Madhya Pradesh High Court
Jinda Ram vs Union Of India (Uoi) on 19 March, 1999
Equivalent citations: 1999(2)MPLJ221, 1999 A I H C 3470, (1999) 2 MPLJ 221 (1999) 2 RENCR 353, (1999) 2 RENCR 353
Author: A.K. Mathur
Bench: A.K. Mathur, Dipak Misra
ORDER A.K. Mathur, C.J.
1. This case has come up on account of the reference made by the learned Single Judge (Hon. S. P. Khare, J.) for decision by a larger Bench because of the conflicting decisions of the Single Bench of this Court. The question of law formulated by the learned Single Judge for answer by this Court reads as under :
"Whether a revision under Section 115, Civil Procedure Code lies against the order of the appellate officer under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971?
2. The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short the 'Act of 1971') was enacted for eviction of unauthorised occupants from public premises. The 'public premises' has been defined in Section 2(e) which reads as under :
"(e) 'public premises' means :-
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980, under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of, -
(i) any company as defined in Section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty one per cent of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first mentioned company,
(ii) any corporation (not being a company as defined in Section 3 of the Companies Act, 1956 (1 of 1956), or a local authority) established by or under a Central Act and owned or controlled by the Central Government,
(iii) any University established or incorporated by any Central Act,
(iv) any institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961),
(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963),
(vi) the Bhakra Management Board constituted under Section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966), and that Board as and when renamed as the Bhakra-Beas Management Board under sub-section (6) of Section 80 of that Act; and (3) in relation to the Union territory of Delhi, -
(i) any premises belonging to the Municipal Corporation of Delhi, or any municipal committee or notified area committee, and
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority."
"Unauthorised occupation" has been defined in Section 2(g) of the Act of 1971 which reads as under :
"(g) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever."
Section 3 of the Act of 1971 deals with appointment of Estate Officers to initiate action under the Act of 1971. Sections 4 to 7 of the Act of 1971 deal with the procedure for eviction of such unauthorised occupants. Section 8 deals with the powers of Estate Officers. Section 8 of the Act of 1971 reads as under:
"8. Powers 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 discovery and production of documents;
(c) any other matter which may be prescribed."
Section 9 of the Act of 1971 deals with appeals. Section 9 reads as under :
"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, -
(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 presidency-town 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 the district judge of the district."
Section 10 of the Act of 1971 which attaches finality with the orders, reads as under :
"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."
3. In the scheme of the Act of 1971, question has to be decided whether after the order is passed by the Estate Officer, appeal lies to District Judge and after disposal of appeal, whether any further remedy of revision under Section 115 Code of Civil Procedure, 1908 is available or a writ under Article 226/227 Constitution of India is the only remedy. This question first came up before this Court whether a revision under Section 115, Civil Procedure Code lies or not; and in that connection, in the case of Hargovind Sharma v. South Eastern Railway and Anr., 1965 MPLJ 415 = AIR 1966 MP 7, it was held by learned single Judge that no revision under Section 115, Civil Procedure Code lies before the High Court. Subsequently, in another decision of this Court in the case of Ayodhya Prasad v. Union of India and Anr., 1983 MPLJ 18 = AIR 1983 MP 39, learned Single Judge Hon. C.P. Sen, J. (as he then was) held that a revision under Section 115, Civil Procedure Code is maintainable as the Court of District Judge is a Court subordinate to the High Court. These two conflicting judgments came up before Justice S. C. Pandey in Civil Revision No. 1557 of 1996, Arjunlal Agrawal v. Union of India and the learned single Judge, after elaborately dealing with the matter on the subject, concluded that no revision lies against the order of the District Judge. Therefore, Justice S.P. Khare has referred the matter to a larger Bench for authoritative decision in the matter.
4. It appears that the Division Bench judgment of this Court was not brought to the notice of Justice S. C. Pandey. In the said case, the Division Bench of this Court has endorsed that the decision given by Justice C. P. Sen in the case of Ayodhya Prasad (supra). In M.P. No. 3070 of 1985, Atidayal v. Union of India and Anr., the Division Bench of this Court by order dated 9-11-1989 observed:
"3. This court in Ayodhya Prasad v. Union of India, 1983 MPLJ 18, has taken a view that such appellate orders passed by the appellate authority under the Public Premises (Eviction of unauthorised Occupants) Act are revisable by this Court. We are in agreement with the view so taken. These petitions can, therefore, be dismissed on this short ground alone."
However, as the matter has been referred by the learned single Judge for answer by larger Bench, therefore, we will dilate further on the subject.
It is an admitted fact that after the judgment is given by the Estate Officer, the same has been made appealable under Section 9 of the Act of 1971 before the District Judge. The District Judge is nothing but a court subordinate to High Court and, therefore, any order against which appeal is not provided, remedy under Section 115, Civil Procedure Code is available to the affected parties. Much emphasis has been made on the construction of Section 10 of the Act of 1971 on account of the word 'finality' used therein that every order passed under this Act of 1971, save as otherwise provided in 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.
5. If we examine Section 10 of the Act of 1971 very closely, it means that any order passed under this Act shall acquire a finality qua any other proceedings of co-ordinating courts meaning thereby that any order passed under this Act cannot be made subject matter of any original suit, application or in execution proceedings and no injunction can be granted by any court or authority in respect of any action taken or to be taken under this Act. The idea is that the order passed by the District Judge qua this Act of 1971 shall acquire finality and no other civil court will have the jurisdiction to interfere with the order passed by the District Judge. In the heirarchy of judicial courts when an order has been affirmed by a District Court, it is not proper for any subordinate court of the District Court to sit on the judgment of the District Judge. Therefore, the word 'final' mentioned in Section 10 of the Act of 1971 means that the order passed by the District Judge in appeal shall be final under the Act of 1971 and no court much less any court in district will sit over the judgment of the District Judge and it will acquire finality. But by this, it does not mean that the powers of a superior court i.e. of the High Court under Section 115, Civil Procedure Code are taken away. District Judge is subordinate to High Court. Under Section 115, Civil Procedure Code, the High Court has power of superintendence over all subordinate courts and that power can certainly be exercised by the High Court in exercise of its supervisory powers and this has not been taken away by the Act of 1971. By using the word 'finality' to the order of the District Judge, the general power conferred on the High Court to exercise its Revisional jurisdiction over all judicial courts cannot be taken away. Therefore, to say that the District Judge is a persona designata and the whole proceedings shall be over after his decision and it will achieve finality and the High Court will not be able to exercise its revisional powers under Section 115, Civil Procedure Code is far from correct view of the matter.
6. We had the benefit of going through a very elaborate decision given by Justice S. C. Pandey but perhaps the attention of Justice Pandey seems to have not been brought to his notice the Division Bench decision in Misc. Petition No. 3070/85, Atidayal (supra). In this connection, reference may be made to the two decisions of the Supreme Court, namely, in the cases of Chhaganlal v. Indore Municipality, AIR 1977 SC 1555 and Shyam Sunder Agarwal and Co. v. Union of India, AIR 1996 SC 1321. The decision given in the case of Chhaganlal (supra) has been reiterated by the Supreme Court recently in the case of Shyam Sunder Agrawal and Co. (supra). In the case of Chhaganlal (supra), the matter arose from this Court under the M. P. Municipal Corporation Act, 1956, and the Apex Court, after reviewing the provisions of the M. P. Municipal Corporation Act, held that power under Section 115, Civil Procedure Code is available against the order passed by District Court and the order of the District Court is revisable. It was observed :
"8. The second contention is based on Section 149 of the Madhya Pradesh Municipal Corporation Act, 1956. It provides that an appeal shall lie from 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 held the High Court was in error in entertaining a Revision Petition. This plea cannot be accepted for, under Section 115 of the Civil Procedure Code the High Court has got a power to revise the order passed by courts subordinate to it. It cannot be disputed that the District Court is a subordinate Court and is liable to the revisional jurisdiction of the High Court......."
7. Section 149 of the M. P. Municipal Corporation Act, 1956 reads as under:
the District Court, meaning thereby that the appeal has to be heard by a District Judge who is designated by office and the expression used in Section 149 of the Act of 1956 is a 'District Court'. Therefore, the learned Single Judge (Hon. Pandey, J.) distinguished two expressions, i.e. 'District Court' constitutes even a Civil Judge Class I or Civil Judge Class II; whereas under Section 10 it is the 'District Judge' who is designated. It is true that under the Act of 1971, it is the District Judge designated to hear the appeal as against the District Court under Section 149 of the M. P. Municipal Corporation Act. But nonetheless the fact remains that finality has been attached to both the orders.
8. In this connection, it may be mentioned that designating any authority by office is as against a designating individually. A persona designata is a person who is pointed out or described as an individual, as class, or as filling a particular character (See Osborn's Concise Law Dictionary, 4th Edn. P. 253). Therefore, in the present case, the Appellate Authority is not a persona designata, i.e. individual, but it is designated by office and any occupant to that office can function as an Appellate Authority. Reference may also be made in this connection to a decision of the Supreme Court in the case of Mukri Gopalan v. C. P. Aboobacker, AIR 1995 SC 2272, wherein it has been observed :
"The appellate authorities as constituted under Section 18 being the District Judges they constituted a class and cannot be considered to be persona designata. The appellate authority functions as a Court."
Thus, any order passed by the District Court, the revision can be entertained by the High Court. Likewise, revision against any order passed by the appellate authority, i.e. District Judge under the Act of 1971 can be entertained by the High Court as it is Court subordinate to High Court. We are, therefore, of the opinion that the distinction which the learned Single Judge has tried to make is not of any substantial nature.
Reference in this connection may further be made to another decision of the Apex Court in the case of Shyam Sunder Agrawal and Co., AIR 1996 SC 1321 wherein the decision given in the case of Chhaganlal (supra) was approved by the Apex Court and their Lordships after referring to the decision in the case of Chhaganlal (supra) observed as under:
"........In the aforesaid circumstances, such appellate order having been passed by a civil court, constituted under a special statute subordinate to the High Court, the High Court does not cease to have revisional jurisdiction under Section 115 of the Code of Civil Procedure."
9. Our attention was also invited to a Full Bench decision of Patna High Court in the case of Bhartiya Hotel v. Union of India, AIR 1968 Patna 476 and there their Lordships observed with reference to the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 where similar provision appeared, as under:
"......The power of the High Court in revision under Section 115, Civil Procedure Code, is not in any way wider than the power of the High Court under Articles 226 and 227 of the Constitution. Thus, whatever may be the reasonable apprehension as regards the mode of trial before the original authority, viz. The Estate Officer, no such apprehension can exist when the matter is taken up on appeal before the District Judge, subject to correction by the High Court either in exercise of its revisional jurisdiction under Section 115, Civil Procedure Code or under Articles 226 and 227 of the Constitution."
In this connection, reference may also be made to a decision of Apex Court in the case of Thakur Das v. State of M. P. and Anr., 1978 MPLJ 101 (SC) = AIR 1978 SC 1. This matter also arose from this Court under the Essential Commodities Act and the question was whether a revision under Section 435 or Section 439 of the Code of Criminal Procedure will lie to the High Court or not against the order passed by the Sessions Judge in exercise of powers under Section 6C of the Essential Commodities Act. Their Lordships observed as under :
"When the Sessions Judge was appointed an Appellate Authority by the State Government under Section 6C of the Essential Commodities Act, 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 6C 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...."
10. It may not be out of place to refer some of the decisions of the Apex Court of which reference has been made by Justice Pandey. In the case of S.A. Industries (P) v. Sarup Singh, AIR 1965 SC 1442 which was a case under the Delhi Rent Control Act, 1958, the question was whether against the judgment of the learned Single Judge of Punjab High Court, Letters Patent Appeal under Clause 10 of the Letters Patent to a Division Bench of the High Court would lie. Their Lordships of the Apex Court observed that the expression 'final' prima facie connotes that an order passed on appeal under the Act is conclusive and no further appeal lies against it. Their Lordships in the last sentence in Section 43 of the Act do not restrict the scope of the said expression; indeed the said sentence imposes a further bar. The expression 'final' in the first part of Section 43 of the Act puts an end to a further appeal, - to mean that Letters Patent Appeal before the Division Bench is not maintainable. This case does not provide us any assistance because here we are concerned with the revisional powers of the High Court and the remedy under the Act of 1971 is barred because of the word 'final' under Section 10 of the Act of 1971. That further shows that no other Civil Court can sit over the order passed by the District Judge, i.e. only with regard to co-ordinating Bench and not qua the superior court i.e. High Court. The High Court's power under Section 115, Civil Procedure Code cannot be regulated by the Act of 1971 as the Court of District Judge is a Court subordinate to High Court.
Reference may be made to a decision of the Apex Court in the case of Aundal Ammal v. Sadasivan Pillai, AIR 1987 SC 203. This was a case with regard to Kerala Buildings (Lease and Rent Control) Act, 1965 and there the question arose whether a second revision under Section 115, Civil Procedure Code is maintainable or not. In the Kerala Buildings (Lease and Rent Control) Act, Section 20 provided a revision and it was laid down that where the Appellate Authority under Section 18 is a subordinate Judge to the District Court and in other cases to the High Court, may at any time, entertain an application by aggrieved party in its revisional jurisdiction. Therefore, once a party has already availed the remedy of revision from the order passed by Subordinate Judge before the District Court, second revision before High Court was barred under Section 20 of the said Act. In that context, their Lordships observed as under :
".......The ambits of revisional powers are well settled and need not be restated. It is inconceivable to have two revisions. The scheme of the Act does not warrant such a conclusion. In our opinion, the expression 'shall be final' in the Act means what it says."
The ratio of this decision again came to be challenged in the case of M/s Jetha Bai and Sons, Cochin v. M/s Sunderdas Rathenai, AIR 1988 SC 812 and their Lordships after examining again the ratio given in the case of Aundal Ammal v. Sadasivan Pillai (supra) held that there is no conflict between the decisions in Aundal Ammal v. Sadasivan (supra) and Shyamaraju Hegde v. Venkatesha, AIR 1987 SC 2323. Their Lordships observed as under :
"........The Legislature in its wisdom has thought that on account of the ample opportunity given to a party to put forth his case before three courts, viz. the Trial Court, the Appellate Court and the Revisional Court, there was no need to make the revisional order of the District Court subject to further scrutiny by the High Court by means of a second revision either under the Act or under the Civil Procedure Code...."
Our attention was also invited to a decision given in the case of Sales Tax Commissioner, Lucknow v. M/s S.C.B. Refilling Works, AIR 1989 SC 922. This was a case under the U. P. Sales Tax Act, 1948 and the question was that after the matter having been gone in appeal before three member Bench of Tribunal, whether this order is revisable by High Court or not. This was a matter arising out of Sales Tax and there also, the expression 'final' appeared subject to an appeal to the Tribunal, and their Lordships observed that in the scheme of things, the Sales Tax Tribunal has been constituted in place of High Court. Therefore, revision to the High Court is not maintainable except as per Section 11 of the U. P. Sales Tax Act where a revision would lie in special circumstances and no further revision is maintainable under Section 115 of the Civil Procedure Code.
In the case of Mukri Gopalan v. C.P. Aboobacker, AIR 1995 SC 2272, question was whether under Kerala Buildings (Lease and Rent Control) Act, Section 5, Limitation Act for condonation of delay would be attracted in the appeals or not. Their Lordships after examining the provisions of the Kerala Buildings (Lease and Rent Control Act) held that Limitation Act will apply and Section 5 of the Limitation Act would be applicable to such cases. Their Lordships further observed that since the Appellate Authority functioning under Section 18 is a Court, therefore, it is amenable to revisional jurisdiction of the High Court being Court subordinate to the High Court.
11. As a result of above discussion, we are of the opinion that the view taken by Justice S. C. Pandey in the case of Arjunlal Agrawal v. Union of India decided in C.R. No. 1557/96 dated 30-1-1997, with respect does not lay down correct law and the view taken by the Hon. C. P. Sen, J. and affirmed by the Division Bench of this Court in the case of Atidayal v. Union of India and Ors., M.P. No. 3070 of 1985 lays down the correct law. We accordingly answer the question framed by the learned Single Judge that any order passed by the appellate officer under Section 9 of the Act of 1971 is revisable by High Court under Section 115 of Civil Procedure Code. All the cases are remitted to the learned Single Judge for disposal in accordance with law.