# Bharat Heavy Electricals Ltd v. Deepak Kumar & Ors

- **Citation:** (2023) 5 ILRA 1504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-09
- **Case number:** Writ-C No. 58632 of 2017
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-heavy-electricals-ltd-v-deepak-kumar-ors-50129
- **Pages:** 7

## Headnote

Civil Laws - Constitution of India, 1950 -
Article - 226, 227 - Public Premises
Eviction of Unauthorized Occupants Act,
1971 - Sections 9 & 83(9) - Application to
issue
appropriate
direction
permitting
the
petitioner to get the premises vacated from the
respondents
who
have
attained
age
of
superannuation and no longer associated with
petitioner - by placing reliance upon a judgment
of the Apex Court in case of 'LIC vs Nandini J.
Shah' respondents pleaded that writ petition
under Article 226 is not maintainable - court
finds that, either sitting in jurisdiction under
Article 226 or under 227 court cannot ignore the
fact that respondents are occupying official
accommodations,
which
they
claim
to
be
associated with their services and therefore,
admittedly, those who have attained the age of
superannuation, cannot be allowed to remain in
occupation in the accommodations, irrespective of
the nature of their services or even on the ground
that certain sums allegedly payable to them
remain unpaid to them - held, the High court, in
whatever jurisdiction it sits, always functions on
the basic principles of equity, fairness and
reasonableness, and therefore, the stand of the
petitioner needs consideration and cannot be
ignored merely on the ground that the writ petition
finally has to be heard either under Article 226 or
Article 227 - hence, writ petition allowed -
directions issued to vacate the premises and hand
over peacefully.(Para - 20, 21, 22)

Writ Petition Dismissed. (E-11)

List of Cases cited:

## Text

1504 INDIAN LAW REPORTS ALLAHABAD SERIES
provided under Rule 7 of the Rules of 1997
in accordance with law. He is directed to
conclude the proceedings expeditiously
after giving due opportunity of hearing to
the parties concerned. Let such an exercise
be concluded within a period of two
months from the date a certified copy of
this order is placed before him.

16. Learned counsel for the petitioner
submits that in pursuance of earlier
direction of this Court the 1/3rd deficient
amount of the stamp duty has already been
deposited
by
him
before
Tahsildar,
Fatehpur. It is, therefore, provided that the
the said deposited amount shall be adjusted
in the order to be passed by Additional
District Magistrate (F & R), Fatehpur in
pursuance of the directions of this Court.

17. The writ petition is allowed.
----------
(2023) 5 ILRA 1504
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 58632 of 2017

Bharat Heavy Electricals Ltd. ...Petitioner
Versus
Deepak Kumar & Ors. ...Respondents

Counsel for the Petitioner:
Sri Tarun Varma, Sri Ashish Mishra

Counsel for the Respondents:
Sri Rahul Jain

Civil Laws - Constitution of India, 1950 -
Article - 226, 227 - Public Premises
Eviction of Unauthorized Occupants Act,
1971 - Sections 9 & 83(9) - Application to
issue
appropriate
direction
permitting
the
petitioner to get the premises vacated from the
respondents
who
have
attained
age
of
superannuation and no longer associated with
petitioner - by placing reliance upon a judgment
of the Apex Court in case of 'LIC vs Nandini J.
Shah' respondents pleaded that writ petition
under Article 226 is not maintainable - court
finds that, either sitting in jurisdiction under
Article 226 or under 227 court cannot ignore the
fact that respondents are occupying official
accommodations,
which
they
claim
to
be
associated with their services and therefore,
admittedly, those who have attained the age of
superannuation, cannot be allowed to remain in
occupation in the accommodations, irrespective of
the nature of their services or even on the ground
that certain sums allegedly payable to them
remain unpaid to them - held, the High court, in
whatever jurisdiction it sits, always functions on
the basic principles of equity, fairness and
reasonableness, and therefore, the stand of the
petitioner needs consideration and cannot be
ignored merely on the ground that the writ petition
finally has to be heard either under Article 226 or
Article 227 - hence, writ petition allowed -
directions issued to vacate the premises and hand
over peacefully.(Para - 20, 21, 22)

Writ Petition Dismissed. (E-11)

List of Cases cited:

1. Life Insurance Corporation of India Vs
Nandini J. Shah reported in (2018) 15 SCC 356,

2. Kiran Devi Vs Bihar St. Suni Wakf Board &
ors. (2021 SCC Online SC 280,

3. M/s Hindustan Auto Agency Vs Steel
Authority of India Ltd. (2021) 4 JBCJ 653,

(Delivered by Hon'ble Kshitij Shailendra, J.)

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
5 All. Bharat Heavy Electricals Ltd. Vs. Deepak Kumar & Ors.
1505
direction permitting the petitioner to get the
premises vacated from such privaterespondents 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.
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Judge. In paragraph 40
of the reported decision, the Court
adverting to its earlier decision observed
thus:

40. xxx xxx xxx Whether the
learned Single Judge has exercised the
jurisdiction Under Article 226 or Under
Article 227 or both, would depend upon
various aspects.

There can be orders passed by
the learned Single Judge which can be
construed as an order under both the
articles in a composite manner, for they
can co-exist, coincide and imbricate. It was
reiterated that it would depend upon the
nature, contour and character of the order
and it will be the obligation of the Division
Bench hearing the letters patent appeal to
discern and decide whether the order has
been passed by the learned Single Judge in
exercise of jurisdiction Under Article 226
or 227 of the Constitution or both. The twoJudge Bench further clarified that the
Division Bench would also be required to
scrutinise whether the facts of the case
justify the assertions made in the petition to
invoke the jurisdiction under both the
articles and the relief prayed on that
foundation. The delineation with regard to
necessary party not being relevant in the
present case, the said aspect need not be
adverted to. Again in paragraphs 41 and
42, which may be useful for answering the
matter in issue, the Court observed thus:

41. We have referred to these
decisions only to highlight that it is beyond
any shadow of doubt that the order of civil
court can only be challenged Under Article
227 of the Constitution and from such
challenge, no intra-court appeal would lie
and in other cases, it will depend upon the
other factors as have been enumerated
therein.

42. At this stage, it is extremely
necessary to cull out the conclusions which
are
deducible
from
the
aforesaid
pronouncements. They are:

42.1 An appeal shall lie from the
judgment of a Single Judge to a Division
Bench of the High Court if it is so permitted
within the ambit and sweep of the Letters
Patent.

42.2 The power conferred on the
High Court by the Letters Patent can be
abolished or curtailed by the competent
legislature
by
bringing
appropriate
legislation. 42.3 A writ petition which
assails the order of a civil court in the High
Court has to be understood, in all
circumstances, to be a challenge Under
5 All. Bharat Heavy Electricals Ltd. Vs. Deepak Kumar & Ors.
1507
Article 227 of the Constitution and
determination by the High Court under the
said Article and, hence, no intra-court
appeal is entertainable. 42.4 The tenability
of intra-court appeal will depend upon the
Bench adjudicating the lis as to how it
understands and appreciates the order
passed by the learned Single Judge. There
cannot be a straitjacket formula for the
same. (emphasis supplied)"

6. Sri Rahul Jain has further placed
reliance upon the judgment of Jharkhand
High Court in "M/s Hindustan Auto
Agency Vs. Steel Authority of India Ltd.
(2021) 4 JBCJ 653" in which the aforesaid
decision of Life Insurance Corporation of
India has been relied.

7. He, therefore, submits that the
matter can only be heard under Article 227
of the Constitution of India, and therefore,
the present writ petition is not maintainable
as the same was filed under Article 226 of
the Constitution of India.

8. Per contra, Sri Ashish Mishra,
learned counsel for the petitioner, while
placing reliance upon the judgment of the
Apex Court in the case of Kiran Devi
(supra), has referred to paragraph nos.20,
21 & 22 thereof, which are reproduced as
under:-

"20. Therefore, when a petition is
filed against an order of the Wakf Tribunal
before the High Court, the High Court
exercises the jurisdiction under Article 227
of the Constitution of India. Therefore, it is
wholly immaterial that the petition was
titled as a writ petition. It may be noticed
that in certain High Courts, petition under
Article 227 is titled as writ petition, in
certain other High Courts as revision
petition and in certain others as a
miscellaneous petition. However, keeping
in view the nature of the order passed,
more particularly in the light of proviso to
sub-section (9) of Section 83 of the Act, the
High Court exercised jurisdiction only
under the Act. The jurisdiction of the High
Court is restricted to only examine the
correctness, legality or propriety of the
findings recorded by the Wakf Tribunal.
The High Court in exercise of the
jurisdiction conferred under proviso to subsection (9) of Section 83 of the Act does not
act as the appellate court.

21. We find merit in the argument
raised by Mr. Sanyal that the nomenclature
of the title of the petition filed before the
High Court is immaterial. In Municipal
Corporation of the City of Ahmedabad Vs.
Ben Hiraben Manilal, this Court held that
wrong reference to the power under which
an action was taken by the Government
would not per se vitiate the action, if the
same could be justified under some other
power whereby the Government could
lawfully do that act. The Court held as
under:

"5. ....It is well settled that the
exercise of a power, if there is indeed a
power, will be referable to a jurisdiction,
when the validity of the exercise of that
power is in issue, which confers validity
upon it and not to a jurisdiction under
which it would be nugatory, though the
section was not referred, and a different or
a wrong section of different provisions was
mentioned. See in this connection the
observations in Pitamber Vajirshet Vs.
Dhondu Navlapa [ILR (1888) 12 Bom 486,
489]. See in this connection also the
observations of this Court in the case of L.
Hazari Mal Kuthiala Vs. ITO, Special
Circle, Ambala Cantt [AIR 1961 SC 200 :
(1961) 1 SCR 892 : (1961) 41 ITR 12, 16 :
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
(1961) 1 SCJ 617] This point has again
been reiterated by this Court in the case of
Hukumchand Mills Ltd. Vs. State of M.P.
[AIR 1964 SC 1329 : (1964) 6 SCR 857 :
(1964) 52 ITR 583 : (1964) 1 SCJ 561]
where it was observed that it was well
settled that a wrong reference to the power
under which action was taken by the
Government would not per se vitiate that
action if it could be justified under some
other power under which Government
could lawfully do that act. See also the
observations of the Supreme Court in the
case
of
Nani
Gopal
Biswas
Vs.
Municipality of Howrah [AIR 1958 SC 141
: 1958 SCR 774, 779 : 1958 SCJ 297 :
1958 Cri LJ 271]."

22. Later, in Pepsi Foods Ltd.,
this Court held that nomenclature under
which the petition is filed is not quite
relevant and it does not debar the Court
from exercising its jurisdiction which
otherwise it possesses. If the Court finds
that the appellants could not 16 (1983) 2
SCC 422 invoke its jurisdiction under
Article 226, the Court can certainly treat
the petition as one under Article 227 or
Section 482 of the Code. This Court held
as under:

"26. Nomenclature under which
petition is filed is not quite relevant and
that does not debar the court from
exercising its jurisdiction which otherwise
it possesses unless there is
special
procedure prescribed which procedure is
mandatory. If in a case like the present one
the court finds that the appellants could not
invoke its jurisdiction under Article 226,
the court can certainly treat the petition as
one under Article 227 or Section 482 of the
Code. It may not however, be lost sight of
that provisions exist in the Code of revision
and appeal but some time for immediate
relief Section 482 of the Code or Article
227 may have to be resorted to for
correcting some grave errors that might be
committed by the subordinate courts. The
present petition though filed in the High
Court as one under Articles 226 and 227
could well be treated under Article 227 of
the Constitution."

9. Learned counsel for the petitioner,
therefore, submits that nomenclature of a
petition, which is either under Article 226
or under Article 227, is immaterial and it is
the nature of order under challenge that
would govern the proceedings and would
not
debar
the
Court
exercising
its
jurisdiction, either under Article 226 or
under Article 227 of the Constitution of
India.

10. Sri Ashish Mishra further submits
that irrespective of nomenclature of the
petition, the contents of the application
dated 24.12.2021 and the prayer made
therein can very well be examined by this
Court
leaving
the
question
of
maintainability of the writ petition to be
considered at any subsequent stage.

11. I have heard learned counsel for
the parties and perused the record.

12. The present writ petition has been
filed with the prayer to call for the records
pertaining to the impugned order dated
24.08.2017 passed by the First Additional
District Judge, Gautam Budh Nagar in Misc.
Civil Appeal No.54 of 2016. Further prayer is
to quash the impugned order dated 24.08.2017.
The court of First Additional District Judge,
Gautam Budh Nagar, vide impugned order
dated 24.08.2017, while allowing the appeal
filed by the private respondents (herein)
remanded the matter to the Estate Officer for
holding fresh proceedings.
5 All. Bharat Heavy Electricals Ltd. Vs. Deepak Kumar & Ors.
1509

13. This Court, at this stage, is
examining the application dated 24.12.2021
and finds that the grievance of the
petitioner is to the effect that irrespective of
the services/engagements of the private
respondents, those occupants who have
attained age of superannuation i.e. 60 years,
should be directed to vacate the official
accommodations. It has been pleaded in
paragraph 9 of the application that
respondent no.3 (Akbar) and respondent
no.6 (Ranvir Singh) have attained age of
superannuation, and therefore, they may be
directed to vacate the premises for the
reason that dwelling units in the petitioner
establishment are limited in numbers and
several regular employees of the petitioner
establishment are seeking accommodation
in the premises, however, due to the
continuous occupation of the premises by
the respondents, the same are not being
vacated, causing great and irreparable
prejudice to other employees of the
petitioner establishment.

14. Though, by order dated 14.3.2023,
this Court granted time to the learned
counsel for the respondents to file counter
affidavit
to
the
application
dated
24.12.2021, no counter affidavit has been
filed, and therefore, the facts mentioned in
the affidavit supporting application no.14
of 2021 remain unrebutted, at least insofar
as superannuation of certain persons is
concerned.

15. The submission of Sri Rahul Jain
to the effect that since the writ petition is
not maintainable, the present application
can also not be considered has been
examined by this Court and I find that
whether the order impugned in the writ
petition which has been passed in exercise
of powers under Public Premises (Eviction
of Unauthorized Occupants) Act, 1971 can
be interfered with in exercise of powers
under
Article
226
or
227
of
the
Constitution of India, is a matter to be
examined by the Court while finally
hearing the present writ petition on merits
or on the question of maintainability as
well.

16. Insofar as Application No.14 of
2021 is concerned, its adjudication is not
dependent upon the nomenclature of the
petition, that is to say that whether the
present writ petition which has been filed
under Article 226 of the Constitution of
India needs to be converted into a petition
under Article 227 or whether the Court
hearing the present writ petition as it is, can
exercise powers under Article 227, is not
significant at this stage.

17. The Court is considering the fact
as to whether the respondents, who claim to
be
employees
of
the
petitioner
establishment which fact has been seriously
disputed by the petitioner in the light of the
averments relating to nature of engagement
of the respondents, have any right to
remain in occupation of the official
accommodations even after attaining age of
superannuation.

18. Sri Rahul Jain does not dispute
the fact that some of the respondents have
attained age of superannuation. Further, he
submits that reason for not vacating the
official
accommodations
is
that
the
petitioner establishment has not cleared off
the financial dues admissible to the said
respondents, which include their post retiral
benefits.

19. Learned counsel for the petitioner,
Sri Ashish Mishra submits that question of
payment of any remuneration/ sums/
arrears/post retiral dues, if any, would
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
constitute a separate cause of action, but
under no circumstances, it can be taken as a
ground for not vacating the premises. He
further submits that proceedings in relation
to payment of alleged dues are pending in a
different forum.

20. Having heard learned counsel for
the parties, this Court is of the opinion that
insofar as prayer made in the application is
concerned, the relief can be granted or
denied irrespective of final adjudication of
the controversy. This Court, either sitting
in jurisdiction under Article 226 or
under Article 227 of the Constitution of
India, cannot ignore the fact that
respondents
are
occupying
official
accommodations, which they claim to be
associated with their services, and
therefore, admittedly, those respondents
who
have
attained
the
age
of
superannuation, cannot be allowed to
remain
in
occupation
in
the
accommodations, irrespective of the
nature of their services or even on the
ground that certain sums allegedly
payable to them remain unpaid to them.

21. The High Court, in whatever
jurisdiction it sits, always functions on
the basic principles of equity, fairness
and reasonableness, and therefore, the
stand of the petitioner- Bharat Heavy
Electricals Limited to the effect that
scarcity of official accommodations is
causing
grave
problems
for
the
establishment as well as their regular
employees on account of non vacation
of
the
premises
by
the
retired
respondents, needs consideration and
cannot be ignored merely on the
ground that the writ petition finally
has to be heard either under Article
226 or under Article 227 of the
Constitution of India.

22. In view of the above discussion, the
application is allowed. The respondents who
have attained age of superannuation, i.e. 60
years, shall vacate the premises under their
occupation on or before 15.07.2023. In case,
such respondents fail to vacate the premises
under their occupation and hand over peaceful
and vacant possession to the petitioner, it shall
be open for the petitioner to seek assistance
from the police and District Administration to
use necessary force for their eviction.

23. This order shall not come in the
way of respondents to claim appropriate
reliefs before any other forum in relation to
their grievance for non payment of any
sum, which aspect is beyond the scope of
present writ petition.

24. The application is, accordingly,
allowed in above terms.
----------
(2023) 5 ILRA 1510
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 719 of 1997

Sri Hoti Lal & Ors. ...Appellants
Versus
Lakhpat Singh & Ors. ...Respondents

Counsel for the Appellants:
Sri Madhav Jain

Counsel for the Respondents:
Sri Subhash Chandra Srivastava, Sri S.K.
Mehrotra
Motor accident claim - Accident occurred
on 14.05.1985. Deceased was a 25-year-