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SUPREME COURT OF INDIA
Dipak Misra, CJI., Amitava Roy, A.M. Khanwilkar, JJ.
Life Insurance Corporation of India – APPELLANT
Versus
Nandini J. Shah & Ors. – RESPONDENTS
CIVIL APPEAL NO. 15536 OF 2017 (Arising out of SLP (Civil) No.11348 of 2013)
Decided On : 20-02-2018
(1978) 1 SCC 27; (1995) 5 SCC 5; (1971) 3 SCC 602; (1991) 2 SCC 637; (1961) 3 SCR 495; 1966 Supp. SCR 393 – Relied upon
2012 (4) Bom. C.R.1; Writ Petition No.6846 of 2005 (Mah); 1925 B.L.R. 519; AIR 1931 Bombay 582; (1979) DLT 108; (1955) 2 SCR 1013 : AIR 1956 SC 153; AIR 2002 Allahabad 238; 2001 (2) Guj. L.R. 1120; AIR (37) 1950 East Punjab 181; 1925 B.L.R. 519; AIR 1931 Bombay 582; 1987 Allahabad Law Journal 179 – Distinguished
(2017) 5 SCC 533; (1967) 3 SCR 163; (1955) 2 SCR 955; 2010 (2) Mh. L.J. 978; AIR 1947 Madras 400; AIR 1968 Kerala 240; AIR 1935 Madras 673; AIR 1946 Bombay 64; AIR 1933 Bombay 105; AIR 1931 Bombay 582; (1974) II Madras LJR 44; AIR 1959 AP 129; AIR 1971 J&K 76; AIR 1943 Calcutta 247; AIR 1968 AP 22; AIR 1989 AP 258; AIR 1968 SC 384; AIR 1958 SC 947; AIR 1967 SC 1; 44 IA 261 – Referred
(b) Public Premises (Eviction of Unauthorised Occupants) Act, 1971 – Section 9 – Absence of procedure to be followed by Appellate Officer – Does not make him persona designata – Held, procedures governed by the Act and Rules framed thereunder as also the enactment creating the judicial authority and doctrine of fairness in affording opportunity – Maharashtra Civil Courts Act and City Civil Courts Act. (Para 41)
(c) Public Premises (Eviction of Unauthorised Occupants) Act, 1971 – Section 9 and Article 227, Constitution of India – Order passed u/s 9 – Remedy lies under Article 227 – Hence LPA against order of Single Judge not maintainable. (Para 46, 50, 51)
(1995) 5 SCC 5; (1996) 2 SCC 132; (1961) 3 SCR 495; (2015) 5 SCC 423; (2015) 9 SCC 1 – Relied upon
(1999) 2 MP LJ 221; (1996) 3 Kant LJ 86; ILR (1924) 47 Mad 369 – Cited with approval
Facts of the case:
The appellant initiated eviction case against the respondents before the Estate Officer under Sections 5 and 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for eviction of the respondents from the licenced premises, recovery of damages and recovery of arrears towards repairs and maintenance charges.
The Estate Officer held that respondent No.1 was not in arrears of repairs and maintenance charges as alleged by the appellant. However, it held that respondent No.1 had unauthorisedly sub-let the premises to respondent Nos.2 to 5. The Estate Officer also held that the appellant was entitled to damages from the respondents at the rate of Rs.48,142/- per month from 1st December, 2004 till restoration of possession with simple interest at the rate of 9% per annum.
The Appellate Officer upheld the order of eviction passed by the Estate Officer and the order for damages along with interest.
The learned Single Judge of the High Court dismissed the Writ Petition filed by respondent Nos.1 and 2.
The Division Bench of the High Court rejected the preliminary objection of the appellant that the Letters Patent Appeal was not maintainable against the order of the learned Single Judge and also allowed the appeal on merits.
Finding of the Court:
Appellate officer u/s 9 is not a persona designata.
Remedy against order passed u/s 9 lies under Article 227. Hence LPA against order of Single Judge is not maintainable.
Result: Appeal allowed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
JUDGMENT
A.M. Khanwilkar, J.
1. The seminal question posed in this appeal, by special leave, is whether the order passed by the City Civil Court in exercise of power under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer, is in the capacity of a Civil Court or persona designata?
2. When this special leave petition was listed for admission on 12.09.2017, the Court passed the following order :
“Heard Mr. Ranjit Kumar, learned Solicitor General appearing on behalf of the petitioner and Ms. Sonal, learned counsel appearing on behalf of the respondents.
As the issue was to be debated with regard to the maintainability of the Letters Patent Appeal, learned Solicitor General has placed reliance on Radhey Shyam & Anr. vs. Chhabi Nath & Ors., (2015) 5 SCC 423 and Ram Kishan Fauji vs. State of Haryana & Ors., (2017) 5 SCC 533.
Ms. Sonal, learned counsel representing the respondents, would contend that there is no quarrel about the proposition that when a challenge is made to the order passed by the Civil Court in a writ proceeding, it has to be treated as a proceeding under Article 227 of the Constitution of India and, therefore, no Letters Patent Appeal would lie. But in a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the Estate Officer cannot be considered as a Court and further the appellate forum would decide the appeal under Section 9 of the Act as the appellate officer and as per the decision rendered by the Division Bench of the Bombay High Court in Nusli Neville Wadia vs. New India Assurance Co. Ltd., 2010 (2) Mh.L.J.978, which has placed reliance on a judgment of the Delhi High Court in N.P.Berry vs. Delhi Transport Corporation and Anr. 15(1979) DLT 108 (para 19), it is not a Civil Court and therefore, the order passed by the said appellate forum can be challenged under Sections 226 and 227 of the Constitution of India and in that event, an intra-court appeal would be maintainable.
List for further hearing on 21.09.2017.”
The hearing on admission of the special leave petition continued on 21.09.2017 when the Court passed the following order :
“Leave granted.
Heard Mr.Ranjit Kumar, learned senior counsel for the appellant and Ms.Sonal for the respondents.
In the course of hearing Mr.Ranjit Kumar, learned senior counsel appearing for the appellant submitted that
Letters Patent Appeal at the instance of the respondents before the High Court of Judicature at Bombay was not maintainable.
Ms.Sonal, learned counsel appearing for the respondents has, per contra, argued that the appeal was maintainable. As we have heard the matter at length with regard to maintainability of the Letters Patent Appeal before the Division Bench of the High Court, it is appropriate to render a judgment.
In view of the aforesaid, judgment is reserved.
Learned counsel for the parties shall submit written submissions by 3rd October, 2017.”
3. By this judgment, we shall answer the preliminary issue as to whether the Letters Patent Appeal filed by the contesting respondents before the High Court of Judicature at Bombay against the decision of the learned Single Judge rendered in a writ petition (purportedly filed under Articles 226 and 227 of the Constitution of India), questioning the correctness and validity of the decision of the City Civil Court, Mumbai in Miscellaneous Civil Appeal No.121 of 2011 dated 03.04.2012, which was affirmed by the learned Single Judge, was maintainable.
4. We may now advert to the brief factual background giving rise to this appeal: On or around 2nd May 2005, the appellant initiated eviction Case No. 21 and 21A of 2015 against the respondents before the Estate Officer under Sections 5 and 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short “the Act”) for eviction of the respondents from the licenced premises on 3rd floor, 49-55, Bombay Samachar Marg, Fort, Mumbai 400023 admeasuring about 258 sq. ft. including a ba
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