Bombay High Court
Smt.Meera R. Khanna vs Arun Kumar Ohri on 19 December, 2009
Author: A.S.Oka
Bench: A.S.Oka
1
mst
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE NO.1099 OF 2009
IN
EXECUTION APPLICATION NO.228 OF 2009
IN
EVICTION PROCEEDINGS NO.37 OF 2004
Smt.Meera R. Khanna,
R/o.Flat No.33, Building 17, MHADA Flats,
Bandra Reclamation, Bandra (W),
Mumbai 400 050. Applicant
VERSUS
Arun Kumar Ohri, Flat No.11,
Maharashtra Fisheries Co-op. Hsg. Soc;
Kaustubha, Plot No.8, Bandra Reclamation,
Bandra (W), Mumbai 400 050 having his
office at Ad factors Advertising, 2nd floor,
Manek Mahal, Veera Nariman Road,
Mumbai 400 020. Respondent
Ms.H.B.Gandhi for the applicant.
Mr.Gaurav Mehta for the respondent.
CORAM : A.S.OKA, J.
DATE : 19th December 2009
JUDGEMENT :-
1. A notice was taken out by the applicant under Rule 22 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"). With a view to appreciate the submissions made, it will be necessary to consider the factual matrix of the case. An application was ::: Downloaded on - 09/06/2013 15:27:11 ::: 2 filed by the applicant under section 24 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the said Act"). The applicant claimed that she was a licensor of a residential premises and she had granted leave and license to the respondent to use and occupy the said premises.
An order of eviction was prayed for. By judgment and order dated 27th December 2004, the Competent Authority passed an order of eviction and also directed the respondent to pay the damages @ Rs.50,000/- per month from 1st June 2004 till handing over of vacant possession of the said premises.
2. The Competent Authority by order dated 26th March 2009 transferred the order of payment of compensation to this Court for execution. The claim under the said order was of Rs.3,50,000/-.
Accordingly, an execution application was filed by the applicant praying for various reliefs including attachment of assets of the respondent. In the execution, present notice under Rule 22 of Order XXI of the said Code was issued. The respondent has submitted objections to the execution by filing an affidavit. Accordingly, I have heard the learned counsel for the parties on the objections raised to the execution.
3. The learned counsel appearing for the respondent invited my attention to section 24 of the said Act and submitted that under section 24, the Competent Authority is conferred with the jurisdiction only to pass an order of eviction. He submitted that on conjoint reading of sub- sections (1) and (2) of section 24 of the said Act, the Competent Authority is not ::: Downloaded on - 09/06/2013 15:27:11 ::: 3 conferred with the power to pass an order directing the licensee to pay the damages at double the rate of agreed license fee of the premises. He invited my attention to the provisions of Chapter-VIII of the said Act and in particular section 45 thereof. He submitted that under section 45 a power is conferred on the Competent Authority to forcibly evict the licensee against whom an order of eviction has been made under sub-section (1) of section 24 of the said Act. He submitted that the very fact that there is no provision made in the said Act for execution of an order of Competent Authority regarding payment of damages shows that the legislature never intended to confer any power on the Competent Authority to pass an order directing the licensee to pay the damages. He submitted that the order sought to be executed is nullity.
4. Without prejudice to the aforesaid contentions , learned counsel for the respondent submitted that the order passed by the competent authority of directing payment of compensation is neither an order within the meaning of section 2(14) nor a decree within the meaning of section 2(2) of the said Code. He submitted that the Competent Authority is not a Civil Court. He placed reliance on a decision of the Apex Court in the case of Prakash S. Jain Vs. Marie Fernandes [2004(5)-ALL M.R.(SC)-1.
He submitted that the Apex Court has held that the Competent Authority exercising the jurisdiction under section 24 of the said Act is not a Court and, therefore, the Competent Authority has no power to condone the delay in filing an affidavit seeking leave to defend contemplated by sub section 4(a) of section 43 of the said Act. He submitted that as the Apex ::: Downloaded on - 09/06/2013 15:27:11 ::: 4 Court has already held that the Competent Authority is not a Court, by no stretch of imagination it can be said that the order passed by the Competent Authority is either an order or a decree within meaning of section 2 of the said Code. He, therefore, submitted that the Competent Authority had no jurisdiction to transfer the order to this Court for the purposes of execution. He submitted that for the aforesaid reasons the order of Competent Authority is not capable of being executed and the applicant will have to file a civil suit for recovery of the amount of damages.
5. The learned counsel for the applicant submitted that the Competent Authority had made adjudication on the rights of the parties and, therefore, the order passed by the Competent Authority has force of a decree. She submitted that the Competent Authority has a right to adjudicate upon all the disputes between the licensor and the licensee and to pass an order of eviction. She submitted that the Competent Authority is a Court and, therefore, the order is capable of being executed.
Reliance is placed on decision of this Court in case of Fundacio Privada Intervida Vs. Additional Commissioner, Pune Division, Pune and another [2005(2)-Mh.L.J.-769. Her submission is that there is no merit in the objection raised by the respondent.
6. Broadly following issues arise for consideration viz. :-
I. Whether the Competent Authority under the said Act has a ::: Downloaded on - 09/06/2013 15:27:11 ::: 5 jurisdiction to issue a direction directing the licensee to pay the damages as contemplated by sub- section (2) of section 24 of the said Act ?
II. Whether the Competent Authority can be considered as a Court?
III. Whether final order of eviction and payment of damages passed by the Competent Authority can be termed as an order or a decree which is capable of being executed under the provisions of the said Code?
7. Section 24 of the said Act reads thus :-
"24. Landlord entitled to recover possession of premises given on licence on expiry.-
(1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.
(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.::: Downloaded on - 09/06/2013 15:27:11 ::: 6
(3) The competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence.
Explanation.- For the purposes of this section,-
(a) the expression "landlord" includes a successor-in- interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on licence;
(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein."
Sub-section (1) of section 24 confers jurisdiction on the Competent Authority to pass an order of eviction against a licensee on being satisfied that the license period has expired. Sub-section (2) lays down that a licensee who does not vacate the licensed premises on expiry of license and continues to be in possession thereof till the time the Competent Authority passes an order of eviction, the licensee shall be liable to pay the damages at double the rate of licensee fee or charge of the licensed premises fixed under the agreement. Sub-section (2) of section 24 thus makes the licensee liable to pay the damages from the date on which the license expires at double the rate of agreed license fee. When an application for eviction is made before the Competent Authority on the ground that the period of license has expired either by efflux of time or by revocation thereof, the competent authority is required to adjudicate upon the question whether the period of license has expired. Before making such adjudication, the competent authority has to come to a conclusion that the applicant is the licensor and the respondent is the licensee. Sub section (2) of section 24 creates a liability on the part of the licensee and a ::: Downloaded on - 09/06/2013 15:27:11 ::: 7 corresponding right in favour of the licensor. The liability follows from the fact that the licensee does not vacate the licensed premises on expiry of period of license or on revocation of the period of license. Therefore, once a Competent Authority after adjudication comes to a conclusion that the licensee continues to occupy the premises after expiry of license period or after due revocation of license, the order for payment of compensation under sub section 2 of section 24 must follow. If the submission made by the counsel for the respondent is accepted, it will follow that even after the Competent Authority passes an order of eviction on finding that the license has come to an end, the licensor will have to proceed against the licensee by filing appropriate proceedings such as a suit for recovery of the amount. As stated earlier, the liability of the licensee to pay the damages as provided under sub section 2 of section 24 is a logical consequence of order of eviction being passed under sub-
section (1). Therefore, once the Competent Authority passes an order of eviction, the order for payment of damages follows , as the said licensor becomes liable to pay compensation as provided under sub-section (2) of section 24 , on the Competent Authority finding that the licensee has not vacated the premises after expiry of period of licensee.
8. On this aspect it will be necessary to consider the decision of this Court in the case of Fundacio Privada Intervida (supra). This was a case where an application was made under section 24 of the said Act by the licensor. During pendency of the proceedings, the licensee vacated the licensed premises. A pursis was filed by the licensor acknowledging ::: Downloaded on - 09/06/2013 15:27:11 ::: 8 receipt of possession in which the licensor stated that he has right to recover the license charges, damages etc. The Competent Authority dropped the proceedings. An application for review of the said order was made by the licensor. The said application came to be rejected. A revision application was filed before the revisional authority which ended in an order of remand to the Competent Authority. The issue which was considered by this Court was whether the Competent Authority has jurisdiction to pass an order determining the compensation or damages.
Paragraphs 20 and 21 of the said decision read thus :-
"20. The concept of jurisdiction also needs consideration. Jurisdiction means authority to decide. Whenever a judicial Tribunal is required to inquire into a question of law or fact, for the purpose of giving decisions on it. The question whether the Tribunal has jurisdiction depends upon the section to which it owes its birth. The Tribunal empowered to determine claim under a particular legislation has the jurisdiction to determine all questions of law and fact relating to that claim subject to the provisions of the Act. Thus, a Tribunal like the one in this case, is empowered to determine claim for compensation for loss of office has a jurisdiction to determine all questions of law and fact relating to the measure of compensation. It does not exceed its jurisdiction by determining any such questions. Section 24 of the said Act, which lays, "notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of license; and on the failure of the licensee to so deliver possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired shall pass an order for eviction of a licensee." "Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages ::: Downloaded on - 09/06/2013 15:27:11 ::: 9 at double the rate of the licence fee or charge of the premises fixed under the agreement of licence."
21. The dissection of the above section makes it clear that any licensee, who does not deliver possession of the premises to the landlord on the expiry of the period of license and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority is liable to pay damages at double the rate of the license fee or charge of the premises fixed under the Agreement of Licence. Section 40 deals with the appointment of the Competent Authority for the purpose of exercising powers conferred, and for performing duties imposed, on him under the Act. If that be so the conjoint reading of sections 24 and 40 and the scheme of the said Act would make it absolutely clear that the Competent Authority is not only entitled to recover possession of the premises or dispossess the licensee but also has power to award compensation as contemplated under section 24(2) of the said Act. Thus, the power to determine an award and/or compensation and/or damages and/or monetary part of the liability is not only incidental to the power to evict but a specific duty coupled with power, to determine this liability, is bestowed on the Competent Authority. The Competent Authority vide its order dated 26th February, 2002 could not have dropped the proceedings without determining compensation or damages under section 24(2) of the said Act. Merely because possession was delivered by the license that by itself was not sufficient to take away jurisdiction of the Competent Authority to decide claim for damages. In my opinion, the view of the Competent Authority was based on mitaken reading of section 42. Even if possession is delivered by the licensor before initiation of the eviction proceedings till the Competent Authority will have jurisdiction to entertain and determine claim under section 24(2) of the said Act. In this view of the matter, the petition has no substance. The view taken in the impugned order by the revisional authority is in consonance with the provisions of the said Act."
(Emphasis added)
9. Therefore, this Court upheld the power and jurisdiction of the Competent Authority to pass an order of awarding the compensation as contemplated under sub- section (2) of section 24 of the said Act. In fact, ::: Downloaded on - 09/06/2013 15:27:11 ::: 10 this Court went to the extent of holding that in a given case where the licensee hands over possession of the licensed premises after expiry of the period of license, the competent authority has a jurisdiction to pass an order under sub-section 2 of section 24 of the said Act. In the circumstances, the first question will have to be answered in favour of the applicant by holding that the competent authority has a jurisdiction to pass an order directing the licensee to pay the damages under sub section (2) of section 24 of the said Act.
10. The next two questions formulated above will have to be considered now together. Before dealing with the submissions, what is held by this Court in paragraph 19 of the decision in the case of Fundacio Privada Intervida (supra) will have to be noted which reads thus :-
"19. The shortage of housing during the Second World War resulted in the power of the landlords to evict tenants and their freedom to fix rent for their premises. Since the shortage has been persisting, the control is still continuing and various statutes have been enacted by the States in India. The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as amended by the Maharashtra Rent Control Act, 1999 is one of such example. The statute empowers the State Government to appoint Courts and/or Competent Authority to decide disputes, such as fixation of standard rent and eviction of tenants. Before making any order that prejudicially affects any person, the authority under the said Act is required to give that person reasonable opportunity of being heard. In or before him, he has to follow as far as may be, the practice and procedure of a Court including the recording of evidence which means as far as possible the provisions of the Code of Civil Procedure are required to be followed. He is empowered to award such costs to any party as he considers reasonable. He has the powers of Civil Court under the Code of Civil Procedure when trying an application in respect of summoning and enforcing the attendance of any person ::: Downloaded on - 09/06/2013 15:27:11 ::: 11 and examining him on oath, requiring discovery and production of documents, etc. The orders passed under the said Act are executable, if passed by the Civil Court as a decree, and if passed by the Competent Authority, then that authority itself has been given the power to execute even by using such force as may be necessary to comply with the order of eviction." (Emphasis added) The conclusion of this Court was that the orders passed by the Competent Authority are executable as if passed by a Civil Court. The argument of the learned counsel for the respondent was that the only power conferred under section 24 of the said Act on the Competent Authority is to pass an order of eviction and there is no power vested to pass an order for payment of damages. What is held by this Court in the aforesaid decision is that an order passed by the competent authority is executable as if it was a decree passed by the Civil Court. Thus, there is a pronouncement of law by this Court that the orders of the competent authority are executable.
11. Before proceeding to consider the decision in the case of Prakash S. Jain (supra), certain decisions of this Court require attention of this Court. In the case of Mohammad Salam Anamul Haque Vs. S.A.Azmi and others [2001(1)-Mh.L.J.-249, the issue which arose for consideration of this Court was whether the orders passed by the School Tribunal established under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 are executable. This Court examined the scheme of the said Act of 1977. Under section 9 of the said Act of 1977, a remedy of an appeal to the School Tribunal is provided to an employee of a private school who has been dismissed or removed ::: Downloaded on - 09/06/2013 15:27:11 ::: 12 from the employment. Section 10 thereof lays down that for the purposes of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an Appellate Court under the said Code.
The learned Judge of this Court also dealt with section 12 of the said Act of 1977 which lays down that the decision of the Tribunal shall be final and no suit, appeal or other legal proceeding shall lie in any Court in respect of the matters decided by the Tribunal. This Court dealt with section 13 of the said Act of 1977 which is a penal provision for penalizing a person who fails to comply with the orders passed by the School Tribunal. This Court considered section 10 of the said Act of 1977 which conferred limited powers of the Appellate Court under the said Code on the School Tribunal. After considering the law on the aspect, the learned Single Judge of this Court recorded following conclusions :-
(i) When the Legislature expressly confers power, grant of that statutory power carries with by necessary implication the authority to make such grant effective;
(ii) Therefore, the Tribunal constituted under the said Act has all powers necessary to enforce its order;
(iii) An order made by the School Tribunal is an order within the meaning of the said Code;
(iv) a person who desires to execute an order of the School Tribunal ::: Downloaded on - 09/06/2013 15:27:11 ::: 13 has to approach the Tribunal for execution and then it is the duty of the Tribunal to either execute the order itself or if it is found necessary, to transfer it for execution to Civil Court in accordance with the provisions of the said Code.
12. The same issue was considered by a Full Bench of this Court in the case of St.Ulai High School and another Vs. Devendraprasad Jagannath Singh and another [2007(1)-Mh.L.J.-597. The Full Bench had an occasion to consider the scope of powers conferred on School Tribunal under the said Act of 1977. This Court considered the decision of learned Single Judge in the case of Mohammad Salam Anamul Haque (supra). Paragraph 12 of the decision of the Full Bench specifically deals with the powers to enforce the orders of the School Tribunal. After considering the law on the aspect, the Full Bench approved the decision in the case of Mohammad (supra) holding that the order passed by the Tribunal would satisfy the description of that expression in section 2(14) of the said Code. The Full Bench quoted following portion of the decision in the case of Mohammed (supra) with approval. What is approved by the Full Bench in the said decision reads thus:-
"Therefore, when the School Tribunal makes an order for reinstatement and for payment of back wages, the appellant in whose favour such an order is made can definitely approach the School Tribunal, which made the order for execution of that order in the same manner in which the decree under the provisions of the Civil Procedure Code is to be executed. In such situation either the tribunal may itself execute the decree or it may transfer the decree for execution to another Court in accordance with the provisions contained in the Civil Procedure Code.::: Downloaded on - 09/06/2013 15:27:11 ::: 14
It is thus clear to my mind that an order made by the School Tribunal is an order which is executable under the provisions of the Civil Procedure Code."
Thus, the law laid down by the Full Bench of this Court is that the School Tribunal which possesses certain powers under section 107 of the said Code can pass an order which can be termed as an order within meaning of sub section 2 of section 14 of the said Code.
13. Now, turning back to the provisions of the said Act, Chapter-VIII contains the procedure which applies to section 24 of the said Act. Under sub- section (2) of section 40 it is provided that a person can be appointed as a Competent Authority who has held the office which is not lower in rank than that of a Deputy Collector or who is holding or has held the post of a Civil Judge, Junior Division or who has been an advocate for not less than five years.
14. Under section 42 of the said Act it is provided that an application under section 24 is required to be signed and verified in the manner provided under Order VI of the said Code as if it were a plaint. Section 43 lays down the actual procedure. Sub- sections (4) and (5) of section 43 are relevant which read thus :-
"43. Special procedure for disposal of applications.-
(1) ... ... ...
(2) ... ... ...
(3) ... ... ...
::: Downloaded on - 09/06/2013 15:27:11 :::
15
(4) (a) The tenant or licensee on whom the summons
is duly served in the ordinary or by registered post in the manner laid down in sub- section (3) shall not contest the prayer for eviction from the premises, unless within thirty days of the service of summons on him as aforesaid, he files an affidavit stating grounds on which he seeks to contest the application for eviction and obtains leave from the Competent Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or his obtaining such leave, the Statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or the licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground aforesaid.
(b) The Competent Authority shall give to the tenant or licensee leave to contest the application if the affidavit filed by the tenant or licensee discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in section 22 or 23 or 24.
(c) Where leave is granted to the tenant or licensee to contest the application, the Competent Authority shall commence the hearing of the application as early as practicable and shall, as far as possible, proceed with the hearing from day to day, and decide the same, as far as may be, within six months of the order granting of such leave to contest the application.
(5) The Competent Authority shall, while holding an inquiry in a proceeding to which this chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence."
What is important is sub- section (5) which provides that the Competent Authority shall, while holding an inquiry in a proceeding under section 24, follow the practice and procedure of a Court of Small Causes including recording of evidence. Thus, the proceeding has to be initiated by an application which is required to be signed and verified as if it is a plaint and while holding an inquiry, a procedure which is followed by the Court of Small Causes while trying a suit has to be followed. Thus, the law ::: Downloaded on - 09/06/2013 15:27:11 ::: 16 contemplates trial of the application under section 24 as if it is a suit tried by a Court of Small Causes. Though there is no appeal provided against an order of recovery of possession, under section 44 a revision application is provided. There are other sections forming part of the said Chapter which provide that the competent authority shall be deemed to be a Civil Court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973.
15. There are two submissions made by the learned counsel for the respondent. The first submission is based on the decision of the Apex Court in the case of Prakash Jain (supra). The second submission is based on an order dated 23rd October 2008 passed by this Court in Notice of Motion No.193 of 2006 in Notice No.N/255/2006. The said Notice was taken out by the applicant invoking section 9(2) of the Presidency Towns Insolvency Act, 1909 (hereinafter referred to as "the said Act of 1909") on the ground that the order of the Competent Authority is a decree within the meaning of section 9(2) of the said Act of 1909.
16. It will be necessary to consider the decision of the Apex Court in the case of Prakash S. Jain (supra). The issue which arose for consideration of the Apex Court was whether the Competent Authority has power to condone the delay in applying for leave to defend contemplated by sub section 4(A) of section 43 of the said Act. What was considered by the Apex Court was a question whether the Competent Authority was a Court for the purposes of applicability of section 5 of Limitation Act, 1963.
::: Downloaded on - 09/06/2013 15:27:11 ::: 17No other issues such as nature of the order passed by the Competent Authority and whether an order of the Competent Authority is executable arose before the Apex Court. Heavy reliance has been placed by the learned counsel for the respondent on what is held in paragraph 12 of the said decision which read thus :-
"12. The provisions of Chapter VIII stand apart, distinctly and divorced from the rest of the Act except to the extent indicated therein itself and for that matter has been given overriding effect over any other provisions in the very Act or any other law for the time being in force, though for enforcement of other remedies or even similar remedies under the provisions other than Chapter VIII, altogether different procedure has been provided for. It is unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority constituted thereunder is not `Court' and the mere fact that such authority is deemed to be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either making the provisions of the Limitation Act, 1963 attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act. It is by now well settled by innumerable judgements of various Courts including this Court, that when a statute enacts that anything shall be deemed to be some other thing the only meaning possible is that whereas that the said thing is not in reality that something, the legislative enactment requires it to be treated as if it is so. Similarly, though full effect must be given to the legal fiction, it should not be extended beyond the purpose for which the fiction has been created and all the more when the deeming clause itself confines as in the present case, the creation of fiction for only a limited purpose as indicated therein. Consequently, under the very scheme of provisions enacted in Chapter VIII of the Act and the avowed legislative purpose obviously made known patently by those very provisions, the Competent Authority can by no means be said to be Court for any and every purpose and that too for availing of or exercising powers under the Limitation Act, 1963."::: Downloaded on - 09/06/2013 15:27:11 ::: 18
In earlier part of paragraph 12, the Apex Court has observed that mere fact that such authority is deemed to be a Court only for a limited and specific purpose cannot make it a Court for all or any other purposes. In the last part of paragraph 12 the Apex Court observed that the Competent Authority can by no means be said to be a Court for any or every purpose and that too for availing of exercising the powers under the Limitation Act, 1963. It must be borne in mind that under the said Act of 1999, a special procedure has been created for evicting a licensee. An agreement for leave and license relating to a license granted for residential use has been made compulsorily registrable under section 55(1) of the said Act. Even under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, in the year 1987, by an amendment, section 13(A)(2) was introduced which was pari materia with section 24 of the said Act. The Legislature had taken note of scarcity of accommodation in the metropolitan as well as in the bigger cities in the State of Maharashtra.
The intention for providing a speedy remedy of acquiring possession of licensed premises was to encourage the landlords to give the premises on leave and license.
17. As far as decision of the Apex Court in the case of Prakash S. Jain (supra) is concerned, the question which was examined by the Apex Court was whether a Competent Authority is a Civil Court for applicability of section 5 of the said Act of 1963. The issue whether an order passed by the Competent Authority is executable or not did not arise for consideration of the Apex Court. The learned counsel for the respondent ::: Downloaded on - 09/06/2013 15:27:11 ::: 19 contends that the ratio of the decision of the Apex Court is that for no purpose except those expressly specified in Chapter-VIII, The Competent Authority is a Civil Court. Therefore, it will be necessary to ascertain as to what is the ratio of the said decision. The legal position as regards law of precedents is well settled. For ready reference , a decision of the Apex Court in the case of State of Andhra Pradesh Vs. M.Radha Krishna Murthy [(2009)5-SCC-117] will have to be considered. Paragraphs 17 and 18 of the said decision are relevant which read thus :-
17.
"15. ... Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.
Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not inter- pret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at p. 761), Lord Mac Dermot ob- served:
'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of inter- pretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most dis- tinguished Judge....'
16. In Home Office v. Dorset Yacht Co. Ltd. Lord Reid said (AC at p. 1027 A-B) 'Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require quali- fication in new circumstances.' Megarry, J. in Shepherd ::: Downloaded on - 09/06/2013 15:27:11 ::: 20 Homes Ltd. v. Sandham (No. 2) observed: (AC at p. 1069 H) '... One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parlia-
ment....' And, in British Railways Board v. Herrington Lord Morris said: (AC p. 902 D) 'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be re-
membered that judicial utterances made in the setting of the facts of a particular case.'
17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a de- cision is not proper.
18. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
'Each case depends on its own facts and a close similarity between one case and an-
other is not enough because even a single significant detail may alter the entire as-
pect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to anoth-
er case is not at all decisive.' * * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of ob- structions which could impede it." (Emphasis added) Thus, what has been held by the Apex Court is that the observations of the Court are neither to be read as Euclid's theorem nor as provisions of the statute and that too taken out of their context. As stated earlier, the ::: Downloaded on - 09/06/2013 15:27:11 ::: 21 Apex Court in the case of Prakash H. Jain (supra) was never called upon to decide the issues as regards nature of the order passed by the Competent Authority and whether the order of the Competent Authority will fall within four corners of section 2(14) of the said Code. The ratio of the said decision is that the Competent Authority is not a Court insofar as the applicability of provision of section 5 of the Limitation Act, 1963 to sub-
section 4A of section 43 is concerned. Therefore, the said decision cannot be read as laying down ratio that the order of the Competent Authority passed under section 24 is not an order within the meaning of the said Code. As stated earlier, the Competent Authority has jurisdiction to pass an order granting damages in terms of section 24(2). There is no reason why the ratio of the decision of this Court in the case of Mohammad (supra) approved in the case of St.Ulai (supra) should not apply to an order of Competent Authority under the said Act.
18. Now turning to the decision of this Court dated 23rd October 2008 by which the insolvency notice taken out by the applicant was held as not maintainable, it must be noted here that the issue before the learned Single Judge was whether an order passed by the Competent Authority is a decree for the purposes of section 9 of the Presidency Towns Insolvency Act, 1909. In the context of the question whether the order becomes a decree or order within the meaning of section 9(2) of the said Act of 1909, this Court examined the case as is apparent from the fact that reliance was placed by this Court on the decision of Apex Court in the case of Paramjeet Singh Patheja Vs. ICDS Ltd. [JT-2006-(10)-SC-4]. In ::: Downloaded on - 09/06/2013 15:27:11 ::: 22 the said decision what was held by the Apex Court in paragraphs 17 and 41 read thus :-
17. We are of the view that the Presidency Towns In-
solvency Act, 1909 is a statute weighed down with the grave consequence of "civil death" for a person sought to be adjudged an insolvent and therefore the Act has to be construed strictly.
41. Issuance of a notice under the Insolvency Act is fraught with serious consequences: it is intended to bring about a drastic change in the status of the person against whom a notice is issued viz. to declare him an insolvent with all the attendant disabilities. Therefore, firstly, such a notice was intended to be issued only after a regularly consti-
tuted court, a component of the judicial organ estab- lished for the dispensation of justice, has passed a de- cree or order for the payment of money. Secondly, a notice under the Insolvency Act is not a mode of enfor-
cing a debt; enforcement is done by taking steps for execution available under CPC for realising monies.
(Emphasis added) The Apex Court held that while construing the provisions of the said Act of 1909 the Court has to consider the grave consequence of a civil death of a person sought to be adjudged as an insolvent. The Apex Court held that the provisions of the said Act of 1909 are, therefore, required to be construed strictly. The Apex Court was examining the question whether an award of an arbitrator was a decree or an order within the meaning of section 9(2) of the said Act of 1909. Thus, while passing the order dated 23rd October 2008 what is held by this Court is that the order of the Competent Authority is not a decree for the purposes of section 9 of the said Act of 1909 as the provisions of the said statute call for strict interpretation. Therefore, the ratio of the said decision is that the order was not covered by section 9(2) of the said Act of 1909. Therefore, even ::: Downloaded on - 09/06/2013 15:27:11 ::: 23 the said decision will not help the respondent.
19. At this juncture a useful reference will have to be made to the decision of the Apex Court in the case of Brijnandan Sinha Vs. Jyoti Narain (AIR-1956-SC-66). The Apex Court considered the essential ingredients necessary to constitute a Court. Paragraph 18 of the decision of the Apex Court reads thus :-
"18. It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgement which has finality and authoritativeness which are the essential tests of a judicial pronouncement."
(Emphasis added)
20. Now turning back to the provisions of the said Act, the Competent Authority is conferred with a jurisdiction to decide whether the license has expired. As pointed out earlier, for that purpose the proceedings are required to be commenced by an application which is required to be signed and verified as a plaint. The procedure which is followed by the Court of Small Causes trying a suit has to be followed while deciding an application under section 24. Section 47 of the said Act reads thus :-
"47. Bar of jurisdiction.- Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Competent Authority or the State Government or an officer authorised by it is empowered by or under this Act, to decide, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance ::: Downloaded on - 09/06/2013 15:27:11 ::: 24 of any power so conferred on the Competent Authority or the State Government or such Officer."
21. Section 47 shows that exclusive jurisdiction has been conferred on the competent authority to adjudicate upon the claim of a licensor to recover possession of the licensed premises on expiry of period of license either by efflux of time or by revocation thereof. Therefore, insofar as jurisdiction of the Competent Authority to pass final order of eviction and payment of compensation is concerned, the Competent Authority satisfies the tests laid down by Apex Court in the case of Brijnandan Sinha (supra).
In the circumstances the only conclusion which can be drawn is that the final order passed by the competent authority under sub-section (1) read with sub-section (2) of section 24 is an order within the meaning of section 2(14) of the said Code. By virtue of section 36 of the said Code, the said order can be executed as if it is a decree. Considering the law laid down by the Full Bench of this Court in the case of St. Ulai (supra), the Competent Authority can entertain an application for execution of the order in the same manner in which a decree under the provisions of the said Code is to be executed. The competent authority may itself execute the order or may transfer it for execution to a competent Civil Court in accordance with section 39 of the said Code.
22. Thus, the final conclusion is that the objection raised to the executability of the order of Competent Authority will have to be rejected and notice under Rule 22 of Order XXI of the said Code will have to be made absolute. Accordingly, Notice No.1099 of 2009 is made absolute.
::: Downloaded on - 09/06/2013 15:27:11 ::: 2523. At this stage learned counsel for the respondent prays for stay of the order. The order cannot be stayed, however, it is directed that the execution application will remain stayed till 1st March 2010.
(A.S.OKA, J.) ::: Downloaded on - 09/06/2013 15:27:11 :::