2010 Supreme(Bom) 280

High Court of Judicature at Bombay
F.I. REBELLO & THE HONOURABLE MR. JUSTICE J.H. BHATIA
Nusli Neville Wadia of Mumbai
Versus
The New India Assurance Co., Ltd., & Another
Writ Petition No.7946 of 2009
Decided on: 23-02-2010

Headnote:Public Premises (Eviction of Unauthorised Occupants) Act, 1971 - Section 5 - Bombay High Court (Appellate Side) Rules, 1960, Chapter 17, Rule 18(3) - Eviction petition - Dismissal of - Appeal - Dismissed by Principal Judge, City Civil Court - Challenged in writ petition - Respondents raised two preliminary objections as to maintainability of petition - Petition in terms of Rule 18(3) must be heard by single Judge - Against order passed in appeal, revision lies to High Court - Held - Availability of alternative remedy not exclude jurisdiction of High Court in entertaining writ petition - Preliminary objection as to jurisdiction of Division Bench rejected - Contention that Writ Court cannot exercise its extraordinary jurisdiction rejected - Matter be placed before Hon’ble Chief Justice for consideration. - Another aspect of Rule 18 of Chapter 17 which 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 Court’s opinion however, in other 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.

        The other issue which Court has to decide is, if an alternative remedy like revision lies, is the extraordinary jurisdiction excluded. What is the effect of the order passed in Writ Petition No. 6846 of 2006 Shri Mahesh N. Kothari and others. At the outset Court may first explain that it is not a judgment. The Bench merely declined to exercise jurisdiction. The Bench proceeded on the footing that from the order passed by the Principal Judge a revision would 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 the 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 alternative remedy does not exclude the jurisdiction of the High Court in entertaining a writ petition.

       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 designata and as such no revision would lie. Even otherwise, in Courts opinion, merely because a revision would lie by itself would not oust the extraordinary jurisdiction of the Court. Hence on that point Court is clearly of the view that an order declining to exercise jurisdiction on the ground of alternative 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.

       For the view to be taken Courts pass the following orders : -

       (1) The preliminary objection as to the jurisdiction of the Division Bench of the 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 extraordinary jurisdiction as a revision is available, as Court has held that the District Judge when acting as Appellate Authority acts as a persona designata and hence no 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 ab 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.