Bombay High Court
Marg vs The New India Assurance Co on 23 February, 2010
Author: Ferdino I. Rebello
Bench: F.I. Rebello, J.H. Bhatia
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Mgn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, CIVIL JURISDICTION
WRIT PETITION NO.7946 OF 2009
Mr. Nusli Neville Wadia )
of Mumbai, Indian Inhabitant, having )
his office at Neville House, J.N. Heredia )
Marg, Ballard Pier, Mumbai-400 023. )..PETITIONER
Versus
1.The New India Assurance Co., Ltd., )
being a Government Company incorporated)
under the provisions of the Companies )
Act 19556 and having its Head Office at )
The New India Assurance Building, 87, )
Mahatma Gandhi Road, Fort, )
Mumbai-400 001. )
1.Shri S.D. Dhokrikar of Mumbai, Indian )
Inhabitant, described in the Order dated )
29th August, 2008 as "the Estate Officer", )
having his office at New India Assurance )
Building 4th Floor, 87, Mahatma Gandhi )
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Road, Mumbai-400 001. )..RESPONDENTS
Mr. Rafiq Dada, Senior Counsel with Mr. Percy Ghandy and Mr. Vinayak
Vengurlekar i/b. M/C.Crawford Bayley & Co., for the Petitioner.
Mr. V.Y. Sanglikar, for Respondents.
CORAM : F.I. REBELLO & J.H. BHATIA, JJ.
JUDGMENT RESERVED ON 27TH JANUARY, 2010
JUDGMENT DELIVERED ON: 23RD FEBRUARY, 2010
ORAL JUDGMENT (PER FERDINO I. REBELLO, J.)
Rule. By consent of parties heard forthwith.
2. The petition arises from an order passed by the Principal Judge, City Civil Court, Mumbai under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, hereinafter referred to as the Act. The Appeal preferred by the petitioner herein has been dismissed by judgment and order dated 21st July, 2009.
3. At the hearing of this petition on behalf of the respondents learned Counsel has raised two preliminary objections as to the maintainability of this petition. We may first deal with these aspects as they touch upon the jurisdiction of a Division Bench of this Court to hear and decide the petition.
4. The preliminary contentions urged on behalf of the respondents are (1) That considering Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules 1960 which hereinafter shall be referred to as the Rules, the Petition, in terms of Rule ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 3 18(3) must be heard by a learned Single Judge of this Court. A Division Bench, therefore, it is submitted would have no jurisdiction to hear and decide the Appeal and (2) Placing reliance on an unreported order of a learned Division bench dated October 5, 2006 in Writ Petition No.6846 of 2005 in the case of Shri Mahesh N. Kothari & Ors. vs. The Life Insurance Corporation of India & Anr., it is urged that against the order passed in Appeal by the Principal Judge, City Civil Court, a Revision Application lies to this Court. As a Revision Application lies this Court should not exercise its extra ordinary jurisdiction.
Developing the argument on the first issue, the learned Counsel has principally relied on the Appellate Side Rules and judgment of the Division Bench of this Court in Principal, Micky School vs. State of Maharashtra & Ors., 2005 (4) Mh. L.J. , and judgment of the learned Single Judges of this Court in Sanjay Sadashiv Patil vs. State of Maharashtra & Ors., 2008(4) Mh. L.J. 262, Hindustan Lever Research Centre Employees' Union vs. Hindustan Lever Ltd.
& Ors., 2007 (6) All M.R. 734 and the judgment in the case of Girdhar C. Nichani vs. Rev. E.H. Lewellen & Anr., 1991 Mh. L.J. 891.
5. On the other hand on behalf of the petitioner learned Counsel has taken us through the provisions of Rule 18 of Chapter XVII to contend that if the Explanation to Rule 18 is considered it will only be referable to the various acts as contained in the Rules and to that extent Rule 3 will have to be so read read as otherwise the Explanation will become otiose and/or superfluous. The learned Counsel has drawn our attention to the judgment of another Division Bench of this Court in Patru ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 4 Kanuji Ghodmare & Ors. vs. Scheduled Tribes Caste Certificate Scrutiny Committee & Ors., 2004 (Supp. 2) Bom. C.R. 715 to contend that on considering Rule 18(3) a learned Division Bench in the matter arising from the Maharashtra Scheduled Castes, Scheduled Tribes, D-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 has taken the view that in view of deletion of Entry 44 from Rule 18, a Division Bench can hear the matter.
6. The importance of the issue as to whether a learned Single Judge or a Division Bench can hear the matter arises in view of the law declared by the Supreme Court in Pandurang vs. State of Maharashtra, (1986) 4 S.C.C. 436 Volume LXXX page 21, where the Supreme Court held that when a matter is required to be decided by Division Bench of the High Court under a relevant Rule of that High Court and is decided by a single Judge. the judgment would be a nullity, the matter having been heard by a Court which had no competence to hear the matter, it being a matter of total lack of jurisdiction. Even a right decision by a wrong forum is no decision. It is non-existent in the eye of law and hence nullity.
This judgment was sought to be distinguished on the ground that this is not a case of want of jurisdiction as writ petitions have to be heard by the High Court. It is only on account of the procedural Rules that the Court distributes its business between Division Benches and single Judges. A procedural irregularity it is submitted does not amount to having no jurisdiction, as the jurisdiction is of the High Court. Pointing to the relevant Rule it is submitted that the rule does not exclude a ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 5 Division Bench from hearing the matter which can be heard by a learned single Judge.
We do not propose to go into that controversy considering Article 141, as the law as declared by the Supreme Court is binding on this Court. The limited question will be whether the ratio of that judgment will apply while construing Rule 18, which uses the expression 'may'.
7. With that we may proceed first to consider the relevant Rules of Chapter XVII. We may gainfully reproduce Rule 1(i) which reads as under:-
(i) Applications for issue of writs, directions, etc. under Article 226 of the Constitution.
Every application for the issue of a direction, order or writ under Article 226 of the Constitution shall, if, the matter in dispute is or has arisen substantially outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought. It shall be solemnly affirmed or supported by an affidavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application has been disposed of.
We then have Rule 4 which reads as under:-
4. Division Bench to dispose of the application; rule nisi may be granted by a Single Judge. Applications under Rule I shall be heard and disposed of by a Division Bench; but a single Judge may grant rule nisi, provided that he ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 6 shall not pass any final order on the application.
Rule 17 reads as under:-
(i) Applications under Article 227 and 228. An application invoking the jurisdiction of the High Court under Article 227 of the Constitution or under Article 228 of the Constitution, shall be filed on the Appellate Side of the High Court and be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought. It shall be solemnly affirmed or supported by an affidavit. In every such application, the applicant shall state whether he has made any other application to the Supreme Court or the High Court in respect of the same matter and how that application is disposed of.
(ii) Applicant to inform Court, if, during pendency of an application, the Supreme Court is approached. If the applicant makes an application to the Supreme Court in respect of the same matter during the pendency of the application in the High Court, he shall forthwith bring this fact to the notice of the High Court by filing an affidavit in the case and shall furnish a copy of such affidavit to the other side.
(iii) Hearing may be adjourned pending decision by Supreme Court.
The Court may adjourn the hearing of the application made to it pending the decision of the Supreme Court in the matter.
(iv) Rules 2 to 16 to apply mutatis mutandis. Provisions of Rules 2 to 16 above shall apply mutatis mutandis to all such applications.
::: Downloaded on - 09/06/2013 15:38:31 :::This Order is modified/corrected by Speaking to Minutes Order 7 The next relevant Rule is Rule 18 and we shall gainfully refer the same.
18. Single Judge's powers to finally dispose of applications under Article 226 or 227. Notwithstanding anything contained in Rules 1,4 and 17 of this Chapter, applications under Article 226 or under Article 227 of the Constitution (or applications styled as applications under Article 227 of the Constitution read with Article 226 of the Constitution) arising out of-
(1) the orders passed by the Maharashtra Revenue Tribunal under any enactment, (2) .........
(3) the decrees or the orders passed by any Subordinate Court [or by any quasi Judicial Authority] in any suit or proceeding (including suits and proceedings under any Special or Local Laws), but excluding those arising out of the Parsi Chief Matrimonial Court [and orders passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the Administrative Tribunals Act, 1985; and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.] (4).....
to (44).....
may be heard and finally disposed off by Single Judge ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 8 appointed in this behalf by the Chief Justice.
........................
Explanation The expression "order" appearing in clauses (1) to (41) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the abovementioned statutes.]
8. A perusal of the Rules, therefore, would indicate that the ordinarily all petitions by way of application for issue of direction, order or writ under Article 226 of the Constitution of India shall be heard by a Division Bench. Then under Rule 18 notwithstanding anything contained in Rules, 1,4 and 17 matters set out therein may be heard by a learned Single Judge. Clause (3) has been partly amended by Notification dated 15th July, 1999 and subsequent notification on 23rd November, 2005. On a reading of Clause (3) , all orders passed by any subordinate Court or by a quasi judicial authority in any suit or proceedings arising under any special or local laws except those excluded may have to be heard by a learned Single Judge. If Clause (3), therefore, is read in its correct perspective, really speaking Clauses (1), (2) and (4) to (43) becomes otiose as there is no need then to refer to them as an order passed under any special or local laws would be included. The expression "special or local laws" have not been defined under the Rules or under the Chapter.
The two expressions may be interchangeable. The explanation to Rule 18 explains that order in clauses (1) to (41) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the above statutes. In other words ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 9 only judicial or quasi judicial orders passed by any judicial, or quasi judicial authority in the course of adjudicatory proceedings and not administrative or ministerial orders.. That would leave the question as to whether administrative and ministerial orders under Clause (43) will also have to be heard by learned single Judge. Rule 18 itself uses the expression 'may be heard and finally disposed off by a learned Single Judge. Thus a reading of Rule 18 would mean that ordinarily the matter be heard by a Single Judge, notwithstanding anything contained in Rules 1,4 and 17. If then a matter is heard by a Division Bench, it will not be a case of want of jurisdiction.
9. At this stage we may also note two relevant provisions of the Constitution namely Articles 323A and 323B. We may gainfully reproduce the relevant provisions of Articles 323-A and 323-B "323A. (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government. "
323-B. (1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 10 offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws.
(2) The matters referred to in clause (1) are the following, namely:-
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;
(d) land reforms by way of acquisition by the State of any estate as defined in article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;
(e) ceiling on urban property;
(f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in article 329 and article 329A.
(g) production, procurement, supply and distribution of food-stuffs (including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;"
[(h) rent, its regulation and control and tenancy issues including the right, title and interest of landlords and tenants;] ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 11 [(i)] offences against laws with respect of any of the matters specified in sub-clauses (a) to (h)] and fees in respect of any of those matters;
[(j)] any matter incidental to any of the matters specified in sub-clauses
(a) to [(i)]."
10. These Articles had come up for consideration before the Supreme Court in L.Chandra Kumar vs. Union of India & Ors., (1997) 3 SCC 261. The t observations from paragraph 99 which are relevant for our discussion need to be quoted:-
"All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls."
It would, therefore, be clear that in view of the direction issued by the Supreme Court in L. Chandra (supra) in respect of an order under a Legislation which is referable to Articles 323A and 323B, the orders passed therein will have to be necessarily heard by a learned Division Bench. Under Article 323A provision is made for constitution of Tribunals for trial of disputes with respect to recruitment, conditions of service of persons referred to therein. Under Article 323B there are various laws including Industrial and Labour laws, rent, its regulation and control and tenancy issues enacted either by Parliament or the State Legislature in their respective fields of legislation, will now have to be heard by learned Division Bench in view of the law declared in L.Chandra Kumar (supra). As such Rule 18 in respect of some of the Legislations referred to therein will have to be reconsidered. As we are not dealing with that issue for the present we do not propose to go into that controversy.
11. Let us now examine the judgments referred to in Principal, Micky School ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 12 (supra) where Rule 18(3) was considered and not the Explanation. However, the Court considering the provisions of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, was pleased to observe that it is a special law and, therefore, would fall under clause 3 of Rule 18 and as such the petition will have to be heard by single Bench. Another learned Division Bench in the case of Shriram Gangaram Bute vs. Deputy Registrar, Co-
operative Societies, Akola & Ors., 2008 (4) All M.R. 726 was considering the matter arising from the provisions of the Maharashtra Co-operative Societies Act, 1960. There the learned Division Bench had considered the explanation and the expression "order". The challenge arose from an order of the Deputy Registrar, Co-
operative Societies, superseding the managing committee and appointing an Administrator on the society. This clearly neither was a judicial nor a quasi judicial order. After considering the Rules the learned Division Bench was pleased to observe that the jurisdiction of a single Judge would be restricted to application arising out of the judicial or quasi judicial orders of various authorities enumerated in the rule. The learned Division Bench in the circumstances held that it would have jurisdiction to entertain the petition. It is not necessary to refer to the judgments of the learned single Judges in view of the judgments of the two Division Benches which we have referred to. We may, however, refer to an unreported judgment of a learned single Judge dated 14th July, 2009 in Writ Petition No.5233 of 2009 in the case of Smt. Kavita Kapor vs. Union of India & Ors., decided on 14 th July, 2009 where the learned single Judge was pleased to observe that the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the petitions arising out of the orders passed by the Appellate Authorities under that Act would be heard by a ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 13 learned single Judge. The issue as to whether the Public Premises Eviction Act would fall within the predicates of Article 323-B has not been considered.
11. The argument advanced on behalf of the petitioners on a co-joint reading of the explanation and the clauses that they only refer to the acts listed under the various clauses of Rule 18 cannot be accepted. That may have been the position before Clause (3) of Rule 18 was amended. After the amendment the position would be that orders of Subordinate Court [or by any quasi Judicial Authority] in any suit or proceeding (including suits and proceedings under any Special or Local Laws) will have to be ordinarily heard by a learned Single Judge. To that extent the other clauses may become otiose. That is another issue. However we are in agreement with the learned Counsel for the Respondents that the explanation cannot be limited to mean only orders in respect of acts set out in the other clauses. That another Division Bench pertaining to Caste Scrutiny Committee in the case of Patru Kanuji Ghodmare (supra) held that the Division Bench would have jurisdiction by itself cannot lead to the conclusion that Clause (3) has to be restricted. That contention, therefore, is rejected.
12. The questions that we still have to answer, are whether the Public Premises Eviction Act is a special law and whether the Public Premises Eviction Act would fall within the language of Article 323B(h) which reads as under:-
"Rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants."::: Downloaded on - 09/06/2013 15:38:31 :::
This Order is modified/corrected by Speaking to Minutes Order 14 Under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which hereinafter shall be referred to as the Public Premises Act, Rent is defined under Section 2(f) to mean that "consideration payable periodically for the authorised occupation of the premises and includes......" Under Section 2(e) "public premises" means any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, as also any premises belonging to or taken on lease by or on behalf of the companies, corporation and others as set out under Section 2(e)(ii). Unauthorised occupation has been defined to include the continuous occupation by a 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 5 provides for eviction of unauthorised occupants. Section 4 sets out the requirements for notice before directing eviction. Section 7 provides for recovery of any arrears of rent in respect of any public premises. Section 14 provides for recovery or rent as arrears of land revenue. Unauthorised occupant can include a tenant, licensee or trespasser. It would thus be clear that to an extent it falls within Article 323B(h). At any rate considering Article 323-B(j), it would be a matter incidental to matters specified in sub-clauses (a) to (i).
13. In New India Assurance Company Ltd. vs. Nusli Neville Wadia & Anr., (2008) 3 SCC 279, the Supreme Court has in para.22 observed as under:-
::: Downloaded on - 09/06/2013 15:38:31 :::This Order is modified/corrected by Speaking to Minutes Order 15 "22. A tenant of a public premises although ordinarily does not get any protection from eviction from the tenanted premises under the provisions of the Maharashtra Rent Control Act, 1999, it is accepted that the action on the part of the landlord, which is State within the meaning of Article 12 of the Constitution of India, must in this behalf be fair and reasonable. In other words the action of the State in terms of the provisions of the Act should not be arbitrary, unreasonable or mala fide."
The Supreme Court also noted that the occupants of public premises may be trespassers, or might have breached the conditions of tenancy, or have been occupying the premises as a condition of service, but were continuing to occupy the premises despite cessation of contract of service.
The Court also noted that there may another class of tenants who are required to be evicted not on any of the grounds mentioned hereinbefore but inter alia on the ground, which requires proof of the fairness and reasonableness on the part of the landlord which may include requirement for its own use and occupation. Referring to the judgment of Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay the Court took note of the fact that the public authorities are not hidebound by the requirements of the rent Act, however, in respect of dealing with tenants they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords. In para.50 it was observed as under:-
::: Downloaded on - 09/06/2013 15:38:31 :::This Order is modified/corrected by Speaking to Minutes Order 16 "50. The literal interpretation of the statute, if resorted to, would also lead to the situation that it would not be necessary for the landlords in any situation to plead in regard to its need for the public premises. It could just terminate the tenancy without specifying any cause for eviction."
14. In M/s.Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293, the Supreme Court was pleased to observe as under:-
"The field of letting and eviction of tenants is normally governed by the Rent Act. The Port Trust is statutorily exempted from the operation of the Rent Act on the basis of its public/governmental character."
15. In Ashoka Marketing Ltd. & Anr. vs. Punjab National Bank & Ors., (1990) 4 SCC 406 the Supreme Court noted that the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the Delhi Rent Control Act, 1958 both were Acts of Parliament and fall under Concurrent List. The question there was where two enactments of the same legislature fall under the same legislative list, the question as to which enactment will override the other in case of conflict of laws. It was held that had to be determined on the basis of principles of statutory interpretation as both Acts are special enactments.
16. From a consideration of what has been stated earlier it would be clear ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 17 that matters of rent, landlord and tenant relationship in matters of public premises the Rent Control Act will not apply. To that extent it is a special legislation dealing with a class of landlords which is either the Government or Governmental companies or Corporations or other statutory bodies. The Public Premises Eviction Act as a Special legislation deals with a class of tenants and landlords who are excluded from the purview of the Rent Control Legislation. The Rent Control Act makes a departure from the general law regulating the relationship of landlord and tenant contained in the Transfer of Property Act inasmuch as it makes provision for determination of standard rent, it specifies the grounds on which a landlord can seek the eviction of a tenant, it prescribes the forum for adjudication of disputes between landlords and tenants and the procedure which has to be followed in such proceedings.
In Ashoka Marketing (supra) the Supreme Court noted that both the Public Premises Act as also the Rent Control Act are special statute in relation to the matters dealt with therein. The Public Premises Eviction Act similarly provides for recovery of rent, eviction of tenants and the forum, where proceedings can be initiated.
17. In our opinion, therefore, the Public Premises Eviction Act deals with recovery of rent and eviction of tenants by special procedure under the provisions of the Public Premises Eviction Act. In our opinion, therefore, atleast this category of cases would fall within Article 323B(2)(h). At any rate considering Article 323-B(j), it would be a matter incidental to matters specified in Article 323-B(h).
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18. Another aspect of Rule 18 of Chapter 17 which we have earlier noted is that, it uses the expression "may be heard and finally disposed off by single Judge appointed in this behalf by the Chief Justice." In other words the jurisdiction of the Division Bench is not totally ousted. Ordinarily matters covered by clauses (1) to (43) have to be heard by single Judge, but the jurisdiction of the Division Bench is not totally excluded. Thus though orders in respect of licensees and trespassers will be covered by Rule 3, in our opinion, however, in order to avoid conflict it would be advisable considering that the Rule does not oust totally the jurisdiction of the Division Bench in matters covered by the Rule, petitions dealing with licensees or trespassers along with tenants under the Public Premises Eviction Act, and arising from orders passed by the Appellate Authority or from the original authority, will have to be heard by a Division Bench. In other words if such matters are heard by a Division Bench they are not before a Court having no jurisdiction and the judgment considering the rules may not amount to a nullity.
18.. The other issue which we have to decide is, if an alternative remedy like revision lies, is the extra ordinary jurisdiction excluded. What is the effect of the order passed in Writ Petition No.6846 of 2006 Shri Mahesh N Kothari & Ors (supra).
At the outset we may first explain that it is not a judgment. The learned Bench merely declined to exercise jurisdiction. The learned Bench proceeded on the footing that from the order passed by the learned Principal Judge a Revision would ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 19 lie. The issue as to whether the Principal Judge, City Civil Court was acting as a Court or a persona designata was neither considered nor discussed. The second aspect of the matter is that merely because a Revision lies that would not exclude the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.
The Rule not to exercise jurisdiction is a Rule of procedure and not a rule excluding jurisdiction. It is now settled law that an alternate remedy does not exclude the jurisdiction of the High Court in entertaining a Writ Petition.
19. We may only refer to some of the judgments pointed out at the bar on behalf of the petitioners to contend that the Principal Judge, City Civil Court exercising the jurisdiction as an Appellate Authority under the Public Premises Eviction Act, 1971, does so in the capacity as a persona designata and not as a Court. Our attention was invited to a judgment of the Delhi High Court in N.P. Berry vs. Delhi Transport Corporation & Anr., 15 (1979) DLT 108. The learned Division Bench of the Delhi High Court after considering the Scheme and the provisions of the Public Premises Eviction Act Article 227 and other provisions noted that the whole point of the distinction is whether the Judge is to act as a persona designata or as a court. The mere fact that it is a Judge who is to hear the appeals is not conclusive to show that he has to act as a Court. The fact that the legislature did not confer power on a District Judge or a City Civil Court as such to hear the Appeals, but the Legislature has chosen to designata the authority as Appellate Officer would make it clear that the power was conferred in his capacity as persona designata. The Court also noted that in so far as the power and control are concerned, certain power of the Civil Court have been conferred and that would show that they are not Civil Courts. Section 115 ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 20 of the Code of Civil Procedure applies only when a Court makes an order which is subject matter of an Appeal. We are in agreement with the view taken that the Appellate power is exercised by a persona designata. Considering that the power of appeal is conferred not on the Court but on the Principal Judge of the City Civil Court as an Appellate Authority.
20.. We may now refer to some of the other judgments referred to. In Gangadhar Bapurao Gadre vs. Hubli Municipality,1925 B.L.R., 519, a Division Bench of this Court was considering an order passed by the District Judge under Section 22 of the Bombay District Municipality Act. After considering various aspects the learned Division Bench came to the conclusion that the Assistant Judge who heard the application, was not a Court within the meaning of Section 115 for the High Court to exercise its extra ordinary jurisdiction. In Municipality of Sholapur vs. Tuljaram Krishnasa Chavan, A.I.R. 1931 Bombay 582 the provisions of the Bombay City Municipalities Act was under consideration. The learned Bench noted that where the Judge or the presiding officer of a Court as distinguished from the Court itself is directed to perform any function of any authority created by a statute, such a Judge may be considered as a persona designata and not a Court, but where a Civil Court subordinate to the High Court is constituted as an authority to decide the rights between the parties and is directed to perform judicial functions, it is difficult to hold that such a Court is a persona designata and not a Court subordinate to the High Court. In Keshav Ramchandra vs. Municipal Borough, Jalgaon and Others, AIR 1946 Bom.64 the issue was whether against an order passed by a Judge acting under Section 15 of the Bombay Municipal Boroughs Act Revision would lie. The ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 21 learned single Judge (Chagla J.) was pleased to hold that the Judge there was acting as a persona designata and as such Revision would not lie. Similar was a view taken by another Division Bench in Jagmohan Surajmal Marwadi vs. Venkatesh Gopal Ranade, A.I.R. 1933 Bom.105 under the Bombay City Municipalities Act where the Court held that the District Judge acting under Section 15 acts as persona designata.
21. It will be clear, therefore, from these authorities and considering that the power under the Public Premises Eviction Act is conferred on the Appellate Authority who is the Principal Judge of the City Civil Court, that authority is acting as a persona designate and as such no revision would lie. Even otherwise, in our opinion, merely because a Revision would lie by itself would not oust the extra ordinary jurisdiction of this Court. Hence on that point we are clearly of the view that an order declining to exercise jurisdiction on the ground of alternate remedy would not constitute a binding precedent which another Division Bench in its judicial discipline is bound to follow and/or refer to a Larger Bench for consideration.
22. For the view to be taken we pass the following order:-
(1) The preliminary objection as to the jurisdiction of the Division Bench of this Court is rejected. It will be open to the Division Bench to hear and decide the present petition.
(2) In so far as the contention that the Writ Court cannot exercise its extra ordinary jurisdiction as a revision is available, as we have held that the District Judge when acting as Appellate Authority acts as a persona designata and hence no ::: Downloaded on - 09/06/2013 15:38:31 ::: This Order is modified/corrected by Speaking to Minutes Order 22 revision lies. In the light of that the challenge as to jurisdiction on that count has to be rejected.
(3) Considering that some Clauses of Rule 18 of Chapter XVII to an extent are in conflict with the provisions of Article 323-B and directions of the Supreme Court, the matter be placed before the learned Chief Justice for consideration.
(4) Matter be placed for admission on the other issues.
( J.H. BHATIA, J.) (FERDINO I. REBELLO, J.)
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