Case: Life Insurance Corporation of India Vs. Nandini J. Shah &amp; Others

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 respondentsAs 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, ant appeal would be maintainableList for further hearing on 21.09.2017The hearing on admission of the special leave petition continued on 21.09.2017 when the Court passed the following order :Heard Mr.Ranjit Kumar, learned senior counsel for the appellant and Ms.Sonal for the respondentsIn 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 maintainableMs.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 judgmentIn view of the aforesaid, judgment is reservedLearned counsel for the parties shall submit written submissions by 3rd October, 20174. 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,, Bombay Samachar Marg, Fort, Mumbai 400023 admeasuring about 258 sq. ft. including a balcony of 38 sq. ft., recovery of damages and recovery of arrears towards repairs and maintenance charges amounting to Rs.. The eviction was sought on two grounds: (a) respondent No.1 had illegally and unauthorisedly sublet, assigned or transferred the licenced premises or part thereof to a partnership firm (respondent No.2) and three companies (respondent Nos. 3 to 5); and (b) respondent No. 1 was in arrears of repair and maintenance charges amounting to Rs. 1364/5. Respondent Nos.1 and 2 filed their Reply, stating inter alia that respondent No.1?s grandfather Shri P.T. Shah was the original tenant of the premises since before 1937. At that time, the building in which the premises are situated was owned by thee of the appellant. Respondent Nos.1 and 2 traced the devolution of rights in the premises and pointed out that respondent No.2 was a partnership firm of thew of the original tenant, her daughter (present respondent No.1), Shri R.C. Vakharia and Shri K.C. Vakharia. It was also pointed out that respondent No.3 was never incorporated and it never came into existence. It was further pointed out that respondent Nos.4 and 5 were private limited companies wholly owned by the family members of the original tenant, in which the 100% shareholding and all the directors were thew of the original tenant and her immediate family members viz., thew of the original tenant, her daughter, her, assignment or transfer of the premises or any part thereof to respondent Nos.2 to 5 was denied. Respondent No.1 asserted that she was in occupation, control and possession of the premises and regularly paid rent of Rs. 895/per month to the appellant. It was also pointed out that respondent No.1 was not in any arrears. The calculation of damages was seriously disputed. Respondent Nos.3 to 5 did not appear before the Estate Officer. Evidence was led before the Estate Officer by the appellant and respondent Nos.1 and 26. By its Order dated 5th February 2011, 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 unauthorisedlythe 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 annum7. Respondent Nos.1 and 2 challenged the aforesaid order of the Estate Officer before the Appellate Officer under Section 9 of the Act, being the designate of the Principal Judge of the City Civil Court at Mumbai. The appellant did not challenge the finding of the Estate Officer insofar as he had held that respondent No.1 was not in arrears of repairs and maintenance charges. The said finding has become final8. By its order dated 3rd April, 2012, the Appellate Officer held that (a) there was no subletting to the partnership firm (respondent No.2), as it was established that it was the firm of the original occupant and (b) there was nothing to show that respondent Nos.3 to 5 also belonged to the original occupant as no document was produced showing their constitution and hence, it amounted to subletting. The Appellate Officer upheld the order of eviction passed by the Estate Officer and the order for damages along with interest9. Respondent Nos.1 and 2 challenged the aforesaid orders of the Estate Officer and the Appellate Officer before the learned Single Judge of the Bombay High Court by way of Writ Petition No.4337 of 2012. Respondent Nos.1 and 2 prayed for issuance of a Writ of Certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Articles 226 and 227 of the Constitution of India and to set aside the Judgment and Orders of the Appellate Officer and the Estate Officer. The appellant did not challenge the finding of the Appellate Officer insofar as it had held that there was no subletting by respondent No.1 to the partnership firm (respondent No.2). The said finding has become final10. By its order dated 14th August 2012, the learned Single Judge of the Bombay High Court dismissed the aforesaid Writ Petition filed by respondent Nos.1 and 2 by holding that respondent Nos.3 to 5 are separate legal entities; the authorities below had concurrently held that the appellant had established its case in that behalf and that no material was produced before it for taking a different view in the matter11. Respondent Nos.1 and 2 challenged the aforesaid order of the learned Single Judge before the Division Bench of the Bombay High Court vide Letters Patent Appeal No.181 of 201212. The Division Bench of the Bombay High Court by its Order dated 12th October, 2012, 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 holding that documents showing that 100% shareholding of respondent Nos.4 and 5 belonged to the occupant and her immediate family members and that all the directors of respondent Nos.4 and 5 were the occupants and immediate family members, were on record, which fact has not been taken into consideration by the Appellate Officer. The Division Bench held that by lifting the corporate veil, it can be seen that the companies are alter egos of the occupant and that there is no subletting to the Companies13. On the question of maintainability of the Letters Patent Appeal, the Division Bench of the High Court answered the same in the following words:13. Firstly we will deal with the contention regarding maintainability of this Letters Patent Appeal. Learned counsel for the Respondents urged that earlier writ petitions challenging the orders passed in proceedings under the Public Premises Act were being entertained by the Division Bench and after the decision of the Full Bench of this Court in the case of M/s. Prakash Securities Private Limited V/s. LIC of India [2012 (4) Bom. C.R.1] dated 26 April 2012, they are now being placed before the Single Judge. He contended that if the appeal is entertained from the orders passed by the learned Single Judge in such petitions, then the object of amending rules for hearing of such petitions by the Single Judge for expeditious disposal will be lost. Learned counsel for appellants on the other hand has drawn our attention to the memo of the petition and the impugned order of the learned Single Judge wherein it is mentioned that the petition is filed and was entertained under Articles 226 & 227 of the Constitution of India, and contended that therefore the appeal is maintainable14. It is true that the petitions arising out of the order passed under the Public Premises Act were being heard by the Division Bench. This was being done due to observation of the Division Bench of this Court in the case of Nusli Neville Wadia V/s. New India Assurance Co. Ltd. & Another [2010 (4) Bom. C.R. 807]. However by an order dated 15 November 2011, another Division Bench of this Court expressed doubt about the correctness of the observation made in the case of Nusli Neville Wadia (supra) and referred the issue as to whether the petitions arising out of the orders passed under the Public Premises Act should be heard by the Division Bench or Single Judge, to the Full Bench for consideration. The Full Bench in the case of Prakash Securities [2012 (4) Bom. C.R. 1] (supra) found that clause 3 of the Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules 1960 was wide enough to include orders passed by any quasijudicial authority under any enactment, even if such explanation is not covered by clause 1, 2, 4 to 43 of Rule 18. The Full Bench found that the order passed by quasijudicial authority under the Public Premises Act is also covered by Rule 18 (3) so as to indicate that the petitions under Articles 226 & 227 of the Constitution of India challenging such orders are to be heard and decided by the Single Judge. Reference was accordingly disposed of by the Full Bench by its judgment dated 26 April 2012. The Full Bench held that the Appellate Side Rules as they stand, provide that the petitions challenging the orders passed under the Public Premises Act are required to be heard by the learned Single Judge and therefore the observations made in the case of Nusli Neville Wadia (supra), were not correct. The petitions relating to orders passed under Public Premises Act were being entertained by the Division Bench when the rules provided that they should be entertained by the Single Judge. Therefore there was no conscious decision to remove the petitions arising from orders passed under the Public Premises, from Division Bench and to place them before Single Judge. In fact Full Bench found that these petitions were being wrongly entertained by the Division Bench15. In the judgment of the Full Bench there is no indication that Letters Patent Appeal arising out of the orders passed by the Single Judge in proceedings under the Public Premises Act will not be maintainable. If Letters Patent Appeals are otherwise maintainable, judgment of the Full Bench does not take away that right in respect of petitions challenging the orders passed under Public Premises Act. Therefore the argument advanced by the learned counsel on maintainability of the appeal on this ground cannot be accepted. Maintainability was not contested on any other ground. In the present case, the petitioner has invoked both Articles 226 and 227 of the Constitution of India. The learned Judge also has referred to the said Articles in the impugned order. Furthermore, the Respondent Corporation is itself amenable to writ jurisdiction of this Court, being a public corporation. There is therefore no substance in the preliminary objection raised by the learned counsel for the Respondent that the appeal is not maintainable and that it should be dismissed at the threshold without looking at the merits of the matter.

Reasoning:
36. We may reiterate that, in the present case, we are not concerned with the question as to whether the Estate Officer functions as a Court whilst exercising powers under the 1971 Act, an issue which was also considered by the Delhi High Court. It also dealt with the question as to whether the Appellate Officer defined in Section 9 of the 1971 Act, acts as a persona designata and not as a Court. The Delhi High Court opined that the mere fact that the Appellate Officer is a District Judge is not conclusive to hold that he has to act as a Court. It went on to observe that if that had been the intention of the legislature, Section 9 would have empowered either the Court of a District Judge or at any rate, the District Judge as such to hear the appeals. This view expressed by the Delhi High Court, in our opinion, is untenable, keeping in mind the exposition in the case of Thakur Das (supra) and Mukri Gopalan (supra) in particular39. Notably, the expression appellate officer has not been defined in the 1971 Act, unlike the definition of estate officer contained in Section 2(1)(b) of that Act. The appellate officer cannot be considered as a statutory authority, as defined in the dictionary clause in Section 2(1)(fa) of the 1971 Act. In the case of Thakur Das (supra), in paragraph 9, while analyzing the cleavage of opinion of the High Courts, it is noticed that the expression judicial authority would comprehend the Additional Sessions Judge or the Sessions Judge could transfer such appeal pending before him to Additional Sessions Judge which was a pointer to the fact that he was not a persona designata. Even in respect of the appeal under Section 9 of the 1971 Act, the Principal Judge of the City Civil Court or District Judge is competent to hear the appeal himself or designate some other judicial officer within his jurisdiction possessing requisite qualification. It will be useful to advert to Section 7 of the City Civil Courts Act and Sections 3, 5 & 7 of the Maharashtra Civil Courts Act. It is implicit in Section 9 read with the provisions of the Acts constituting the District Judiciary that the head of the district judiciary is the District Judge or Principal Judge of the City Civil Court and Section 9 of the 1971 Act makes it explicit, by investing authority in the District Judge or Principal Judge of the City Civil Court, to designate any other judicial officer within his jurisdiction possessing essential qualifications, to hear such appeals. This is a clear departure from the appointment of a District Judge as a persona designata. The Additional District Judge or judicial officer possessing essential qualification, therefore, is not an inferior appellate officer within the meaning of Section 9 of the 1971 Act. In our opinion, there is enough indication in Section 9 of the 1971 Act to spell out the legislative intent that the remedy of appeal before the appellate officer is not before a persona designata but ag judicial authority in the district concerned41. The fact that there is no express indication in the 1971 Act about the procedure to be adopted or followed by the appellate officer, it would not follow therefrom that the District Judge or designated judicial officer who hears the appeals under Section 9, does so not as a Court but as a persona designata. For the reasons already alluded to we have no hesitation in holding that the remedy of appeal under Section 9 before the Appellate Officer is not as a persona designata but to ag judicial authority. In that case, the procedure for hearing of the appeals will be governed by the provisions under the 1971 Act and Rules framed thereunder and including the enactment under which the judicial authority has been created, such as Maharashtra Civil Courts Act and City Civil Courts Act. [See para 26 of Maharashtra State Financial Corporation (supra), reproduced in earlier part of this judgment in para 26]. Such ag judicial authority, by implication, would be bound to follow the procedure underlying the said enactments and also observe the doctrine of fairness in affording opportunity. Since the edifice on which the conclusions reached by the Delhi High Court, that an appellate officer is persona designata and not a Court, cannot be countenanced in law, the Bombay High Court decisions in Nusli Neville Wadia?s case (supra) and also Prakash Securities Pvt. Ltd. (supra), cannot hold the field to that extent for the same logic46. In the Case of Jinda Ram (supra), the Division Bench of the Madhya Pradesh High Court was called upon to consider the maintainability of revision application under Section 115 of Civil Procedure Code against an order passed by the District Judge as an Appellate Officer under Section 9 of the 1971 Act. After considering the conflicting decisions of the same High Court on the point, the Division Bench held that an order passed by the Appellate Officer under Section 9 is amenable to revisional jurisdiction of the High Court under Section 115 of Civil Procedure Code. The Court relied upon the exposition of this Court in the case of Mukri Gopalan (supra) wherein it has been observed that the appellate authorities constituted under the enactment constitute a class and cannot be considered as a persona designata. Further, the appellate authority functions as a Court. The Court also referred to another decision of this Court in Shyam Sunder Agarwal and Co. Vs. Union of India (1996) 2 SCC 132 )wherein it has been held that appellate order having been passed by a Civil Court, constituted under a special statute subordinate to the High Court though made final under the Act, it is amenable to revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. The Court relied upon other decisions of this Court to buttress the conclusion that the remedy of revision under Section 115 of C.P.C. was available against an order passed by the District Judge on an appeal under Section 9 of the Act. Be that as it may, we are certain that remedy under Article 227 of the Constitution of India is availed against the decision of the Appellate Officer48. 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 ofe 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 court49. 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 jurisdiction50. 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. Indeed, the learned Single Judge has opened the judgment by fairly noting the fact that the writ petition filed by the respondents was under Articles 226 and 227 of the Constitution of India. However, keeping in mind the exposition of this Court in the case of Ram Kishan Fauji (supra) wherein it has been explicated that in determining whether an order of learned Single Judge is in exercise of powers under Article 226 or 227 the vital factor is the nature of jurisdiction invoked by a party and the true nature and character of the order passed and the directions issued by the learned Single Judge50. 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. Indeed, the learned Single Judge has opened the judgment by fairly noting the fact that the writ petition filed by the respondents was under Articles 226 and 227 of the Constitution of India. However, keeping in mind the exposition of this Court in the case of Ram Kishan Fauji (supra) wherein it has been explicated that in determining whether an order of learned Single Judge is in exercise of powers under Article 226 or 227 the vital factor is the nature of jurisdiction invoked by a party and the true nature and character of the order passed and the directions issued by the learned Single Judge55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the learned Single Judge dismissing their writ petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld56. As we have held that the Division Bench, in the facts of the present case, could not have entertained the Letters Patent Appeal against the judgment of the learned Single Judge, it is not necessary for us to examine the merits of the eviction order passed against the respondents by the Estate Officer and confirmed by the City Civil Court and the Single Judge of the High Court. In any case, that cannot be done in the appeal filed by the owner of the public premises, namely, the appellant. We may, however, to subserve the ends of justice, give liberty to the respondents to challenge the decision of the learned Single Judge by way of appropriate remedy, if so advisedAs the preliminary issue regarding the maintainability of the Letters Patent Appeal has been answered in favour of the appellant, this appeal must succeed.