Lic vs Nandini J. Shah .

6. 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 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.

7. 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 final.

8. 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 7 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 interest.

10. 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 matter.

12. 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, 9 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 Companies.

(v) in respect of the public premises referred to in sub-

(b) in the case of an appeal from an order [under section 5B or section 7, within twelve days] from the date on which the order is communicated to the appellant; [and]

(c) in the case of an appeal from an order under section 5C, within twelve days from the date of such order:

(iv) any portion of such rent, damages, costs of removal, expenses of demolition or costs awarded to the Central Government or the statutory authority.‖ We may now advert to the provisions in the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971. 42

―9. Procedure in appeals.- (1) An appeal preferred under section 9 of the Act shall be in writing, shall set forth concisely the grounds of objection to the order appealed against, and shall be accompanied by a copy of such order.

(2) On receipt of the appeal and after calling for and perusing the record of the proceedings before the estate officer, the appellate officer shall appoint a time and place for the hearing of the appeal and shall give notice thereof to the estate officer against whose order the appeal is preferred, to the appellant and to the head of the department or authority in administrative control of the premises.‖

(1987 Allahabad Law Journal 179) 62

53. In paragraph 45.2 of the same judgment, the Court authoritatively concluded that an order passed by a Civil Court is amenable to scrutiny of the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued 71 against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable.

56. 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 advised. That shall be done within six weeks from today failing which the appellant will be free to proceed in the matter in furtherance of the eviction order passed by the Estate Officer and confirmed right until the High Court, in accordance with law.

57. We once again clarify that we are not expressing any opinion either way on the merits of the eviction order passed by the Estate Officer and the order of the City Civil Court and of the learned Single Judge of the High Court confirming the same. As the preliminary issue regarding the maintainability of the Letters Patent Appeal has been answered in favour of the appellant, this appeal must succeed.

58. Accordingly, the appeal is allowed in the aforementioned terms. As a consequence, the judgment and order passed by the Division Bench of the High Court of Judicature at Bombay dated 12.10.2012 in Letters Patent Appeal No.181/2012 in C.W.P. No.4337/2012 is set aside and the said Letters Patent Appeal stands dismissed as not maintainable. No order as to costs.

.………………………….CJI.

February 20, 2018.