bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.2685 OF 1991 PETITION NO.2685 OF 1991 PETITION NO.2685 OF 1991 IN IN IN APPEAL APPEAL APPEAL NO.40 OF 1989 NO.40 OF 1989 NO.40 OF 1989 IN IN IN L.E. L.E. L.E. & C. SUIT NO.145/193 OF 1978 & C. SUIT NO.145/193 OF 1978 & C. SUIT NO.145/193 OF 1978 1A. Smt.Shalan w/o.Narayan Dappal 1B. Smt.Sonubai, mother of Narayan Eknath Dappal 1C. Pintu s/o.Narayan Dappal, Minor, M.G.Smt.Shalan w/o. Narayan Dappal Heirs & Legal Representatives of the deceased Narayan Eknath Dappal, All Indian Citizen, Adults, residing at Tankiwale Building, 4th Fl;oor, Dr.Maheshwari Road, Bombay - 400 009. 1D. Sarjerao Gyandeo Dappa, since deceased his Lrs. 1D(1) Smt.Laxmi Sarjerao Dappal 1D(2) Suryakant Sarjerao Dappal 1D(3) Chandrakant Sarjerao Dappal 1D(4) Shankar Sarjerao Dappal 1D(5) Dinkar Sarjerao Dappal ..Petitioners all of Satara, Indian (Original Inhabitant, R/o.381, Appellants Shaniwar Peth, Satara. Defendants) VERSUS VERSUS VERSUS The Board of Trustees of the Port of Bombay, a statutory Corporation incorporated under the Major Port Trusts Act, 1963 ..Respondents having their Head Office at (Original Shapurji Vallabhdas Marg, Plaintiffs & Bombay - 400 038. Respondents) Mr.V.Y.Sanglikar for the Petitioners Mr.U.J.Makhija with Mr.Parag Khandhar i/b. Mulla & Mulla for the Respondents. CORAM CORAM CORAM :- V.C.DAGA,J. :- V.C.DAGA,J. :- V.C.DAGA,J. :2: JUDGMENT JUDGMENT JUDGMENT RESERVED ON : RESERVED ON : RESERVED ON : 13TH OCTOBER, 2008 13TH OCTOBER, 2008 13TH OCTOBER, 2008 JUDGMENT JUDGMENT JUDGMENT PRONOUNCED ON : 13TH JANUARY, 2009 PRONOUNCED ON : 13TH JANUARY, 2009 PRONOUNCED ON : 13TH JANUARY, 2009 JUDGMENT JUDGMENT JUDGMENT (PER : V.C.DAGA,J.) (PER : V.C.DAGA,J.) (PER : V.C.DAGA,J.) 1. The un-successful Defendants in a suit, suffering from a decree of eviction from the suit premises, are the Petitioners herein. BACKGROUND FACTS: 2. The factual background of the dispute lies in a narrow compass and it is this: 3. The suit had been filed on 16th February, 1978 by the Plaintiffs/Respondents herein against the Original Defendant, being the Predecessors of the Petitioners under Section 41 of the Presidency Small Cause Courts Act, 1882 inter alia; seeking decree for eviction from the suit premises, arrears of compensation and mesne profits. 4. The suit was decreed on 2nd December, 1988. The Appeal against the said decree preferred by the Petitioners being Appeal No.40 of 1989 was dismissed on 22nd February, 1991. This judgment and decree is a subject matter of challenge in this Writ Petition filed under Article 227 of the Constitution of India. 5. During the pendency of the suit, the Public :3: Premises (Eviction of Unauthorised Occupants) Act, 1971 (for short the " Public Premises Eviction Act") came to be amended by the Act of 61 of 1980 effective from 20th December, 1980 with the result, the suit premises came to be included in the definition of "public premises" under Section 2(e)(v) of the said Act. 6. The solitary contention raised by the Petitioners in the Petition is that in view of the provisions of the said Public Premises Eviction Act the Court of Presidency Small Cause had lost its jurisdiction to try the suit. The reliance has been placed on Section 1(3) and Section 15 of the said Act. In other words, though the premises was within the sweep of the Presidency Small Cause Courts Act,1882 on the date of the institution of the suit, since the law has changed after the institution of the suit providing for special remedy for eviction from the suit premises, the Court of Small Cause had lost its jurisdiction to decide the said Lis. THE ISSUE 7. In view of the above contention, the main issue involved in this Petition pertains to the jurisdiction of the Court of Small Causes under Section 41 of the Presidency Small Cause Courts Act, 1882 with respect to the eviction of a tenant from :4: "public premises" STATUTORY PROVISIONS: 8. Before proceeding to recapitulate the oral as well as written submissions made by the rival parties to support their respective contentions, it is necessary to turn to the relevant statutory provisions of law in this regard. . Section 2(e)2(v), 5, 13 and 15 of the said Act read as under: 2(e) "public premises" means - 2(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963). 5.5.5. Eviction of unauthorised occupants: Eviction of unauthorised occupants: Eviction of unauthorised occupants: (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and [any evidence produced by him in support of the same and after personal hearing, if any, given under clause (b) of sub-section (2) of Section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises. (2) If any person refuses or fails to comply with the order of eviction [on or before the date specified in the said order or within fifteen days of the date of its publication under sub-section (1), whichever is later], the estate officer or any other officer duly authorised by the estate officer in this behalf [may after the date so specified or after the expiry of the period aforesaid, whichever is later, evict that person] from, :5: and take possession of the public premises and may, for that purpose, use such force as may be necessary. 13. 13. 13. Liability Liability Liability of of of heirs heirs heirs and legal and legal and legal representatives; representatives; representatives; (1) Where any person against whom any proceeding for the determination of arrears of rent or for the assessment of damages [or for the determination of the amount payable by way of interest on such arrears of rent or damages] is to be or has been taken dies before the proceeding is taken or during the pendency thereof, the proceeding may be taken or, as the case may be, continued against the heirs or legal representatives of that person. [(1-A) Where any person from whom any cost of removal of any building or other structure or fixture, or, as the case may be, any goods, cattle or other animal is to be recovered under sub-section (2) [or sub-section (3)] of Section 5-A, or any expenses of demolition are to be recovered under sub-section (5) of Section 5-B, dies before any proceeding is taken for the recovery of such cost or during the pendency thereof, the proceeding may be taken or, as the case may be, continued against the heirs or legal representatives of that person.] (2) Any amount due to the Central Government or the [statutory authority] from the person whether by way of arrears of [rent or damages or costs of removal referred to in Section 5-A or expenses of demolition referred to in Section 5-B or interest referred to in sub-section (2-A) of Section 7 or any other cost] shall, after the death of the person, be payable by his heirs or legal representatives but their liability shall be limited to the extent of the assets of the deceased in their hands. 15. 15. 15. Bar of jurisdiction: Bar of jurisdiction: Bar of jurisdiction: No court shall have jurisdiction to entertain any suit or proceeding in respect of - (a) the eviction of any person who is in unauthorised occupation of any public premises, or (b) the removal of any building, structure or fixture or goods, cattle or other animal from any public premises under Section 5-A, or :6: (c) the demolition of any building or other structure made, or ordered to be made, under Section 5-B, or [(cc) the sealing of any erection or work or of any public premises under Section 5-C, or] (d) the arrears of rent payable under sub-section (1) of Section 7 or damages payable under sub-section (2), or interest payable under sub-section (2-A), of that section, or (e) the recovery of - (i) costs of removal of any building, structure or fixture or goods, cattle or other animal under Section 5-A, or (ii) expenses of demolition under Section 5-B, or (iii) costs awarded to the Central Government or statutory authority under sub-section (5) of Section 9, or (iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.] RIVAL CONTENTIONS : 9. Mr.Sanglikar Learned Counsel for the Petitioners urged that during the pendency of the suit, the Public Premises Eviction Act was amended by Act of 61 of 1980 with effect from 20th December, 1980 and the suit premises were included in the Definition of Public Premises under Section 2(e)2(v) of the said Act having retrospective effect as such the Small Cause Court had no jurisdiction to decide the eviction proceeding filed in respect of the suit premises after 1980, as such the impugned judgment and decree is liable to be set aside. :7: 10. Mr.Sanglikar further urged that if the premises are public premises, Rent Act has no application. In his submission Public Premises Eviction Act prevails over the Rent Act. Reliance is placed upon the judgment of the Apex Court in the case of Ashoka Marketing Ltd. and Anr. Vs. Punjab Ashoka Marketing Ltd. and Anr. Vs. Punjab Ashoka Marketing Ltd. and Anr. Vs. Punjab National National National Bank and Ors. AIR 1991 SC 855 Bank and Ors. AIR 1991 SC 855 Bank and Ors. AIR 1991 SC 855 and Kaiser-I-Hind Kaiser-I-Hind Kaiser-I-Hind Pvt. Ltd. and Anr. Vs. National Pvt. Ltd. and Anr. Vs. National Pvt. Ltd. and Anr. Vs. National Textile Textile Textile Corporation Corporation Corporation (Maharashtra North) Ltd. and Ors. (Maharashtra North) Ltd. and Ors. (Maharashtra North) Ltd. and Ors. (2002) (2002) (2002) 8 SCC 182 8 SCC 182 8 SCC 182 and Crawford Bayley & Co. and Ors. Crawford Bayley & Co. and Ors. Crawford Bayley & Co. and Ors. Vs. Vs. Vs. Union of India and Ors. (2006) 6 SCC 25 Union of India and Ors. (2006) 6 SCC 25 Union of India and Ors. (2006) 6 SCC 25. 11. Mr.Sanglikar submits that the Special Law would prevail over General Law. As a consequence he submits that the Public Premises Eviction Act would prevail over existing Small Cause Court Act. In his submission both the Courts below have committed manifest error in rejecting the contention leading to the issue of jurisdiction of the Small Cause Court, raised by the Petitioners on the touch stone of Section 15 of the Public Premises Eviction Act. 12. Mr.Sanglikar, relying upon the land-mark decision in Anisminic Ltd. Vs. The Foreign Anisminic Ltd. Vs. The Foreign Anisminic Ltd. Vs. The Foreign Compensation Compensation Compensation Commission and Anr. (1969) 1 ALL Commission and Anr. (1969) 1 ALL Commission and Anr. (1969) 1 ALL E.R.208, E.R.208, E.R.208, submits that the said decision has considerably changed the legal composition and virtually assimilated the distinction between lack of jurisdiction and erroneous exercise of jurisdiction. :8: In his submission, the Courts of limited jurisdiction must have jurisdiction over Lis not only when the Lis is initiated but also when it is decided. He also pressed into service two judgments of the Apex Court, one in the case of Union of India Vs. Tarachand Gupta Union of India Vs. Tarachand Gupta Union of India Vs. Tarachand Gupta & Bros. AIR 1971 SC 1558 Bros. AIR 1971 SC 1558 Bros. AIR 1971 SC 1558 and another in the case of Shri.M.L.Sethi Shri.M.L.Sethi Shri.M.L.Sethi Vs. Shri.R.P.Kapur AIR 1972 SC 2379, Vs. Shri.R.P.Kapur AIR 1972 SC 2379, Vs. Shri.R.P.Kapur AIR 1972 SC 2379, to contend that the ratio laid down by the House of Law in Anisminic Ltd. (Supra) has been approved by the Apex Court. 13. In nutshell, Mr.Sanglikar submits that the Small Cause Court had no jurisdiction to decide the eviction proceeding filed in respect of the suit premises after 21st December,1980 and that the Appellate Court ought to have taken into account the said settled legal position and should have dismissed the suit treating the Appeal being continuation of the suit. He, thus, submits that the impugned judgment and decree is liable to be quashed and set aside and the suit is liable to be dismissed with costs. 14. Mr.Sanglikar placed reliance on number of other judgments to buttress his submissions. It is not necessary to refer them at this stage, since relevant portions of them are being considered in the later part of this order. 15. Per contra Mr.Makhija learned Counsel :9: appearing for the Respondents urged that Section 15 is not retrospective. It is prospective in application. It does not provide that after coming into effect the amendment in the said Act, pending suits and/or proceedings would have to be transferred to the appropriate forum under the Public Premises Eviction Act and that the Court considering the matter would be ousted of its jurisdiction to proceed further with such suits or Appeals. In his submission, wherever such an effect is sought the Amending Act itself provides that all pending proceedings would be taken out of the Forum in which they are filed and transferred to the new Forum. Examples of this kind are shown referring to Section 27 of the Railways Act, Section 31 of the Recovery of Debts Due to Bankers and Financial Institutions Act,1963 and Section 15 of the Maharashtra Employees of Private Schools (Conditions of Service) Act, 1977. 16. Mr.Makhija further submits that during the pendency of the Appeal, the Forum under the Public Premises Eviction Act had been created as such the Appellate Court was not bound to refer the matter to the Forum created under that Act or dismiss the Appeal on the ground that the Appellate Court had no jurisdiction from that date. He submits that the jurisdiction of the Appellate Court (Forum/Tribunal) is determined at the time when the Lis is initiated or instituted. An Appeal being a statutory right the :10: Appellate Forum was determined under the Statute under which the original suit was filed. Therefore, the appellate forum provided for under the Presidency Small Cause Courts Act for filing an appeal against a decree passed in the proceeding under Section 41 was the only Court available for filing appeal. 17. Mr.Makhija also submits that the Estate Officer was not vested with the right to hear Appeals from a decree already passed by the Court of Small Causes. Therefore, there was no question of transferring the Appeal to the Estate Officer. 18. Mr.Makhija further contends that the right of Appeal is not a mere matter of procedure but is a substantive right. Institution of suit carries with it the implication that all rights of Appeal then in force are preserved to the parties thereto till rest of the career of the suit. Right of appeal is vested and such a right to enter the superior Court accrues to a litigant and exists as on and from the date the lis commences although it may be actually exercised when the judgment is pronounced. Such a right is to be governed by law prevailing at the date of institution of the suit or proceeding and not by the law that prevails on the date of its decision. Such a vested right cannot be taken away except by express enactment or necessary intendment. The intention to interfere with or to imperil such a vested right :11: cannot be presumed unless such an intention is clearly manifested by express words or necessary implication. In support of his submission, he relied on the judgments in the case of : Garikapati Veeraya Vs. Garikapati Veeraya Vs. Garikapati Veeraya Vs. N.Subbiah N.Subbiah N.Subbiah Choudhary Choudhary Choudhary and Ors. AIR 1957 SC 540, and Ors. AIR 1957 SC 540, and Ors. AIR 1957 SC 540, He also relied on the decision of the Hon’ble Supreme Court in the case of Messrs Hoosein Kasam Dada (India) Ltd. Messrs Hoosein Kasam Dada (India) Ltd. Messrs Hoosein Kasam Dada (India) Ltd. Vs. Vs. Vs. The State of Madhya Pradesh and Ors. AIR 1953 SC The State of Madhya Pradesh and Ors. AIR 1953 SC The State of Madhya Pradesh and Ors. AIR 1953 SC 221 221 221. Mr.Makhija also placed reliance on the decision in the case of State of Bombay Vs. M/s.Supreme State of Bombay Vs. M/s.Supreme State of Bombay Vs. M/s.Supreme General General General Films Exchange Ltd. AIR 1960 SC 980 Films Exchange Ltd. AIR 1960 SC 980 Films Exchange Ltd. AIR 1960 SC 980; in support of his submission. 19. In the submission of Mr.Makhija it cannot be contended that the decree which had already been passed has become infructuous or be set aside or be non est inasmuch as there is no provision in the Public Premises Eviction Act that the decrees passed earlier against which Appeals are pending would be affected and that a new procedure would have to be adopted by a person who already held a decree under the existing law. According to him there is no destruction of the right of Appeal against an existing decree as a consequence of Section 15 of the Public Premises Eviction Act. 20. Mr.Makhija submits that the words "suit" or "proceedings" do not ordinarily indicate the Appellate proceedings. In his submission Section 15 of the :12: Public Premises Eviction Act has used the words "suit" or "proceedings" as such it will be reasonable to exclude appellate proceedings. Reliance is placed on Dewaji Dewaji Dewaji Vs. Ganpatlal AIR 1969 SC 560 Vs. Ganpatlal AIR 1969 SC 560 Vs. Ganpatlal AIR 1969 SC 560. 21. Mr.Makhija also relied on United Bank of United Bank of United Bank of India, India, India, Calcutta Calcutta Calcutta Vs. Abhijit Tea Co.Pvt.Ltd. and Ors. Vs. Abhijit Tea Co.Pvt.Ltd. and Ors. Vs. Abhijit Tea Co.Pvt.Ltd. and Ors. AIR AIR AIR 2000 SC 2957 2000 SC 2957 2000 SC 2957, to contend that wherever statute uses the words no suit shall be "entertained" or instituted in regard to a particular statute then such provision does not affect the pending actions and such Law is only prospective. He, thus, prayed for dismissal of the petition with costs. CONSIDERATION: 22. One must concede that the term "jurisdiction" has not been defined in the Code. What is then meant by jurisdiction ? The expression "jurisdiction" is a verbal cast of many colours. In Karthiayani Vs. Karthiayani Vs. Karthiayani Vs. Neelcanta Neelcanta Neelcanta AIR 1969 Ker 280 AIR 1969 Ker 280 AIR 1969 Ker 280, the High Court of Kerala stated; "The expression "jurisdiction" is used in different senses. In the sense of inherent jurisdiction, it is a virtue of the Court and is not dependent on the consent or dissent of the parties, and its lack would make orders and decisions ultra vires, null and void and therefore challengeable even in collateral proceedings. On the other hand, in the sense of pecuniary jurisdiction or territorial jurisdiction, which sets the limits of exercise of the powers of a Court it is waivable by the parties - such waiver will be presumed conclusively under Section 21 CPC and :13: Section 11 of the Suits Valuation Act if objection is not taken before settlement of issues for trial and its want would make the decision, at the worst, only voidable in an appeal but unchallengeable in collateral proceedings." . In Halsbury’s Laws of England, 4th Edition, Volume 10, Para 715, it is stated: By jurisdiction is meant authority by which a Court has to decide matters that are litigated before it, or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by Statute or Charter or Commission under which the Court is constituted and may be extended or restricted by similar means. If no restriction or limitation is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind of nature of the actions or the matters of which a particular Court has cognisance or as to the area over which the jurisdiction extends, or it may partake of both these characteristics. 23. In Official Trustee, W.B. Vs. Sachindra AIR Official Trustee, W.B. Vs. Sachindra AIR Official Trustee, W.B. Vs. Sachindra AIR 1969, 1969, 1969, SC 823, SC 823, SC 823, the Apex Court approved the meaning of expression "jurisdiction". In the leading case of Hirday Hirday Hirday Nath Vs. Ramchandra AIR 1921 Cal 34, Nath Vs. Ramchandra AIR 1921 Cal 34, Nath Vs. Ramchandra AIR 1921 Cal 34, speaking for the Full Bench, Mukherjee, ACJ also stated: "This jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter is obviously of a fundamental :14: character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction; ’for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all not the decision rendered therein is what makes up jurisdiction", and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction." 24. Thus, the jurisdiction of Court means the extent of authority to Court to administer jurisdiction prescribed with regard to the pecuniary value and legal limitation reiterated by the Apex Court in the case of Ujjam Bai Vs. State of U.P. AIR Ujjam Bai Vs. State of U.P. AIR Ujjam Bai Vs. State of U.P. AIR 1962 1962 1962 SC 1621 and Raja Soap Factory and Ors. Vs. SC 1621 and Raja Soap Factory and Ors. Vs. SC 1621 and Raja Soap Factory and Ors. Vs. S.P.Shantharaj S.P.Shantharaj S.P.Shantharaj and Ors. and Ors. and Ors. AIR AIR AIR 1965 SC 1449. 1965 SC 1449. 1965 SC 1449. 25. Mr.Sanglikar is perfectly justified in relying upon the land-mark decision in Anisminic Ltd. (Supra) to submit that the said decision has changed the legal position considerably and virtually assimilated the distinction between lack of jurisdiction and erroneous exercise thereof. As indicated by Mathew, J. in M.L.Sethi (Supra), the effect of the dicta in Anisminic Ltd. is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to a vanishing point. The observations of the Apex Court in this regards read as under:- The practical effect of the decision is that any error of law can be reckoned as :15: jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "imposing an unwarranted condition" or "addressing themselves to a wrong question". The majority opinion in that case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the