeal No.89 of 1998 OR Your Lordships may be pleased to clarify that the respondents herein are not entitled to disturb applicants possession and usage of the subject premises by virtue of the aforesaid ad interim order or otherwise;
(B) Your Lordships may be pleased to restrain the Respondents from disturbing the Applicant's possession and usage of the subject premises for the purpose of running the canteen as was being done on 31.3.2000 and prior thereto;
(C) Your lordships may be pleased to direct the Respondents to restore to the Applicants, possession of the movable properties removed from the subject premises by the officers of the Respondent Corporation on 1.4.2000;
(D) Such other and further reliefs as may be deemed just and expedient in the facts and circumstances of the case may be granted."
3. In the main Special Civil Application it is the case of the Corporation that it had invited offers to run the canteen by way of licence deed at the S.T.Bus stand, Surat in the year 1988. The present applicant had quoted the price at the relevant point of time in the year 1988 to run the said canteen at the rate of Rs.36,701/- per month. The present applicant had also applied for other accommodation nearby the Restaurant Canteen, which was also given by receiving the amount for other accommodation and the applicant was paying Rs.53,602/ The amount of licence fees was required to be increased later on and when the applicant did not pay the increased amount, notice was issued by the Corporation. The applicant approached the Civil Court and filed a Suit with a prayer to declare him as a tenant of the premises, with the further prayer that the Corporation had no right to increase the licence fees and that the applicant was not required to pay the said increased licence fees. Alongwith the said Suit, an Application for injunction was also filed. In the said proceedings, the Corporation took objection that the Civil Court had no jurisdiction and it was only the Competent Court under the Act which was entitled to decide the said dispute and further that the provisions of S. 4 of the Rent Act were not applicable. In this Suit before the Small Causes Court, the Small Causes Court passed an injunction order restraining the Corporation from disturbing the possession of the applicant without due process of law. It is given out that against that injunction order passed by the Small Causes Court, the Corporation went in Appeal before the District Court and the District Court confirmed the order, which was passed by the Small Causes Court and observed that the Corporation could initiate the proceedings under the Act. Thereupon, the Corporation initiated the proceedings against the applicant under the aforesaid Act before the Competent Authority after giving notice dt.6.10.97. The applicant, therefore, preferred an Application to initiate the contempt proceedings against the Corporation for breach of the orders, which had been passed by the trial court and the Appellate Court and pending this Application for initiation of contempt proceedings, the applicant also preferred an Application for interim stay of the eviction proceedings. On 31.3.98 the trial court passed an order staying the eviction proceedings before the competent Court under the Act. Against this order dt.31.3.98 passed by the Judge, Small Causes Court, Surat in Regular Civil Suit No.97/95, the Corporation preferred Civil Revision Application No.952/98. In this Revision Application while issuing Rule on 17.7.98 and making it returnable on 20.8.98 an ex parte ad interim order was granted in favour of the Corporation in terms of Para 10(B) i.e. the stay of the impugned order passed by the Small Causes Court and it was also ordered that no final order shall be passed by the authority under the Act in the proceedings in question pending before it and the notice as to interim relief was made returnable on 4.8.98. Thereafter, the Revision Application came up before the Court on 2.11.98 on which date it was stated on behalf of the Corporation that after this court's order dt.17.7.98, as aforesaid, the proceedings for eviction of the applicant from the disputed property had already been completed and had reached the stage where the final order was to be passed. It was further submitted by the Corporation that the arguments of the parties had been heard but the Competent Authority could not pass the order until the order dt.17.7.98 was modified by the Court. The Court, therefore, observed that it does not find any justification to continue the interim relief granted on 17.7.98 in view of the subsequent events. Liberty was granted to pass final order in accordance with law in the proceedings which had been initiated for eviction and further that the final orders passed in these proceedings be produced before the Court. The matter was posted for further consideration on 13.11.98 and ultimately the Revision Application itself was decided on 15.12.98. The Competent Authority had passed 2 orders, one was the order allowing the application to vacate the premises under S. 5(1) of the Act and the other was the order determining the leviable amount against the applicant to the tune of Rs.55,16,072/-, including the municipal taxes for the property in question which was in possession of the applicant for the year 1995 to 1999 as determined under S. 7(1). These orders were to be implemented within 7 days of the date of the service of these orders. When these orders were placed before this court in the Revision proceedings by the Corporation, a controversy was raised that the orders do not bear any date. This Court therefore ordered on 15.12.98 that the date of these orders be taken as 15.12.98 for the purpose of filing the Appeals against these orders before the Competent Court and it was also observed that the orders were appealable under S. 9 of the Act and in the result the Revision Application itself was dismissed.
4. The applicant herein then preferred an Appeal under S. 9 against the aforesaid 2 orders passed by the Competent Authority and this Appeal was registered as Regular Civil Appeal No.89/98 in the Court of Assistant Judge, Surat at Surat. This Appeal was decided by the Assistant Judge on 6.1.2000, which is the subject matter of challenge in the main petition. In the meantime, the Corporation had also moved an Application in the pending Suit before the Small Causes Court, Surat under Order 7 Rule 11(d) of C.P.C. contending that the Suit itself was required to be rejected as the Court had no jurisdiction to try the same in view of the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. An application had also been filed by the present applicant in the said Suit for taking action for committing breach of the interim order passed by the court. Both these applications were decided by a common order passed by the Small Causes Court on 24.9.99. The Application moved by the Corporation was rejected while the application, which had been moved by the present applicant, was allowed to the extent that the proceedings with regard to the breach of injunction shall continue. Aggrieved from this common order dt.24.9.99 the Corporation preferred 2 Revision Applications being Civil Revision Applications Nos.1609 and 1610 of 1999 before this Court. In these Revision Applications, the present applicant filed purshish to withdraw the Civil Suit filed by him in the Small Causes Court at Surat. It is given out that in both these Revision Applications, the Judgment was reserved. In any view of the matter, now this court is required to consider as to whether the prayers made by the applicant in the present Civil Application are to be granted or not and as to whether the ex parte ad interim order dt.22.3.2000 passed in main Special Civil Application No.1688 of 2000 is required to be recalled or modified or clarified or not. For this purpose, the applicant in the present Civil Application has made the following grievances:
(A) That the order impugned in the main petition i.e. the order dt.6.1.2000 [passed by the Assistant Judge allowing the Appeal saying that the order dt.15.12.98 passed in Eviction Case No.1/97 by the Competent Authority is quashed and set aside and clarifying that the Competent Authority was entitled to issue fresh show cause notices stating the grounds of eviction and particulars of the amount said to be falling due and the notices were to be served in accordance with Rules 4 and 7 of the Rules and that the Competent Authority can take action against the applicant for eviction and recovery of the amount said to be falling due] is in effect and essentially an order of remand before the competant authority after setting aside the order dt.15.12.98 passed by the Competent authority and nothing beyond it.
(B) Therefore, even if the operation of the said order dt.6.1.1000 was stayed by this Court by passing the order dt.22.3.2000, it did not entitle the Corporation to dispossess the applicant from the premises in question on the strength of this order and yet the Corporation had attempted to dispossess the applicant from the premsies in question and as a part of this process it took away the utensils, furnitures and other items of the applicant, which were lying in the said premises and thus the Corporation has taken an undue advantage of the stay order through wrong interpretation of this order to its own advantage. All that can be said to mean by the aforesaid order dt.22.3.2000 as passed by this court is that the remanded proceedings could not commence before the Competent Authority under the Act. Learned counsel for the applicant has submitted that by no means this order dt.22.3.2000 could mean that the order passed by the Competent Authority on 15.12.98 stood revived by stay of the operation of the order passed in Appeal on 6.1.2000, more particularly when the relief, which was prayed by the Corporation in the main petition in para 16(C) was not granted. In view of the fact that there was a stay of the order dt.15.12.98 as passed by the competent authority, by the Asstt.Judge in appeal during the pendency of the appeal, even if it is taken that the final order dt.6.1.2000 had been stayed by this Court on 22.3.2000, the interim order passed by the appellate court became operative and so also the Corporation could not proceed against the applicant so as to dispossess it from the premises in question. On this basis, the above prayers have been made in this Civil Application including the prayer that the Corporation be now restrained from disturbing the applicant's possession and usage of the subject premsies for the purposes of running the canteen as was being done on 31.3.2000 and prior thereto and that the Corporation be asked to restore to the applicant the possession of the movable properties removed from the subject premises by the officers of the Corporation on 1.4.2000.
5. To this Civil Application an affidavit in reply dt.5.4.2000 has been filed on behalf of the Corporation stating therein the history of the previous litigation, which has already been narrated hereinabove and further that the applicant was illegally occupying the premises of the Corporation since 1994-95 as he did not agree to accept the terms of the Corporation on the 6th Renewal and he continued to occupy the premises illegally without paying the due amount to the Corporation and the increased licence fees. Not only that the applicant is not paying the municipal taxes, which he is required to pay under the Agreement, the Corporation had to pay the municipal taxes for all the period and it has been further stated that a sum of Rs.55 lacs was due to be recovered from the applicant by the Corporation and further that the Corporation had invited fresh tenders and the maximum offer received by the Corporation was Rs.1,42,000/- p.m. for the canteen premises of the Corporation, which was presently occupied by the applicant, whereas the applicant was paying Rs.53,602/p.m. only and thus the Corporation is being put to huge loss.
6. At this juncture it may also be pointed out that Civil Application No.2415/2000 had also been moved by one of the bidders [claiming to be the highest bidder who quoted Rs.1,42,000/- p.m. for the aforesaid premises in question now in response to notice inviting tenders dt.6.5.1999] through Shri C.L.Soni, Advocate seeking to be impleaded as a party respondent in the main matter. That Civil Application was not granted and the same was rejected by an order passed on 11.4.2000.
7. So far as the question of taking steps to dispossess the applicant on the strength of the ex parte ad interim order passed by this court on 22.3.2000 is concerned, Mr. P.M.Thakkar has very candidly stated that ofcourse the attempt was made to dispossess the applicant but in fact the applicant has not been dispossessed inasmuch as only the items which were lying in that area had been taken away and the written intimation had been given to the applicant that he may take the custody of the goods and articles, which were removed as the same were lying at a safe place by drawing a panchanama. It has been stated that the applicant did not accept the said communication dt.1.4.2000. It has also been stated in para 8 of the reply that the applicant with the help of more than 30 to 40 persons intercepted the proceedings initiated by the Corporation in getting the premises of the canteen vacated, the applicant and his persons had threatened the officers of the Corporation with dire consequences and have committed the offence for which a criminal complaint has been filed by the Divisional Controller, S.T.Corporation, Surat on 2.4.2000. The contention raised by the applicant in the Civil Application that even if the operation of the order dt.6.1.2000 had been stayed by this Court, the interim order, which was operative during the pendency of the Appeal stood revived, has been contested and it has been submitted that such contention was misconceived. It has been stated that nothing has been done in abuse of the process of this Court and that there is no contemptuous disregard to the interim order. The contention that the applicant was a handicapped person has also been disputed and it has been submitted that the applicant appears to be a normal person doing all activities for himself. It has been submitted that the articles belonging to the applicant had ofcourse been removed from the canteen in question but the Corporation could not put the lock and seal on the premises in question because of the intervention by the applicant and his group of 35 to 40 persons. It has been further stated that at no point of time, the applicant has shown his bonafide nor had he paid any amount of arrears of dues which is more than Rs.55 lacs and, therefore, no favour can be shown towards the applicant, who was occupying the public premises at the cost of people.
8. Besides the factual aspect and history of litigation and the averments which have been made by the applicant to contest the case of the Corporation and the related grievances about the wrong interpretation and misuse of this Court's order dt.22.3.2000, the learned counsel for the applicant has raised a preliminary objection about the maintainability of this petition under Articles 226 and 227 of the Constitution of India and Mr.S.B.Vakil has vehemently submitted that the Corporation had an effective remedy of filing revision under S. 115 of the C.P.C. before the High Court against the impugned order dt.6.1.2000 and the writ petition under Articles 226 and 227 of the Constitution cannot be entertained. It was submitted that the order, which has been passed by the Assistant Judge, District Court, Surat in the proceedings under S. 9 of the Act is not an order passed by him as a persona designata but it has been passed by him as a Court and, therefore, this order was open to challenge in the Revision Application under S. 115 of the C.P.C. It was further submitted that even otherwise when the remedy of Revision is available under S. 115 of the C.P.C. as an alternative remedy, this petition cannot be entertained and the petition itself deserves to be dismissed on this ground alone.
9. Whereas this objection raised by the learned counsel for the applicant goes to the root of the matter, this Court proposes to decide this preliminary objection before dealing with the Civil Application on merits. It may also be mentioned that looking to the span of the argument and the length at which the arguments were advanced on behalf of both the sides while arguing this Civil Application, I called upon the learned counsel for both the sides more than once that subject to the consent of both the sides the entire petition may be taken up for final decision. While Mr.Thakkar for the Corporation was ready to go ahead for final hearing, Mr.S.B.Vakil for the applicant submitted that he has yet to file para-wise reply of the main petition and at present he simply seeks the order on his Civil Application, which has come up before the Court and was not prepared to go ahead with the final hearing. In this view of the matter, it is not possible to go ahead with the final hearing of the case and while considering the civil application only, I first take up the question with regard to the maintainability of the present Special Civil Application.
10. According to S. 9 Appeal lies from every order of the competent officer made in respect of any public premises under Section 5 or Section 7 to an appellate officer. The Section further says that the appellate officer shall be the District Judge of the District in which the public premises are situate or such other judicial officer in that district who has for at least 10 years held a judicial office in the State as the District Judge may designate in that behalf. Thus there is no doubt that the Appellate Officer in such Appeals has to be the concerned District Judge or such other judicial officer in the District, who has held a judicial office for a period of 10 years in the State and who may be designated by the District Judge. On these premises, even if it is taken that the appellate officer is not a persona designata, but a court, the question arises as to whether the order passed in these proceedings by the appellate officer, may be District Judge or such Judicial Officer as mentioned hereinabove in the proceedings of Appeal under S. 9 is such a court against whose order a Revision Application under S. 115 of the C.P.C. lies? Even if it is held that such a Revision Application lies, can it be said that the remedy of revision under S. 115 of the C.P.C. in such cases is an equally efficacious alternative remedy as to throw away the petition under Art. 226/227 on this ground alone and the petition under Art. 226/227 should not be entertained.
Dt:02/05/2000:
11. In support of the submission that revision lies against the impugned order and, therefore, writ petition is not maintainable, the learned counsel for the applicant has cited following decisions:-
(i) (1996) 3 SCC 300 (Durga Prasad v. Naveen Chandra and ors.)
(ii) (1999)1 SCC 209 ( Sheela Devi v. Jaspal Singh)
(iii) AIR 1963 M.P.218 (Kailaschandra and ors. v. District Judge, Bhopal and ors.)
(iv) (1991) 2 SCC 637 (Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals Pvt.Ltd. and ors.)
(v) AIR 1978 SC 1 (Thakur Das v. State of M.P. and anr.)
(vi) (1995)5 SCC 5 at page 30 (Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker)
(vii) 1983 MP 39 at page 40 para 4 (Ayodhya Prasad v. Union of India)
(viii) 1944 BLR 711 (Vinayak Pandurangrao v. Sheshadasacharya Ramacharya)
(ix) AIR 1977 SC 1555 (Chhagan Lal v. The Municipal Corporation, Indore).
The case of Durga Prasad v. Naveen Chandra and Ors., (1996) 3 SCC 300 was a case in which a suit had been filed for specific performance, the evidence of the appellant was closed on 12th March 1991 and thereafter the defendant's evidence was directed to be recorded on 20th March 1991 and even thereafter the matter was adjourned from time to time till 11th January 1994. Even on this date, i.e. 11th January 1994, the respondent sought adjournment. The application for adjournment was rejected and after hearing the arguments, the judgment was reserved and was pronounced on 14th January 1994. The respondent then filed an application on 27th January 1994 to set aside the decree under Order 9 Rule 13 of the CPC and similar application was filed by other respondent. During the pendency of this application, the appellant moved an application objecting to the maintainability of the application and to hear it as a preliminary point. That application of the appellant was dismissed by the trial Court on 7th October 1995 and against this order, the appellant namely, Durga Prasad filed writ petition under Article 226 of the Constitution and it is this writ petition which was dismissed by the order dated 21st December 1995 against which the matter came up before the Supreme Court by special leave. In view of these facts, the Supreme Court held that the impugned order was not appealable either under Section 96 or under Order 43 Rule 1 read with Section 104 of CPC, but still a revision was maintainable and that the procedure prescribed under CPC could not be bypassed by availing the remedy under Article 226. It is, therefore, clear that it was a case in which the order was passed in the regular civil proceedings under CPC and therefore, the revision was found to be maintainable and there is no question of entertaining the petition under Article 226 of the Constitution of India. In the case before us, there is no order passed in any regular civil suit or a regular appeal under CPC. The order has been passed by the appellate authority under the Act. Merely because such appellate authority happenes to be the District Judge or an Assistant Judge designated by him does not make it an order passed in regular civil proceeings under CPC. Learned Counsel for the applicant has submitted that this is a distinction without any difference, but this submission is not worth accepting for the simple reason that the orders which are passed in the proceedings arising under a special enactment and are passed by an appellate authority under such special enactment may be at par with a Court or as a Court and not as persona designata, cannot be treated at par with the orders passed by the Civil Court in regular civil proceedings. In the opinion of this Court, this decision is of no avail to the applicant so as to sustain the preliminary objection.
In the case of Sheela Devi v. Jaspal Singh, reported in 1999(1) SCC 209, the statutory remedy of revision was provided under Section 18 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 itself. Such a statutory remedy was not availed and straightaway the writ petition was filed. The Supreme Court, therefore, observed that the High Court should not have entertained the writ petition and the respondent was left with the liberty to avail the alternative remedy of revision under the Act. This decision is, therefore, clearly distinguishable.
In the case of Kailashchandra and ors. v. District Judge, Bhopal and ors. reported in AIR 1963 M.P. 218, the Division Bench of the M.P.High Court was concerned with an order passed in appeal under Section 12 of the M.P.Accommodation Control Act, 1955. The wording of Section 12 under the aforesaid Act provided that an appeal lies to the Court of the District Judge and not to the District Judge and, therefore, it was held that the revision lies under Section 115 of CPC. In Section 9 of the Act which is under consideration before this Court, the appellate officer is the District Judge or other judicial officer in that District designated by the District Judge. Thus, the words, "Court of the District Judge" are not there as was the case before the M.P.High Court where the appeal was provided to the Court of District Judge under Section 12 of the M.P.Accommodation Control Act, 1955. This case is also, therefore, clearly distinguishable. The decision was also considered in the case of Anandrao Laxmanrao Mandloi v. Board of Revenue, by a Full Bench of Madhya Pradesh High Court reported in AIR 1965 M.P. 237. The Full Bench considered a case under M.B. Abolition of Jagirs Act, and per Hon'ble Newaskar and Krishnan, JJ (Dixit, C.J. dissenting), it was held as under:-
"Under S. 28 an appeal lies from a Tehsildar's decision under S.23, to the Collector. S.28 provides that his decision in appeal shall be final. The question as to the exact significance of the term, 'final' in this context is generally accepted to mean that there shall be no further appeal but that does not exclude competency of a revision petition if such power is conferred by the statute under which the Courts in question are constituted. Such revision would not lie if there are express words in the statute barring the revision."
The decision in the case of Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals Pvt. Ltd. and ors. reported in (1991) 2 SCC 637, is an authority for the purpose that when an special statute confers jurisdiction on District Judge, the District Judge is not a persona designate but a Court of ordinary civil jurisdiction to which the Rules of procedure, order, decree etc. under the CPC would apply.
The case of Thakur Das v. State of M.P. and anr. reported in AIR 1978 SC 1 was a case in which the Supreme Court considered the question as to whether an order passed by the Sessions Judge as appellate authority under Section 6(C) of the Essential was amenable to revisional jurisdiction of the High Court under Section 435 of the Cr.PC or not and it was held that the revision application would lie to the High Court and the High Court will be entitled to entertain a revision application under Sections 435 and 439 of the Cr.PC. There was no question involved with regard to the maintainability of a writ petition or with regard to entertaining a writ petition under Article 226. What was considered by the Supreme Court was as to whether the judicial authority constituted by the State Government under Section 6(C) of the Act to hear appeals against the order of confiscation that may be made by the licencing authority under Section 6(A) 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 Cr.PC. In the end of para 10 of this judgment, the Supreme Court has referred to the views expressed by the Full Bench of the A.P. High Court in the case of Public Prosecutor (A.P.) v. S. Ramaiah reported in 1975 Cr.LJ 144 to the following effect:
"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."
The Supreme Court has observed that it was in broad agreement with the aforesaid conclusion. However, this analogy cannot be extended for the purpose of sustaining the applicant's objection in the present case. Unlike the provisions of the Essential Commodities Act and the proceedings of appeal before the Sessions Judge arising out of such proceedings, in the case before us, the legislature has clearly attached finality to the orders passed by the appellate authority under Section 9. Section 10 is reproduced as under for ready reference:
"10. Finality of order.-- Save as otherwise expressly provided in this Act, every order made by a competent 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."
That it may not be necessary to mention whether such orders are final or not as all the incidents of exercising jurisdiction as a Court would necessarily follow is one thing but in a case where it has been specifically mentioned by the legislature that the orders passed by the appellate authority under Section 9 shall be final, makes the legislative intent very clear that the order passed in appeal was final and, therefore, on the analogy of the aforesaid view which was taken by the Supreme Court for the purpose of holding the revision under Cr.PC to be maintainable with reference to the provisions of the Essential Commodities Act cannot be extended for the purpose of holding that revision would lie to the High Court under Section 115 of CPC against an order made by the District Judge as an appellate authority as appellate officer under Section 9 of the Act particularly in view of the provisions contained in Section 10 of the Act whereby the legislature has attached finality to such orders and the entire scheme of the Act shows that it is a complete code. The expression that all the incidents of exercising jurisdiction as a Court would necessarily follow would not mean and include such cases in which the legislature by a positive provision in the enactment has attached finality. In an enactment when no finality is attached to an order and an order is passed by a judicial officer exercising jurisdiction as a Court and such Court is inferior in the hierarchy under the Cr.PC and if the revision is held to be maintainable would not apply in the cases where finality has been attached under the provisions of the Act itself. In the opinion of this Court, this decision is also clearly distinguishable and cannot be taken as an authority to hold that even the orders passed by the appellate officer, i.e. District Judge under Section 9 of the Act would be amenable to the revision under Section 115 of CPC despite the finality attached to such orders under Section 10 of the Act. Once an enactment says that an order passed by the Court is final, such order passed by an appellate authority (may be a judicial officer as a Court) under a special enactment can not still be subjected to revision under Section 115 of CPC. Moreover, I find that in this case, the trial itself was under Cr.PC for the offence under the Essential Commodities Act and hence the analogy is not at all apt.
The case of Mukri Gopalan v. Cheppilat Puthanpurayil Abbobacker, reported in (1995) 5 SCC 30, is again an authority for the purpose that the District Judge appointed as appellate authority under the provisions of the Statute, constitute a class and cannot be regarded as persona designata.
In the case of Ayodhya Prasad v. Union of India, reported in AIR 1983 M.P. 39, a Single Bench of the M.P. High Court has, while dealing with the case under the Public Premises (Eviction of Unauthorised Occupants) Act, has taken the view that finality to the order by District Judge under Section 10 means that no further appeal lies and the orders cannot be challenged in collateral proceedings, i.e. by way of original suit or application that is, in separate proceedings, but the Section does not exclude the further remedy of revision provided under Section 115 of CPC against the order of the court subordinate to the High Court and the court of District Judge being a court inferior to the High Court, revision would lie against the order of the District Judge in appeal under Section 9.
In the case of Vinayak Pandurangrao v. Sheshadasacharya Ramacharya, reported in 1944 BLR 711, a Division Bench of the Bombay High Court has, while dealing with the case under the Bombay Agricultural Debtors Relief Act, has taken the view that the words, "shall be final" in Section 37 of the Act do not exclude the revisional jurisdiction of the High Court. An application in revision under Section 115 of CPC lies to the High Court against an order passed by a court under Section 37 of the Bombay Agricultural Debtors Relief Act, 1939, transferring execution proceedings pending before it to the Debt Adjustment Board constituted under the Act. It was a case in which the order had been passed by the 'Court' and not by an appellate authority, i.e. a Judicial officer acting as Court.
Chhagan Lal v. The Municipal Corporation, Indore, reported in AIR 1977 SC 1555 was a case in which the Supreme Court considered a contention that under Section 149 of the M.P. Municipal Corporation Act, 1956, appeal was provided against the decision of the Municipal Commissioner to the District court when any dispute arises as to the liability of any land or building to assessment. Sub-section (1) of Section 149 provides that the decision of the District court shall be final. It was submitted that the decision of the District court was, therefore, final and that the High Court was in error in entertaining the revision petition. The Supreme Court expressed the view that this plea cannot be accepted for, under Section 115 of CPC, the High Court has got power to revise the order passed by the courts subordinate to it. In the case before us, appeal is not to the District Court as such, but Distt. Judge has been made the appellate authority and hence this case is clearly distinguishable.
12. Learned counsel for the respondents - original petitioners has made submissions with regard to Sections 9, 10 and 16 of the Act and has relied upon-
(i) AIR 1987 SC 203 (Aundal Ammal v. Sadasivan Pillai)
(ii) AIR 1966 M.P. 7 (Hargovind Sharma v. Divisional Engineer, Rlyl. Admn., South Eastern Railway, Bilaspur and anr.)
(iii) 1967 I.L.R.(Bombay) 671 (Union of India v. V.D.Tulzapurkar)
(iv) AIR 1958 SC 86 (State of U.P. v. Mohammad Nooh)
(v) 1986(2)GLR 1410 (Kapadwanj Nagarpalika v. Bharat Petroleum Corporation Ltd.)
(vi) 1997(1) GLR 177 (Competent Authority, G.H.B. v. D.V. Mehta) The case of Aundal Ammal v. Sadasivan Pillai AIR 1987 SC 203, was a case before the Supreme Court with regard to the Kerala Buildings (Lease and Rent Control) Act, 1965. The Supreme Court observed that according to the scheme of the Act, the landlord who wants eviction of his tenant has to move for eviction and the case has to be disposed by the Rent Control Court as provided by sub-section (2) of Section 11 of the Act. From the Rent Control Court, an appeal lies to the appellate authority under the conditions laid down under sub-section (1)(b) of Section 18 of the Act. From the appellate authority, a revision in certain circumstances lies in case where the appellate authority is a subordinate Judge to the District Court and in other cases to the High Court. The Supreme Court has held that where the District Judge has passed an order in revision under Section 20 of the Act, a second revision to the High Court under Section 115 of CPC against such an order is not maintainable.
In the case of Hargovind Sharma v. Divisional Engineer, Rly. Admn., South Eastern Railway, Bilaspur and anr. reported in AIR 1966 M.P. 7, a Single Bengh of the M.P. High Court, while dealing with the case under the Public Premises (Eviction of Unauthorised Occupants) Act, has held that an appeal lies to the District Judge as a persona designata and not to a court of District Judge as is clear from the language of Sections 9 and 10. The decision of the District Judge does not give rise to a revision application under Section 115 of CPC. By enacting that the order of the appellate officer shall not be called in question in any original suit, applications and execution proceedings, Section 10 of the Act provides a very wide prohibition. The word 'application' is wide enough to cover an application made under Section 115 of CPC.
In the case of Union of India v. V.D.Tulzapurkar, reported in 1967 I.L.R. (Bombay) 671, a Division Bench of the Bombay High Court was concerned with a matter arising out of the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 and the main question under consideration was as to whether pthe Estate Officer had acted in his own cause while passing the order of eviction because the Estate Manager was appointed by the Government under Section 3(a) of the Act. A contention was also raised in this case before the Court that the petition under Articles 226/227 of the Constitution arising out of the appellate judgment and order dated 27th September 1963 delivered by the Principal Judge of the City Civil Court, Bombay setting aside the order of eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 should not be entertained by the High Court, because there was equally efficacious remedy in the hands of the State Government and that the provisions of the Act did not take away the remedy of the suit for eviction and the Central Government had a right to approach the Civil Court for evicting the respondent from the room in question. The Court repelled this contention and said that there was no substance in it. Reference weas made to the provisions of Section 10 of the Act and it was also observed that the summary remedy available to the Central Government for eviction of the respondent under the Act would for all purposes be lost to the Central Government if no relief is granted in favour of the petitioner. It was held in no uncertain terms that in fact the Central Government had no alternative remedy against the appellate order passed by the Principal Judge and the only remedy was to approach the Court in the manner in which it had been done.
In the case of State of U.P. v. Mohammad Nooh, reported in AIR 1958 SC 1986, it has been observed in para 11 at page 94 after considering several authorities as under: "....If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above, it has the power to do so and may and should exercise it."
In the case of Kapadwanj Nagarpalika v. Bharat Petroleum Corporation Ltd., reported in 1986(2) GLR 1410 before our own High Court, a contention was taken that the petition under Articles 226/227 of the Constitution of India would not lie against the order of the District Judge passed in appeal under the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, and in para 7, the Court has observed that, this argument as mentioned was only for being rejected without any elaboration because, no provision is brought to the notice of the Court under which it could be said that the Constitutional power of this Court under the said Article is in any way abridged.
The case of the Competent Authority, G.H.B. v. D.V. Mehta, reported in 1997(1) GLR 177, decided by our own High Court only shows that the writ petitions filed by the Competent Authority of G.H.B. against the order of the District Judge quashing the order of eviction under the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972 were entertained and allowed. However, it may be observed that in this case, no contention was taken or considered about the maintainability of the writ petitions or that the revision lies under Section 115 of CPC against such order passed by the District Judge in appeal under the Act.
13. While arguing in rejoinder, learned Counsel for the applicant has cited the following decisions:-
(i) 1980(2) GLR 181 (Union of India v. Sahakari Khand Udyog Mandli Ltd.)
(ii) 1995 Supp (2) SCC 717 ( Mahanadi Coalfields Ltd. v. Orient Paper & Industries Ltd.)
(iii) AIR 1997 SC 993 ( State of M.P. v. M/s.M.V.Vyavsaya & Co.)
(iv) (1997)5 SCC 772 (Kanoria Chemicals and Industries Ltd. v. U.P.State Electricity Board)
(v) AIR 1992 SC 1439 (M/s.Shree Chamundi Mopeds Ltd. v. Church of S.I.T.Assocn.)
(vi) AIR 1989 SC 2097 (Krishna Ram Mahale v. Shobha Vankat Rao) The Union of India v. Sahakari Khand Udyog Mandli Ltd. reported in 1980(2) GLR 181, was a case in which a Division Bench of our own High Court also considered the effect of an interim order when the writ petitions were withdrawn after obtaining the interim order. The Court obseved that it was only on account of the interim order made by the High Court that the respondents released the unauthorised excess realisation. Having taken into account the benefit of the terms of the interim orders made by the Court, they withdrew the petitions. The withdrawal of the petitions meant that they lost the cause. Every order made by the Court must ultimately abide by the final order which the Court makes in those proceedings. Since the petitions were withdrawn by the respondents, they stood dismissed. It, therefore, means that the interim orders which were made therein not only came to be vacated but it also means that if the respondents had derived any monetary benefit only on account of the interim order of the High Court, they must make it good to one who is entitled to claim it. Therefore, even though the Levy Sugar Price Equalisation Fund Act, 1976, holds the field, even if that Act was not there, the High Court would have exercised its inherent jurisdiction to undo the wrong which was done to the society by the interim order which the Court made and under which the court stayed the implementation of the controlled price of levy sugar. Such an inherent power is indeed found in Sec. 151 of the Civil Procedure Code. So far as the High Courts are concerned, even apart from Sec. 151 of the Civil Procedure Code, the High Courts have inherent jurisdiction to do all things which are necessary to be done for the purpose of administering justice and working out the rights of the parties. This decision has been cited in support of the submission that whatever action has been taken by the Corporation on the basis of the interim order passed by this Court must be undone because the Corporation has taken the actions on wrong interpretation of the order passed by this Court.
In the case of Mahanadi Coalfields Ltd. v. Orient Paper & Industries Ltd. reported in 1995 Supp. (2) SCC 717, the Supreme Court while considering the purpose and object of an interlocutory order, has held as under:
"While the purpose of an interlocutory order is to preserve in status quo the rights of the parties during the pendency of the litigation, the Court is also required to put into the scales the need to protect the interest of the respondent before it if the writ petitions ultimately fail and uncertainty as to their results is resolved in such respondent's favour. If the dispensation ordered by the High Court prevails, the respondent before it, even in the event of its success, would be faced with a fait accompli and it would well nigh be impossible for that respondent to gather the dues from the unnumerable purchasers of coal. The interim orders passed by the High Court do not protect his interests adequately if the final result goes in his favour. Accordingly, the order under appeal is set aside."
In the case of State of M.P. v. M/s. Vyavsaya & Co., reported in AIR 1997 SC 993, the Supreme Court has held that it is the duty of the Court to try to repair the damage to the extent possible. Therefore, in order to recover the huge arrears from the licensee firm, the High Court directed to initiate appropriate proceedings for enforcing the 'undertaking' given by the licensee firm to the High Court to the effect that 'all financial commitments to which he may ultimately be found liable would be met by him.
In the case of Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board, reported in (1997) 5 SCC 772, the Supreme Court has held that the stay of the operation of the order or notification only means the order or notification which has been stayed would not be operative from the date of passing of the stay order and it does not mean that the order or notification has been wiped out from existence. An order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the Court in such a case to put the parties in the same position they would have been put for the interim orders of the Court.
In the case of M/s.Shree Chamundi Mopeds Ltd. v. Church of S.I.T. Association, reported in AIR 1992 SC 1439, the Supreme Court has also observed the fact of a stay order passed by the Court and it has been observed that in case of an order staying the operation of the order under challenge, the existence of the order under challenge is not wiped out and the proceedings that have been terminated by passing of the order under challenge do not get restored. In this case, the Supreme Court was considering a case under the Sick Industrial Companies (Special Provisions) Act, and it was found that suspension of proceedings against the sick Companies does not include the eviction proceedings under Section 22.
Krishna Ram Mahale v. Shobha Vankat Rao, reported in AIR 1989 SC 2097 was a case of unlawful dispossession of the licensee by the licensor before expiry of the period of licence and it was held that the licensee was entitled to decree for recovery of possession since she was unlawfully dispossessed, it could not be said that the licence having expired long back and the plaintiff not being entitled to renewal of licence could only ask for damages for unlawful possession.
14. So far as the question that the writ is no maintainable because the revision lies under S. 115 of C.P.C. is concerned, having gone through the aforesaid decisions, I find it discernible that it is not a case in which an order has been passed in any civil proceedings filed in a civil case. The order has been passed in the instant case by the concerned Judge as he has been clothed with such powers under the provisions of the Act itself. Even if it is held to be an order of the court, without going into the controversy as to whether the order has been passed by him as a persona designata or not, the fact remains that it has been passed in exercise of statutory powers under the special enactment for the purpose of the enforcement of the object of the Act and it is certainly not an order passed in any Appeal in regular civil proceedings. There are number of such Acts in which the powers have been conferred upon the concerned District Judges to pass orders in Appeal in case the appeal against the order of any authority under the Act is provided before District Judge as appellate authority. That by itself will not make it an order so as to be revisable under S. 115 of the C.P.C. Much stress was laid by the learned counsel for the applicant on the authority of AIR 1989 SC 2097 (Krishna Ram Mahale v. Shobha Vankat Rao) (Supra). However, I find that, that was a case in which the order had been passed by the Civil Court in regular civil proceedings and not an order under any Act. Every order which is passed in case of such statutory appeals by the appellate authority may be Distt. Judge as a court, to which the impugned order passed under the Act is made appealable, cannot be treated at par with the orders passed in civil proceedings so as to make them revisable under S. 115 of the C.P.C. Learned counsel for the applicant has submitted that it is a distinction without any difference and the learned counsel for the applicant has argued with confidence, courage and conviction that the revision is maintainable under S. 115 of the C.P.C. and, therefore, this petition is not maintainable and should be rejected on this ground alone. In view of the Scheme of the Act under consideration and in view of the fact that our own Court itself has entertained such petitions in large number of cases including the question as to whether writ petition should be entertained or not, this Court has held that the petitions are maintainable and they cannot be thrown on the objection of the order being revisable. I also find that in such cases, the revision as such may not be equally efficacious and alternative remedy. One more consideration which prevails is that in such cases, when different orders are passed by the District Courts as an appellate authority under the provisions of the Act and in such cases if it is held that the revision lies under S. 115 of the C.P.C., merely because the order is passed by the appellate authority - Distt.Judge as a court and not as a persona designata, it will over burden the court with flood of civil litigations under S. 115 of the C.P.C. which will not be even otherwise conducive and expedient for the purpose of deciding such controversies by way of revision. In cases of this nature, when orders are passed by the appellate authority under the provisions of the Act, the writ petition before this court cannot be thrown out on such grounds. The Constitutional remedy under Art. 226/227 is equitable and discretionary jurisdiction which may be invoked only in appropriate cases. I am of the considered opinion that the revision petition under S. 115 of the C.P.C. does not lie in such cases i.e. cases of present nature arising under a special enactment (with finality given by the positive mandate of legislature) against the orders passed by the appellate authority - may be Distt. Judge acting as a Court.
15. Assuming for the sake of argument that the revision lies, I find that in such cases, revision cannot be said to be an efficacious adequate and alternative remedy so as to throw out the petitions under Article 226 and/or 227 of the Constitution of India by this Court. Not entertaining the petitions on the ground of availability of any alternative remedy is only a self imposed discipline by the Court and the principles are well settled in this regard that there is no constitutional impediment to entertain such petitions. Therefore, I do not feel inclined to throw away the petition in the facts of the present case on the ground of preliminary objection as has been raised by the applicant and this preliminary objection fails.
16. Learned counsel for the applicant has then submitted that the order of this court i.e. stay of the operation of the impugned order was misconstrued, misinterpreted and was abused by the Corporation against the rights and interest of the applicant and in the grab of this order, the applicant was sought to be dispossessed and, therefore, the factual position, as was obtaining prior to the passing of the stay order by this court, must be restored as the stay of the operation of the impugned order neither revived the order of the competent authority nor it could be used by the Corporation so as to dispossess the applicant because the stay order of this Court did not have the effect of wiping out the order impugned in the main petition.
17. On these premises, it has also been argued that the respondents are not entitled to disturb the applicant's possession and usage of the subject premises by virtue of the aforesaid ad interim order or otherwise and that the respondents be restrained from disturbing the applicant's possession and usage of the subject premises for the purpose of running canteen as was being done on 31.3.2000 and prior thereto and that the respondents be directed to restore to the applicant the possession of movable properties removed from the subject premises by the officers of the Respondent Corporation on 1.4.2000. While dealing with this aspect, it may be made clear that Mr. P.M.Thakkar appearing on behalf of the Corporation had made it clear that no lock and seal had been put over the premises and that the physical possession could not be taken on the day and that the articles, which had been removed by the Corporation, are concerned, the Corporation is prepared to return those articles to the applicant. It was also stated by Mr. Thakkar that the Corporation, which is a public body, was being put to heavy losses as the applicant failed to pay the outstanding to the tune of Rs.55 lacs, as stated above, and further that when the tender notices were invited afresh, the parties have quoted upto Rs.1,42,000/- p.m. as the licence fees per month for running the canteen whereas the applicant, even at this point of time, is paying only Rs.55,242/- per month. It is submitted that the Corporation is being put to a loss of about Rs.87,000/- per month and there is no question of granting permission to the applicant for the usage of these premises at the rate at which he has been paying so far. Mr. P.M.Thakkar has made a very candid statement before this court that in case the applicant is prepared to pay the licence fees of Rs.1,42,000/- per month, the Corporation may still permit the applicant to make use of these premises, although tenders had been invited whereat the Corporation had received offers upto Rs.1,42,000/- from other parties, who participated in that proceedings.
18. In the main petition, rule has already been issued and the controversies, as have been raised on merits, shall be decided in the main petition. At this stage, when it is the case of the Corporation that the licence of the applicant had come to an end in the year 1994 and there were heavy outstanding to the tune of Rs.55 lacs and that there are other parties, who are ready and willing to pay the licence fees of Rs.1,42,000/- to the Corporation, I do not find it to be a fit case to order the restoration ante as was obtaining prior to the passing of the ex parte order by this court staying the operation of the impugned order. If the Corporation has committed any mistake in interpreting the stay order of this Court and has taken away the articles from the canteen, which was being run by the applicant, the Corporation is ready to return the same to the applicant. Hence there is no question of restoration at this stage or granting permission to the applicant by this court with regard to the usage of the premises as was being done prior to 31.3.2000 as prayed for in this Application and that will depend upon the final decision of the main petition. Looking to the entirety of the matter, in the facts of this case, subject to the final order, which may be passed in the main petition, I do not find any reason to recall or vacate the stay order which was granted by this Court or to grant any of the prayers made in this Civil Application, but it is made clear that in case the applicant is ready and willing to pay the licence fees at the rate of Rs.1,42,000/- per month to the Corporation and should they approach the Corporation with a request and letter of willingness that he is prepared to pay Rs.1,42,000/- per month as the licence fees to the Corporation, the Corporation would think over such offer as per the candid statement made by Mr.P.M.Thakkar during the course of arguments.
19. With the observations, as aforesaid, this Civil Application is hereby dismissed. Rule is hereby discharged. No order as to costs.