1

Mgn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, CIVIL JURISDICTION

WRIT PETITION NO.7946 OF 2009

Mr. Nusli Neville Wadia )

of Mumbai, Indian Inhabitant, having )

his office at Neville House, J.N. Heredia )

Marg, Ballard Pier, Mumbai-400 023. )..PETITIONER

Versus

1.The New India Assurance Co., Ltd., )

being a Government Company incorporated)

under the provisions of the Companies )

Act 19556 and having its Head Office at )

The New India Assurance Building, 87, )

Mahatma Gandhi Road, Fort, )

Mumbai-400 001. )

1.Shri S.D. Dhokrikar of Mumbai, Indian )

Inhabitant, described in the Order dated )

29th August, 2008 as “the Estate Officer”, )

having his office at New India Assurance )

Building 4th Floor, 87, Mahatma Gandhi )

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Road, Mumbai-400 001. )..RESPONDENTS

Mr. Rafiq Dada, Senior Counsel with Mr. Percy Ghandy and Mr. Vinayak
Vengurlekar i/b. M/C.Crawford Bayley & Co., for the Petitioner.

Mr. V.Y. Sanglikar, for Respondents.

CORAM : F.I. REBELLO & J.H. BHATIA, JJ.

JUDGMENT RESERVED ON 27TH JANUARY, 2010

JUDGMENT DELIVERED ON: 23RD FEBRUARY, 2010

ORAL JUDGMENT (PER FERDINO I. REBELLO, J.)

Rule. By consent of parties heard forthwith.

2. The petition arises from an order passed by the Principal Judge, City Civil

Court, Mumbai under the provisions of the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971, hereinafter referred to as the Act. The Appeal

preferred by the petitioner herein has been dismissed by judgment and order dated

21st July, 2009.

3. At the hearing of this petition on behalf of the respondents learned Counsel

has raised two preliminary objections as to the maintainability of this petition. We

may first deal with these aspects as they touch upon the jurisdiction of a Division

Bench of this Court to hear and decide the petition.

4. The preliminary contentions urged on behalf of the respondents are (1) That

considering Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules

1960 which hereinafter shall be referred to as the Rules, the Petition, in terms of Rule

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18(3) must be heard by a learned Single Judge of this Court. A Division Bench,

therefore, it is submitted would have no jurisdiction to hear and decide the Appeal

and (2) Placing reliance on an unreported order of a learned Division bench dated

October 5, 2006 in Writ Petition No.6846 of 2005 in the case of Shri Mahesh N.

Kothari & Ors. vs. The Life Insurance Corporation of India & Anr., it is urged

that against the order passed in Appeal by the Principal Judge, City Civil Court, a

Revision Application lies to this Court. As a Revision Application lies this Court

should not exercise its extra ordinary jurisdiction.

Developing the argument on the first issue, the learned Counsel has

principally relied on the Appellate Side Rules and judgment of the Division Bench of

this Court in Principal, Micky School vs. State of Maharashtra & Ors., 2005 (4)

Mh. L.J. , and judgment of the learned Single Judges of this Court in Sanjay

Sadashiv Patil vs. State of Maharashtra & Ors., 2008(4) Mh. L.J. 262,

Hindustan Lever Research Centre Employees’ Union vs. Hindustan Lever Ltd.

& Ors., 2007 (6) All M.R. 734 and the judgment in the case of Girdhar C.

Nichani vs. Rev. E.H. Lewellen & Anr., 1991 Mh. L.J. 891.

5. On the other hand on behalf of the petitioner learned Counsel has taken us

through the provisions of Rule 18 of Chapter XVII to contend that if the Explanation

to Rule 18 is considered it will only be referable to the various acts as contained in

the Rules and to that extent Rule 3 will have to be so read read as otherwise the

Explanation will become otiose and/or superfluous. The learned Counsel has drawn

our attention to the judgment of another Division Bench of this Court in Patru

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Kanuji Ghodmare & Ors. vs. Scheduled Tribes Caste Certificate Scrutiny

Committee & Ors., 2004 (Supp. 2) Bom. C.R. 715 to contend that on considering

Rule 18(3) a learned Division Bench in the matter arising from the Maharashtra

Scheduled Castes, Scheduled Tribes, D-notified Tribes (Vimukta Jatis), Nomadic

Tribes, Other Backward Classes and Special Backward Category (Regulation of

Issuance and Verification of) Caste Certificate Act, 2000 has taken the view that in

view of deletion of Entry 44 from Rule 18, a Division Bench can hear the matter.

6. The importance of the issue as to whether a learned Single Judge or a

Division Bench can hear the matter arises in view of the law declared by the

Supreme Court in Pandurang vs. State of Maharashtra, (1986) 4 S.C.C. 436 Volume

LXXX page 21, where the Supreme Court held that when a matter is required to be

decided by Division Bench of the High Court under a relevant Rule of that High

Court and is decided by a single Judge. the judgment would be a nullity, the matter

having been heard by a Court which had no competence to hear the matter, it being a

matter of total lack of jurisdiction. Even a right decision by a wrong forum is no

decision. It is non-existent in the eye of law and hence nullity.

This judgment was sought to be distinguished on the ground that this is not a

case of want of jurisdiction as writ petitions have to be heard by the High Court. It

is only on account of the procedural Rules that the Court distributes its business

between Division Benches and single Judges. A procedural irregularity it is

submitted does not amount to having no jurisdiction, as the jurisdiction is of the High

Court. Pointing to the relevant Rule it is submitted that the rule does not exclude a

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Division Bench from hearing the matter which can be heard by a learned single

Judge.

We do not propose to go into that controversy considering Article 141, as the

law as declared by the Supreme Court is binding on this Court. The limited question

will be whether the ratio of that judgment will apply while construing Rule 18,

which uses the expression ‘may’.

7. With that we may proceed first to consider the relevant Rules of Chapter

XVII. We may gainfully reproduce Rule 1(i) which reads as under:-

(i) Applications for issue of writs, directions, etc. under

Article 226 of the Constitution.

Every application for the issue of a direction, order or writ under

Article 226 of the Constitution shall, if, the matter in dispute is or has

arisen substantially outside Greater Bombay, be heard and disposed

of by a Division Bench to be appointed by the Chief Justice. The

application shall set out therein the relief sought and the grounds on

which it is sought. It shall be solemnly affirmed or supported by an

affidavit. In every such application, the applicant shall state whether

he has made any other application to the Supreme Court or the High

Court in respect of the same matter and how that application has

been disposed of.

We then have Rule 4 which reads as under:-

4. Division Bench to dispose of the application; rule nisi may be granted

by a Single Judge. Applications under Rule I shall be heard and disposed of

by a Division Bench; but a single Judge may grant rule nisi, provided that he

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shall not pass any final order on the application.

Rule 17 reads as under:-

(i) Applications under Article 227 and 228. An application invoking the

jurisdiction of the High Court under Article 227 of the Constitution or under

Article 228 of the Constitution, shall be filed on the Appellate Side of the

High Court and be heard and disposed of by a Division Bench to be appointed

by the Chief Justice. The application shall set out therein the relief sought and

the grounds on which it is sought. It shall be solemnly affirmed or supported

by an affidavit. In every such application, the applicant shall state whether he

has made any other application to the Supreme Court or the High Court in

respect of the same matter and how that application is disposed of.

(ii) Applicant to inform Court, if, during pendency of an application, the

Supreme Court is approached. If the applicant makes an application to the

Supreme Court in respect of the same matter during the pendency of the

application in the High Court, he shall forthwith bring this fact to the notice

of the High Court by filing an affidavit in the case and shall furnish a copy of

such affidavit to the other side.

(iii) Hearing may be adjourned pending decision by Supreme Court.

The Court may adjourn the hearing of the application made to it pending the

decision of the Supreme Court in the matter.

(iv) Rules 2 to 16 to apply mutatis mutandis. Provisions of Rules 2 to 16

above shall apply mutatis mutandis to all such applications.

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The next relevant Rule is Rule 18 and we shall gainfully refer the same.

18. Single Judge's powers to finally dispose of applications under Article

226 or 227. Notwithstanding anything contained in Rules 1,4 and 17 of this

Chapter, applications under Article 226 or under Article 227 of the

Constitution (or applications styled as applications under Article 227 of the

Constitution read with Article 226 of the Constitution) arising out of-

(1) the orders passed by the Maharashtra Revenue Tribunal under any

enactment,

(2) .........

(3) the decrees or the orders passed by any Subordinate Court [or by any

quasi Judicial Authority] in any suit or proceeding (including suits and

proceedings under any Special or Local Laws), but excluding those arising

out of the Parsi Chief Matrimonial Court [and orders passed under the

Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the

Administrative Tribunals Act, 1985; and the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security Interest Act,

2002.]

(4).....

to

(44).....

may be heard and finally disposed off by Single Judge

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appointed in this behalf by the Chief Justice.

........................

Explanation The expression “order” appearing in clauses (1) to (41) means

any order passed by any judicial or quasi judicial authority empowered to

adjudicate under the abovementioned statutes.]

8. A perusal of the Rules, therefore, would indicate that the ordinarily all

petitions by way of application for issue of direction, order or writ under Article 226

of the Constitution of India shall be heard by a Division Bench. Then under Rule 18

notwithstanding anything contained in Rules, 1,4 and 17 matters set out therein may

be heard by a learned Single Judge. Clause (3) has been partly amended by

Notification dated 15th July, 1999 and subsequent notification on 23rd November,

2005. On a reading of Clause (3) , all orders passed by any subordinate Court or by a

quasi judicial authority in any suit or proceedings arising under any special or local

laws except those excluded may have to be heard by a learned Single Judge. If

Clause (3), therefore, is read in its correct perspective, really speaking Clauses (1),

(2) and (4) to (43) becomes otiose as there is no need then to refer to them as an

order passed under any special or local laws would be included. The expression

“special or local laws” have not been defined under the Rules or under the Chapter.

The two expressions may be interchangeable. The explanation to Rule 18 explains

that order in clauses (1) to (41) means any order passed by any judicial or quasi

judicial authority empowered to adjudicate under the above statutes. In other words

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only judicial or quasi judicial orders passed by any judicial, or quasi judicial

authority in the course of adjudicatory proceedings and not administrative or

ministerial orders.. That would leave the question as to whether administrative and

ministerial orders under Clause (43) will also have to be heard by learned single

Judge. Rule 18 itself uses the expression ‘may be heard and finally disposed off by a

learned Single Judge. Thus a reading of Rule 18 would mean that ordinarily the

matter be heard by a Single Judge, notwithstanding anything contained in Rules 1,4

and 17. If then a matter is heard by a Division Bench, it will not be a case of want of

jurisdiction.

9. At this stage we may also note two relevant provisions of the Constitution

namely Articles 323A and 323B. We may gainfully reproduce the relevant

provisions of Articles 323-A and 323-B

“323A. (1) Parliament may, by law, provide for the adjudication or trial

by administrative tribunals of disputes and complaints with respect

to recruitment and conditions of service of persons appointed to public

services and posts in connection with the affairs of the Union or of any

State or of any local or other authority within the territory of India or

under the control of the Government of India or of any corporation

owned or controlled by the Government. “

323-B. (1) The appropriate Legislature may, by law, provide for the

adjudication or trial by tribunals of any disputes, complaints, or

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offences with respect to all or any of the matters specified in clause (2)

with respect to which such Legislature has power to make laws.

(2) The matters referred to in clause (1) are the following, namely:-
(a) levy, assessment, collection and enforcement of any tax;
(b) foreign exchange, import and export across customs frontiers;
(c) industrial and labour disputes;

(d) land reforms by way of acquisition by the State of any estate as

defined in article 31A or of any rights therein or the extinguishment or

modification of any such rights or by way of ceiling on agricultural land

or in any other way;

(e) ceiling on urban property;

(f) elections to either House of Parliament or the House or either

House of the Legislature of a State, but excluding the matters referred

to in article 329 and article 329A.

(g) production, procurement, supply and distribution of food-stuffs

(including edible oilseeds and oils) and such other goods as the

President may, by public notification, declare to be essential goods for

the purpose of this article and control of prices of such goods;”

[(h) rent, its regulation and control and tenancy issues including the

right, title and interest of landlords and tenants;]

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[(i)] offences against laws with respect of any of the matters specified

in sub-clauses (a) to (h)] and fees in respect of any of those matters;

[(j)] any matter incidental to any of the matters specified in sub-clauses

(a) to [(i)].”

10. These Articles had come up for consideration before the Supreme Court in

L.Chandra Kumar vs. Union of India & Ors., (1997) 3 SCC 261. The t observations

from paragraph 99 which are relevant for our discussion need to be quoted:-

“All decisions of these Tribunals will, however, be subject to scrutiny before

a Division Bench of the High Court within whose jurisdiction the Tribunal

concerned falls.”

It would, therefore, be clear that in view of the direction issued by the Supreme Court

in L. Chandra (supra) in respect of an order under a Legislation which is referable

to Articles 323A and 323B, the orders passed therein will have to be necessarily

heard by a learned Division Bench. Under Article 323A provision is made for

constitution of Tribunals for trial of disputes with respect to recruitment, conditions

of service of persons referred to therein. Under Article 323B there are various laws

including Industrial and Labour laws, rent, its regulation and control and tenancy

issues enacted either by Parliament or the State Legislature in their respective fields

of legislation, will now have to be heard by learned Division Bench in view of the

law declared in L.Chandra Kumar (supra). As such Rule 18 in respect of some of

the Legislations referred to therein will have to be reconsidered. As we are not

dealing with that issue for the present we do not propose to go into that controversy.

11. Let us now examine the judgments referred to in Principal, Micky School

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(supra) where Rule 18(3) was considered and not the Explanation. However, the

Court considering the provisions of the Persons With Disabilities (Equal

Opportunities, Protection of Rights and Full Participation) Act, 1995, was pleased to

observe that it is a special law and, therefore, would fall under clause 3 of Rule 18

and as such the petition will have to be heard by single Bench. Another learned

Division Bench in the case of Shriram Gangaram Bute vs. Deputy Registrar, Co-

operative Societies, Akola & Ors., 2008 (4) All M.R. 726 was considering the

matter arising from the provisions of the Maharashtra Co-operative Societies Act,

1960. There the learned Division Bench had considered the explanation and the

expression “order”. The challenge arose from an order of the Deputy Registrar, Co-

operative Societies, superseding the managing committee and appointing an

Administrator on the society. This clearly neither was a judicial nor a quasi judicial

order. After considering the Rules the learned Division Bench was pleased to

observe that the jurisdiction of a single Judge would be restricted to application

arising out of the judicial or quasi judicial orders of various authorities enumerated in

the rule. The learned Division Bench in the circumstances held that it would have

jurisdiction to entertain the petition. It is not necessary to refer to the judgments of

the learned single Judges in view of the judgments of the two Division Benches

which we have referred to. We may, however, refer to an unreported judgment of a

learned single Judge dated 14th July, 2009 in Writ Petition No.5233 of 2009 in the

case of Smt. Kavita Kapor vs. Union of India & Ors., decided on 14 th July, 2009

where the learned single Judge was pleased to observe that the Public Premises

(Eviction of Unauthorized Occupants) Act, 1971 and the petitions arising out of the

orders passed by the Appellate Authorities under that Act would be heard by a

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learned single Judge. The issue as to whether the Public Premises Eviction Act

would fall within the predicates of Article 323-B has not been considered.

11. The argument advanced on behalf of the petitioners on a co-joint

reading of the explanation and the clauses that they only refer to the acts

listed under the various clauses of Rule 18 cannot be accepted. That may

have been the position before Clause (3) of Rule 18 was amended. After the

amendment the position would be that orders of Subordinate Court [or by any

quasi Judicial Authority] in any suit or proceeding (including suits and

proceedings under any Special or Local Laws) will have to be ordinarily

heard by a learned Single Judge. To that extent the other clauses may

become otiose. That is another issue. However we are in agreement with the

learned Counsel for the Respondents that the explanation cannot be limited

to mean only orders in respect of acts set out in the other clauses. That

another Division Bench pertaining to Caste Scrutiny Committee in the case

of Patru Kanuji Ghodmare (supra) held that the Division Bench would have

jurisdiction by itself cannot lead to the conclusion that Clause (3) has to be

restricted. That contention, therefore, is rejected.

12. The questions that we still have to answer, are whether the Public

Premises Eviction Act is a special law and whether the Public Premises

Eviction Act would fall within the language of Article 323B(h) which reads as

under:-

“Rent, its regulation and control and tenancy issues including the

rights, title and interest of landlords and tenants.”

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Under the provisions of the Public Premises (Eviction of Unauthorised

Occupants) Act, 1971, which hereinafter shall be referred to as the Public

Premises Act, Rent is defined under Section 2(f) to mean that “consideration

payable periodically for the authorised occupation of the premises and

includes......” Under Section 2(e) “public premises” means any premises

belonging to, or taken on lease or requisitioned by, or on behalf of, the

Central Government, as also any premises belonging to or taken on lease by

or on behalf of the companies, corporation and others as set out under

Section 2(e)(ii). Unauthorised occupation has been defined to include the

continuous occupation by a person of the public premises after the authority

(whether by way of grant or any other mode of transfer) under which he was

allowed to occupy the premises has expired or has been determined for any

reason whatsoever. Section 5 provides for eviction of unauthorised

occupants. Section 4 sets out the requirements for notice before directing

eviction. Section 7 provides for recovery of any arrears of rent in respect of

any public premises. Section 14 provides for recovery or rent as arrears of

land revenue. Unauthorised occupant can include a tenant, licensee or

trespasser. It would thus be clear that to an extent it falls within Article

323B(h). At any rate considering Article 323-B(j), it would be a matter

incidental to matters specified in sub-clauses (a) to (i).

13. In New India Assurance Company Ltd. vs. Nusli Neville Wadia &

Anr., (2008) 3 SCC 279, the Supreme Court has in para.22 observed as

under:-

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“22. A tenant of a public premises although ordinarily does not get any

protection from eviction from the tenanted premises under the

provisions of the Maharashtra Rent Control Act, 1999, it is accepted

that the action on the part of the landlord, which is State within the

meaning of Article 12 of the Constitution of India, must in this behalf be

fair and reasonable. In other words the action of the State in terms of

the provisions of the Act should not be arbitrary, unreasonable or mala

fide.”

The Supreme Court also noted that the occupants of public premises

may be trespassers, or might have breached the conditions of tenancy, or

have been occupying the premises as a condition of service, but were

continuing to occupy the premises despite cessation of contract of service.

The Court also noted that there may another class of tenants who are

required to be evicted not on any of the grounds mentioned hereinbefore but

inter alia on the ground, which requires proof of the fairness and

reasonableness on the part of the landlord which may include requirement for

its own use and occupation. Referring to the judgment of Dwarkadas Marfatia

and Sons v. Board of Trustees of the Port of Bombay the Court took note of

the fact that the public authorities are not hidebound by the requirements of

the rent Act, however, in respect of dealing with tenants they have been

treated separately and distinctly from other landlords on the assumption that

they would not act as private landlords. In para.50 it was observed as

under:-

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“50. The literal interpretation of the statute, if resorted to, would also

lead to the situation that it would not be necessary for the landlords in

any situation to plead in regard to its need for the public premises. It

could just terminate the tenancy without specifying any cause for

eviction.”

14. In M/s.Dwarkadas Marfatia and Sons vs. Board of Trustees of the

Port of Bombay, (1989) 3 SCC 293, the Supreme Court was pleased to

observe as under:-

“The field of letting and eviction of tenants is normally governed by the

Rent Act. The Port Trust is statutorily exempted from the operation of

the Rent Act on the basis of its public/governmental character.”

15. In Ashoka Marketing Ltd. & Anr. vs. Punjab National Bank & Ors.,

(1990) 4 SCC 406 the Supreme Court noted that the Public Premises

(Eviction of Unauthorised Occupants) Act, 1971 and the Delhi Rent Control

Act, 1958 both were Acts of Parliament and fall under Concurrent List. The

question there was where two enactments of the same legislature fall under

the same legislative list, the question as to which enactment will override the

other in case of conflict of laws. It was held that had to be determined on

the basis of principles of statutory interpretation as both Acts are special

enactments.

16. From a consideration of what has been stated earlier it would be clear

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that matters of rent, landlord and tenant relationship in matters of public

premises the Rent Control Act will not apply. To that extent it is a special

legislation dealing with a class of landlords which is either the Government or

Governmental companies or Corporations or other statutory bodies. The

Public Premises Eviction Act as a Special legislation deals with a class of

tenants and landlords who are excluded from the purview of the Rent Control

Legislation. The Rent Control Act makes a departure from the general law

regulating the relationship of landlord and tenant contained in the Transfer of

Property Act inasmuch as it makes provision for determination of standard

rent, it specifies the grounds on which a landlord can seek the eviction of a

tenant, it prescribes the forum for adjudication of disputes between landlords

and tenants and the procedure which has to be followed in such proceedings.

In Ashoka Marketing (supra) the Supreme Court noted that both the Public

Premises Act as also the Rent Control Act are special statute in relation to

the matters dealt with therein. The Public Premises Eviction Act similarly

provides for recovery of rent, eviction of tenants and the forum, where

proceedings can be initiated.

17. In our opinion, therefore, the Public Premises Eviction Act deals with

recovery of rent and eviction of tenants by special procedure under the

provisions of the Public Premises Eviction Act. In our opinion, therefore,

atleast this category of cases would fall within Article 323B(2)(h). At any rate

considering Article 323-B(j), it would be a matter incidental to matters

specified in Article 323-B(h).

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18. Another aspect of Rule 18 of Chapter 17 which we 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 our

opinion, however, in order 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.

18.. The other issue which we have to decide is, if an alternative remedy like

revision lies, is the extra ordinary jurisdiction excluded. What is the effect of the

order passed in Writ Petition No.6846 of 2006 Shri Mahesh N Kothari & Ors (supra).

At the outset we may first explain that it is not a judgment. The learned Bench

merely declined to exercise jurisdiction. The learned Bench proceeded on the

footing that from the order passed by the learned Principal Judge a Revision would

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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 this 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 alternate remedy does not exclude the

jurisdiction of the High Court in entertaining a Writ Petition.

19. We may only refer to some of the judgments pointed out at the bar on behalf

of the petitioners to contend that the Principal Judge, City Civil Court exercising the

jurisdiction as an Appellate Authority under the Public Premises Eviction Act, 1971,

does so in the capacity as a persona designata and not as a Court. Our attention was

invited to a judgment of the Delhi High Court in N.P. Berry vs. Delhi Transport

Corporation & Anr., 15 (1979) DLT 108. The learned Division Bench of the Delhi

High Court after considering the Scheme and the provisions of the Public Premises

Eviction Act Article 227 and other provisions noted that the whole point of the

distinction is whether the Judge is to act as a persona designata or as a court. The

mere fact that it is a Judge who is to hear the appeals is not conclusive to show that

he has to act as a Court. The fact that the legislature did not confer power on a

District Judge or a City Civil Court as such to hear the Appeals, but the Legislature

has chosen to designata the authority as Appellate Officer would make it clear that

the power was conferred in his capacity as persona designata. The Court also noted

that in so far as the power and control are concerned, certain power of the Civil Court

have been conferred and that would show that they are not Civil Courts. Section 115

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of the Code of Civil Procedure applies only when a Court makes an order which is

subject matter of an Appeal. We are in agreement with the view taken that the

Appellate power is exercised by a persona designata. Considering that the power of

appeal is conferred not on the Court but on the Principal Judge of the City Civil

Court as an Appellate Authority.

20.. We may now refer to some of the other judgments referred to. In Gangadhar

Bapurao Gadre vs. Hubli Municipality,1925 B.L.R., 519, a Division Bench of this

Court was considering an order passed by the District Judge under Section 22 of the

Bombay District Municipality Act. After considering various aspects the learned

Division Bench came to the conclusion that the Assistant Judge who heard the

application, was not a Court within the meaning of Section 115 for the High Court to

exercise its extra ordinary jurisdiction. In Municipality of Sholapur vs. Tuljaram

Krishnasa Chavan, A.I.R. 1931 Bombay 582 the provisions of the Bombay City

Municipalities Act was under consideration. The learned Bench noted that where the

Judge or the presiding officer of a Court as distinguished from the Court itself is

directed to perform any function of any authority created by a statute, such a Judge

may be considered as a persona designata and not a Court, but where a Civil Court

subordinate to the High Court is constituted as an authority to decide the rights

between the parties and is directed to perform judicial functions, it is difficult to hold

that such a Court is a persona designata and not a Court subordinate to the High

Court. In Keshav Ramchandra vs. Municipal Borough, Jalgaon and Others,

AIR 1946 Bom.64 the issue was whether against an order passed by a Judge acting

under Section 15 of the Bombay Municipal Boroughs Act Revision would lie. The

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learned single Judge (Chagla J.) was pleased to hold that the Judge there was acting

as a persona designata and as such Revision would not lie. Similar was a view taken

by another Division Bench in Jagmohan Surajmal Marwadi vs. Venkatesh Gopal

Ranade, A.I.R. 1933 Bom.105 under the Bombay City Municipalities Act where the

Court held that the District Judge acting under Section 15 acts as persona designata.

21. 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 designate and as such no revision would lie. Even otherwise, in our

opinion, merely because a Revision would lie by itself would not oust the extra

ordinary jurisdiction of this Court. Hence on that point we are clearly of the view

that an order declining to exercise jurisdiction on the ground of alternate remedy

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.

22. For the view to be taken we pass the following order:-

(1) The preliminary objection as to the jurisdiction of the Division Bench of this

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 extra

ordinary jurisdiction as a revision is available, as we have held that the District

Judge when acting as Appellate Authority acts as a persona designata and hence no

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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 an 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.

( J.H. BHATIA, J.) (FERDINO I. REBELLO, J.)

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