Bombay High Court
Hakikullah Haji Rahimutullah And ... vs The Maharashtra Housing And Area ... on 7 January, 1997
Equivalent citations: AIR1997BOM239, 1997(4)BOMCR208, 1997(1)MHLJ756, AIR 1997 BOMBAY 239, (1997) 1 MAH LJ 756 (1997) 4 BOM CR 208, (1997) 4 BOM CR 208
Author: A.P. Shah
Bench: A.P. Shah
ORDER
1. The fact rise to this petition are rather peculiar. The petitioners are the owner of certain structures standing on survey No. 93 (part) situate at Govandi, Mumbai. The petitioners were served with notices dated 1st Sept. 1994 under Section 66 of the Maharashtra Housing and Area Development act, 1976 ('Act' for short) by the Competent Authority No.1 Maharashtra Housing and Area Development Authority (MHADA). It seems that the notices were issued on a complaint made by the Executive Engineer Relocation, Rajiv Gandi Zopadpatti Sudhar and Niwara Prakalp (RGZSNP) complaining that the petitioners have unauthorisedly occupied the land belonging to RGZSNP by erecting temporary structures on survey No. 93 (part).
2. Pursuant to the notices under section 66, the petitioner appeared before the then Competent Authority No. 1 Shri B.T. Sawant who now stands promoted as the Appellate Officer No. 1. The petitioner filed their written statement denying the allegations contained it notice. The proceedings which were numbered as CAI/138 of 1994 to CAI/144 of 1994 were appearing before the then Competent Authority No.1 Shri B.T. Sawant from the time to time. On 3rd May, 1995 the proceedings were dismissed for want of prosecution. However, on the application made by the Executive Engineer the proceedings were restored to file and kept for recording evidence under order dated 25th Aug. 1995, passed by the Competent Authority No. 1 Shri B.T. Sawant.
3. The competent Authority Shri Sawant recorded the evidence of both the parties in the eviction proceedings and arguments of the Advocates were also heard on 3rd on Nov. 1995. The learned Advocate Shri Birje appearing for the Authority along the Shri Rawal, Assistant Engineer and Shri Rehaman the officers of the Authority were also present. The Competent Authority No. 1 Shri Sawant dictated the jugdment in the open court. He dismissed the eviction proceedings and dropped the action initiated under Section 66 of the Act. Thereafter, the petitioners applied for certified copies. However, they were told the by the staff of the office of Competent Authority No. 1 that the judgment is not yet signed and ready.
4. In or about June, 1996 the petitioners Advocate received a notice dated 5th June, 1996 from the office of the Competent Authority No. 1 calling upon them to remain present before the him on 8th July, 1996 for personal hearing as a last chance in respect of the show cause notice dated 1st Sept. 1994 issued against the petitioners. It may be stated at this stage that the term of Shri B.T. Sawant who was acting as a Competent Authority No. 1 came to an end on 15th Nov. 1995. Thereafter Shri S. P Khute took charges as the Competent Authority No. 1 Shri B.T. Sawant was made the Appellant Officer with effect from 16th Nov. 1995. The petitioners were naturally surprised to receive such a notice from the office of the Competent Authority No. 1 as the proceedings initiated against them were already disposed of on 4th Nov. 1995 by the then Competent Authority No.1 Shri B.T. Sawant. By this letter dated 26th June, 1996 the petitioners' Advocate brought this fact to the notice of the new Competent Authority No. 1.
5. On 8th July, 1996 the Advocate of the petitioners made an application before the Competent Authority No.1 that the proceedings were already disposed of by the then Competent Authority No. 1 Shri B.T. Sawant on 4th Nov. 1995 and as such there is no question of further hearing in the matter. The petitioner's Advocate applied for revocation of the notice dated 5th June, 1996 and stay of the further proceedings. It seems that the Advocate Shri Birje appearing for the Authority also conceded that the previous Competent Authority had dictated order on 4th Nov. 1995 but the same was not reduced into writing. It was also brought to the notice of the Competent Authority that the office register maintained by the then Competent Authority bears the reference to the order passed on 4th Nov. 1995. The office staff officiating in the office of the Competent Authority also confirmed this position. The Competent Authority No. 1, however, declined to accept the petitioners' application and directed the petitioners to proceed with the matter and on their refusal to argue the case, he kept the matter for judgment on 30th June, 1996. It is on this factual background the petitioners have approached this Court seeking a mandamus directing the concerned authority to sign the judgment dictated in open court on 4th Nov. 1995.
6. Pursuant to the directions issued by this Court, the then Competent Authority Shri. B.T. Sawant filed his affidavit in the proceedings. He stated in his affidavit that he recorded the entire evidence in the matter and thereafter heard the arguments of both the sides on 19th Oct. 1995 and posted the proceedings for judgment on 27th Oct. 1995. However, there was no stenographer, with the result the ejectment proceedings were adjourned to 31st Oct. 1995. On 31st Oct. 1995 as the strenographer was not provided, the ejection application was adjourned to 3rd Nov. 1995. As the regular stenographer of the Competent Authority No. 1 was on medical leave, Shri Sawant dictated the judgment to one Shri Tamhane, stenographer of Shri S.P. Khute, who was at the relevant time working as Competent Authority No. III. Shri Sawant further stated that he made enquiries with Shri Tamhane who confirmed that he had dictated the judgment in open Court. He has also seen the typed draft of the judgment but he has not signed it. Shri Sawant stated that Shri Tamhane told him that he was unable to say whether the typed judgment was submitted to him for signature or not as there were other judgments to be typed. Shri Sawant stated that possibly the judgment might not have been typed before 16th Nov. 1995 when his term expired and, therefore, it was not presented for his signature.
7. The short but interesting question which falls for consideration is whether the then Competent Authority No. 1 Shri B.T. Sawant or the present Competent Authority Shri. S.P. Khute can be directed to sign the judgment which was, admittedly, dictated in open Court on 4th Nov. 1995. Order XX Rule 8 of the Civil Procedure Code, 1908 provides guidance in the situation of this nature. Rule 8 reads as under:
"Where a Judge has vacated office after pronouncing judgment, but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which the Court was subordinate."
8. In Vinod Kumar Singh v. Banaras Hindu University, , the Supreme Court held that when a judgment is pronounced in open Court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow. Ordinarily judgment is not delivered till the hearing is complete by listening to submissions of counsel and perusal of records and a definite view is reached by the Court in regard to the conclusion. Once that stage is reached and the Court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstance or a review is asked for and is granted. When the judgment is pronounced, parties present in the Court know the conclusion in the matter and often on the basis of such pronouncement, they proceed to conduct their affairs. If what is prononcement in Court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken. A judgment pronounced in open Court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case.
9. This Court had an occasion to consider this question in Darayas Cawasji Balsara v. Shenaz Darayas Balsara, . In that case the Judge of the Parsi Chief Matrimonial Court dictated his order in open Court after dalegate had reported their unanimous verdict but the judgment remained unsigned. The matter was subsequently shown as part-heard on board only because the question of permanent alimony was required to be decided by the Court. In the meantime, the concerned Judge was transferred to Allahabad High Court. Question arose whether the successor Judge is entitled to sign the judgment on behalf of the Judge who dictated it in open Court and direct the Registrar to prepare the decree for divorce on the basis of the said judgment. Dhanuka, J. held that the unsigned judgment and the notes of evidence should be signed by the successor Judge to whom the work is assigned by the learned Chief Justice and the necessary directions should be given to the office to prepare the minutes, draw up the decree and issue the certified copies. It may be mentioned that Dhanuka, J. also took notice of the fact that the provisions of Order XX, Rules 3 and 8 of the Code do not apply to Chartered High Courts in exercise of their original jurisdiction. He expressed that the rules can be considered even otherwise by analogy.
10. In Ananchaperumal Nadar v. Veerabhadra Pillai, AIR 1952 Trav Co-60, the Travancore High Court held that the succeeding Cheif Justice could sign the decree where the Hon'ble Chief Justice and the puisne Judges who constituted the Bench ceased to be members of the Court before the decree was drawn up and signed.
11. Mr. Govilkar, learned, Government Pleader strenuously argued that under Section 69 of the Act, the Competent Authority has the same power as are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of specific matters and Order XX, Rule 8 is not specified under Section 69 of the Act. Mr. Govilkar, therefore, submitted that the proceedings will have to be heard de novo. I do not find any merit in the submission of Mr. Govilkar. It is undoubtedly true that the provisions of Rule 8 are not specifically made applicable to the Competent Authority under the provisions of the Act. But underlying principles of Rules 3 and 8 are clearly applicable. In this regard reference may be made to a decision of the Madras High Court in T.S. Kunchithapadam v. Add. Labour Court, (1979) 1 Flab LJ 230. There a question arose before the Bench whether the Labour Court has power to allow a claim petition to be withdrawn with permission to renew it later on in the light of the decision in the writ Court. The Court held that under Section 11(3) of the Industrial Disputes Act the Labour Court is vested with the same powers as that of a Civil Court under the Code of Civil Procedure when trying a suit in respect of the matters enumerated therein, Order 23, Rule 1 is not one of the provisions which is made specifically applicable. But from this alone one could not say that the principle of Order 23, Rule 1 cannot be invoked by parties in respect of proceedings before the Labour Court. If the provisions of Order 23, Rule 1 are not applicable, equally Section 11 of the Code is not applicable. But in respect of that the principles of res judicata will be applicable to the orders made by the Labour Court as well. The Court observed held that if in a given case the Labour Court feels that the application, for any technical defect or other sufficient reason, should be permitted to be withdrawn with liberty to file a fresh application, it has jurisdiction to make such an order.
12. Reference may be made to a decision of the Supreme Court in Grindlays Bank Ltd. v. Central Government Industrial Tribunal, . There the question was whether the Industrial Tribunal has got powers to set aside the ex parte decree. The Supreme Court observed that a Tribunal or a body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. Although there is no express povision in the Act or the Rules framed thereunder giving the Tribunal jurisdiction to set aside its ex parte award, the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
13. There is a direct decision of the Punjab and Haryana High Court under the Land Tenures Statutes. In Krishan Kumar v. Financial Commissioner, Taxation Pb. (1984) 2 Rent CJ 521, the Division Bench of the Punjab and Haryana High Court dealt with this issue in the context of an order of the Assistant Collector under the Punjab Security of Land Tenures Act, 1953. In that case it was argued by; the appellants that in spite of the fact that the Assistant Collector had pronounced his order in favour of Mangal, he did not sign the written one. In the absence of the signed order of the Assistant Collector, the sons of Mangal cannot be taken to have been allowed to purchase the land. The Division Bench held that the decision having been announced after hearing the parties and in open Court will be an operative judgment, though due to any reason or circumstances the judgment in pursuance thereof is not signed by the Assistant Collector.
14. In the result, the petition is allowed. The order of the Competent Authority No. 1 dated 5th June, 1996 directing the petitioners to proceed with the matter and fixing the matter for judgment is quashed and set aside. The judgment is already pronounced by the then Competent Authority on 4th Nov. 1995. The present Competent Authority, Shri S.P. Khute is directed to sign the judgment and issue certified copies thereof to the petitioners. Rule is made absolute accordingly. No order as to costs.
Petition allowed.