JUDGMENT :

Civil Misc. Application No.14 of 2021

1. Heard Sri Ashish Mishra, learned counsel for the petitioner, Sri Rahul Jain, learned counsel for the respondent nos.1 to 8 and learned Standing Counsel for the respondent no.9.

2. The instant application has been filed with a prayer to issue appropriate direction permitting the petitioner to get the premises vacated from such private-respondents and other contract persons, who have attained age of superannuation and are no longer associated with the petitioner in any manner whatsoever.

3. Sri Rahul Jain, learned counsel for the respondents, has placed reliance upon the judgment of Apex Court in Life Insurance Corporation of India v. Nandini J. Shah reported in (2018) 15 SCC 356 and submits that against the order passed by the appellate court exercising appellate jurisdiction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, the writ petition under Article 226 of the Constitution of India is not maintainable and the party aggrieved may avail the remedy of filing petition under Article 227 of the Constitution of India. He further contends that miscellaneous application filed in the writ petition under Article 226 of the Constitution of India is also not maintainable.

4. Sri Ashish Mishra, learned counsel for the petitioner submits that at this stage he is pressing only his application dated 24.12.2021 and insofar as the maintainability of the writ petition under Article 226 of the Constitution of India is concerned, the same is also maintainable as held by Hon'ble Supreme Court in the case of “Kiran Devi Vs. Bihar State Suni Wakf Board and others (2021 SCC Online SC 280).

5. Sri Rahul Jain, placing reliance upon the judgment of Apex Court in the case of Life Insurance Corporation of India (supra), referred to paragraph nos.48, 49 & 50 of the same which are reproduced hereinbelow:-

“48. Even though the respondents have invited our attention to other decisions of High Courts and also of Supreme Court which have analysed the provisions of other legislations, it is unnecessary to dilate on those decisions as we intend to apply the principles underlying the decisions of three-Judge Bench of this Court in Thakur Das (supra), Asnew Drums Pvt. Ltd. (supra), Maharashtra State Financial Corporation (supra), Ram Chander Aggarwal (supra) and Mukri Gopalan (supra), in particular, to conclude that the Appellate Officer referred to in Section 9 of the 1971 Act, is not a persona designata but acts as a civil court.

49. In other words, the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge). Being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction.

50. Reverting to the facts of the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of our conclusion that the order passed by the District Judge (in this case, Judge, Bombay City Civil Court at Mumbai) as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. Moreover, on a close scrutiny of the decision of the learned Single Judge of the Bombay High Court dated 14.08.2012 we have no hesitation in taking the view that the true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of India; and there is no indication of Court having exercised powers under Article 226 of the Constitution of India as such.