# Radha Kishan Yadav & Ors v. The State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-26
- **Case number:** Writ-C No. 9518 of 2001
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radha-kishan-yadav-ors-v-the-state-of-u-p-ors-46574
- **Pages:** 21

## Headnote

A. Constitution of India - Article 226 & 227 -
Writ - Maintainability - Certiorari - Scope -
Eviction order - Nature - Proper remedy
against it - Held, the expression 'inferior court'
is
not
referable
to
judicial
courts
and
accordingly judicial orders of civil courts are
not amenable to a writ of certiorari under
Article 226 and a writ of mandamus does not
lie against a private person not discharging any
public duty - Judicial orders of civil court
would not be amenable to writ jurisdiction
under
Article
226
and
that
challenge
thereagainst can be raised under Article 227 -
High Court permitted the petitioner to move
appropriate amendment application. (Para 43,
44 and 47)
B. UP Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 - Sections 4 & 9 -
Eviction order - Exercise of appellate power by
the District Judge, whether it acted as the
Persona designate or as the Civil Court -Held,
appellate Officer, while exercising powers
under Section 9 of the UP PP Act does not act
as a persona designata but in his capacity as a
pre-existing judicial authority in the district -
a District Judge - The designation though
having been made as an Appellate Officer, the
District Judge, for the purposes of deciding of
an appeal under Section 9, therefore is to be
held to exercise powers of the civil court. (Para
29 and 35)
Petition kept pending. (E-1)
Cases relied on :-

## Text

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11 All. Radha Kishan Yadav & Ors. Vs. The State of U.P. & Ors.
435

21. I also see merit in the submission of the
learned Standing Counsel that the order dated
02.01.2019 only refused to non suit the
petitioner in absence of evidence and allowing
the parties to lead evidence and subsequent to
02.01.2019.

22. The issue whether the petitioner was a
working journalist within the meaning of
Section 2f of the Act of 1955, could be decided
only after receiving complete evidence of
parties. The order dated 02.01.2019 does not
adjudicate the said issue in accordance with law
as full evidence of parties had not been adduced
till then. To treat the order dated 02.01.2019 as
final, would preempt an adjudication on merits
as per law and occasion a miscarriage of justice.

23. In wake of the preceding narrative, this
Court finds no infirmity in the award passed by
the learned labour court. 24. The writ petition is
liable to be dismissed and is dismissed.
----------
(2021)12ILR A435
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 9518 of 2001

Radha Kishan Yadav & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Madhav Jain

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 226 & 227 -
Writ - Maintainability - Certiorari - Scope -
Eviction order - Nature - Proper remedy
against it - Held, the expression 'inferior court'
is
not
referable
to
judicial
courts
and
accordingly judicial orders of civil courts are
not amenable to a writ of certiorari under
Article 226 and a writ of mandamus does not
lie against a private person not discharging any
public duty - Judicial orders of civil court
would not be amenable to writ jurisdiction
under
Article
226
and
that
challenge
thereagainst can be raised under Article 227 -
High Court permitted the petitioner to move
appropriate amendment application. (Para 43,
44 and 47)
B. UP Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 - Sections 4 & 9 -
Eviction order - Exercise of appellate power by
the District Judge, whether it acted as the
Persona designate or as the Civil Court -Held,
appellate Officer, while exercising powers
under Section 9 of the UP PP Act does not act
as a persona designata but in his capacity as a
pre-existing judicial authority in the district -
a District Judge - The designation though
having been made as an Appellate Officer, the
District Judge, for the purposes of deciding of
an appeal under Section 9, therefore is to be
held to exercise powers of the civil court. (Para
29 and 35)
Petition kept pending. (E-1)
Cases relied on :-
1. Radhey Shyam Vs Chhabi Nath; (2015) 5 SCC 423
2. Thakur Das Vs St. of M.P.; (1978) 1 SCC 27
3.
Mukri
Gopalan
Vs
Cheppilat
Puthanpurayil
Aboobacker; (1995) 5 SCC 5
4. Central Talkies Ltd. Vs Dwarka Prasad; AIR 1961
SC 606
5. Parthasaradhi Naidu Vs Koteswara Rao; AIR 1924
Mad 561 (FB)
6. Brajnandan Sinha Vs Jyoti Narain; AIR 1956 SC 66
7. Virindar Kumar Satyawadi Vs St. of Pun. AIR 1956
SC 153
8. Asnew Drums Pvt. Ltd. Vs Maharashtra St. Finance
Corporation; (1971) 3 SCC 602
436 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Maharashtra St. Financial Corporation Vs Jaycee
Drugs & Pharmaceuticals (P) Ltd.; (1991) 2 SCC 637
10. National Sewing Thread Co. Ltd. Vs James
Chadwick & Bros. Ltd.; AIR 1953 SC 357
11. National Telephone Co. Ltd. Vs PostmasterGeneral; 1913 AC 546
12. Adaikappa Chettiar Vs R. Chandrasekhara Thevar;
AIR 1948 PC 12
13. Secretary of St. for India Vs Chellikani Rama Rao;
AIR 1916 PC 21
14. Ram Chandra Aggarwal & anr. Vs St. of U.P. &
anr.; AIR 1966 SC 1888
15. Chatur Mohan Vs Ram Behari Dixit; AIR 1964 All
562
16.L.I.C. Vs Nandini J.Shah & ors.; (2018) 15 SCC 356
17. Radhey Shyam & anr. Vs Chhabi Nath & ors.;
(2009) 5 SCC 616
18. Sohan Lal Vs U.O.I.; AIR 1957 SC 529
19. Mohd. Hanif Vs St. of Assam; (1969) 2 SCC 782
20. Hindustan Steel Ltd. Vs Kalyani Banerjee; (1973)
1 SCC 273
21. Naresh Shridhar Mirajkar Vs St. of Mah.; AIR 1967
SC 1
22. Surya Dev Rai Vs Ram Chander Rai; (2003) 6 SCC
675
23. Kemp Vs Balne; (1844) 1 Dow & L 885
24. Rex Vs Chancellor of St. Edmundsbury and
Ipswich Diocese, Ex Parte White; (1948) 1 KB 195,
pp. 205-06
25. Writ - C No. 16753 of 2010; M/S. Magma Leasing
Ltd. Vs Badri Vishal & ors. decided on 18.11.2021
(Delivered by Hon'ble Dr. Yogendra Kumar
Srivastava, J.)

1. Heard Sri Madhav Jain, learned counsel
for the petitioner and Sri Amit Manohar, learned
Additional Chief Standing Counsel appearing
for the State respondents.

2. The present petition under Article 226 of
the Constitution of India has been filed seeking a
writ of certiorari for quashing the orders dated
21.12.2000 and 30.6.1995 passed in proceedings
under the Uttar Pradesh Public Premises
(Eviction of Unauthorised Occupants) Act,
19721.

3. Pleadings in the petition indicate that
proceedings under Section 4 of the UP PP Act
were initiated against the petitioner and an order
dated 30.6.1995 was passed by the prescribed
authority for eviction and damages. Aggrieved
against the aforesaid order, an appeal under
Section 9 of the Act was filed before the District
Judge, Firozabad which also came to be decided
in terms of an order dated 21.12.2000
confirming the order of eviction whereas the
order with regard to damages was set aside. It
was at this stage, that the present writ petition
was filed.

4. The issue which arises for determination
is, therefore, as to whether an order passed in an
appeal under the UP PP Act can be held to be a
judicial order passed by a civil court and as to
whether the same would be amenable to writ
jurisdiction under Article 226.

5. Learned Additional Chief Standing
Counsel has raised an objection with regard to
the maintainability of the petition under Article
226 by pointing out that the order passed in
appeal by the appellate officer under the UP PP
Act is a judicial order passed by civil court and
in view of the authoritative pronouncement
made in the case of Radhey Shyam vs. Chhabi
Nath2, the same would not be amenable to the
writ jurisdiction under Article 226.

6. In order to appreciate the aforesaid
contention, the relevant provisions of the UP PP
Act would be required to be adverted to.

7. The UP Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 [Act no. 22
of 1972 dated 28 April, 1972] is an Act to
11 All. Radha Kishan Yadav & Ors. Vs. The State of U.P. & Ors.
437
provide for the eviction of unauthorised
occupants from public premises and for certain
incidental matters. The provisions of the
aforesaid Act which would be relevant for the
purposes of the controversy involved in the
present case are extracted below:

"2.(b)
"premises"
means
any
land
(including any forest land or trees standing
thereon or covered by water or a road
maintained by the State Government or land
appurtenant to such road) or any building or part
of a building and includes--

(i) the garden, grounds, and outhouses, if any, appertaining to such building or
part of a building, and

(ii) any fittings or fixtures affixed to or
any furniture supplied with such building or part
of a building for the more beneficial enjoyment
thereof.

But does not include land which for
the time being is held by a tenure-holder under
any law relating to land tenure.

(d) "Prescribed Authority" means an officer
appointed as Prescribed Authority by the State
Government under Section 3.

(e) "public premises" means any premises
belonging to or taken on lease or requisitioned
by or on behalf of the State Government, and
includes any premises belonging to or taken on
lease by or on behalf of--

(i) any company as defined in Section
3 of the Companies Act, 1956, in which not
less than fifty-one per cent of the paid-up share
capital held by the State Government; or

(ii) any local authority; or

(iii) any Corporation (not being a
company as defied in Section 3 of the
Companies Act, 1956 or a local authority)
owned or controlled by the State Government;
or

(iv) any society registered under the
Societies Registration Act, 1860, the governing
body whereof consists, under the rules or
regulations of the society, wholly of public
officers or nominees of the State Government
or both;

and also includes--

(i) Nazul land or any other premises
entrusted to the management of a local
authority (including any building built with
Government funds on lands belonging to the
State Government after the entrustment of the
land to that local authority, not being land
vested in or entrusted to the management of a
Gaon Sabha or any other local authority under
any law relating to land tenures);

(ii) any premises acquired under the
Land Acquisition Act, 1894 with the consent of
the State Government for a company (as
defined in that Act) and held by that company
under an agreement executed under Section 41
of that Act providing for re-entry by the State
Government in certain conditions.

4. Issue of notice to show-cause against
order of eviction-- (1) If the prescribed
authority, either of its own motion or on an
application or report received on behalf of the
State Government or the corporate authority, is
of opinion that any persons are in unauthorised
occupation of any public premises and that they
should be evicted, the prescribed authority shall
issue in the manner hereinafter provided a
notice in writing calling upon all persons
concerned to show cause why an order of
eviction should not be made.

(2) The notice shall--

(a) specify the grounds on which the
order of eviction is proposed to be made; and

(b) require all persons concerned that
is to say, all persons who are, or may be, in
occupation of, or claim interest in the public
premises to show cause, if any, against the
proposed order on or before such date as is
specified in the notice being a date not earlier
than ten days from the date of issue thereof.

(3) The prescribed authority shall
cause the notice to be served either personally
438 INDIAN LAW REPORTS ALLAHABAD SERIES
on all those persons concerned or by having it
affixed on the outer door or some other
conspicuous part of the public premises and in
any other manner, provided in the Code of Civil
Procedure, 1908.

(4) Where the prescribed authority
knows or has reasons to believe that any persons
are in occupation of the public premises, then,
without prejudice to the provisions of subsection (3), he shall cause a copy of the notice to
be served on every such person by registered
post or by delivering or tendering it to that
person or in such other manner as may be
prescribed.

5.
Eviction
of
unauthorized
occupants--(1) If, after considering the cause, if
any, shown by any person in pursuance of a
notice under Section 4 and any evidence he may
produce in support of the same and after giving
him a reasonable opportunity of being heard, the
prescribed authority is satisfied that the public
premises are in unauthorised occupation, the
prescribed authority may make an order of
eviction, for reason to be recorded therein,
directing that the public premises shall be
vacated, on such date as may be specified in the
order, by all person who may be in occupation
thereof, or any part thereof, and cause a copy of
the order to be affixed to 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 within thirty
days of the date for its publication under subsection (1), the prescribed authority or any other
officer duly authorised by the prescribed
authority in this behalf may evict that person
from, and take possession of, the public
premises and may, for that purpose, use such
force, as may be necessary.

6. Disposal of property left on public
premises by unauthorised occupants--(1)
Where any person have been evicted from any
public
premises
under
Section
5,
the
prescribed authority may, after giving not less
than fourteen days' notice to the persons from
whom possession of the public premises has
been taken and after publishing the notice in at
least one newspaper having circulation in the
locality, remove or cause to be removed or
dispose of by public auction any property
remaining on such premises, including any
material
of
a
demolished
building
or
ungathered crop or fruits of trees.

(2) Where any property is sold under subsection (1), the sale proceeds thereof shall,
after deducting the expenses of the sale and
the amount, if any, due to the State
Government or the corporate authority, on
account of arrears of rent or damages or costs,
be paid to person or persons as may appear to
the prescribed authority to be entitled to the
same:

Provided that where the prescribed
authority is unable to decide as to the person
or persons to whom the balance of the amount
is payable or as to the apportionment of the
same, it may refer such dispute to the Civil
Court of competent jurisdiction and the
decision of the Court thereon shall be final.

7. Power to require payment of rent or
damages in respect of public premises--
(1)Where any person is in arrears of rent for
four months payable in respect of any public
premises, the prescribed authority may, by
order, require that person to pay the same
within such time and in such instalments as
may be specified in the order, and on the
failure of such person to pay the same or any
instalment thereof, he shall be deemed to be in
unauthorised
occupation
of
the
public
premises.

(2) Where any person is, or at any time
being, in unauthorised occupation of any public
premises, the prescribed authority may, having
regard to such principles of assessment of
damages as may be prescribed, assess the
amount of damages on account of the use and
occupation of such premises and may by order,
11 All. Radha Kishan Yadav & Ors. Vs. The State of U.P. & Ors.
439
require that person to pay the amount within
such time and in such instalments as may be
specified in the order.

(3) No order under sub-section (1) or subsection (2) shall be made against any person until
after the issue of a notice in writing to the person
calling upon him to show-cause within such time
as may be specified in the notice, why such order
should not be made, and until his objections, if
any, and any evidence he may produce in support
of the same have been considered by the
prescribed authority.

8. Powers of prescribed authority--The
prescribed authority and the appellate officer shall,
for the purpose of holding any inquiry or hearing
any appeal under this Act, have the same powers
as are vested in a Civil Court under the Code of
Civil Procedure, 1908, when trying suit in respect
of the following matters, namely--

(a) summoning and enforcing the attendance
of any person and examining him on oath;

(b) requiring the discovery and production of
documents;

(c) any other matter which may be prescribed.

9. Appeals--(1) An appeal shall lie from
every order of the prescribed authority made in
respect of any public premises under Section 5 or
Section 7 to an appellate officer who shall be the
District Judge of the District in which the public
premises are situate or such other Judicial Officer
not below the rank of Civil Judge as the District
Judge may designate in this behalf.

(2) An appeal under sub-section (1) shall
be preferred--

(a) in the case of an appeal from an order
under Section 2, within fifteen days from the date
of the publication of the order under sub-section
(1) of that section; and

(b) in the case of an appeal from an order
under Section 7, within fifteen days from the date
on which the order is communicated to the
appellant:

Provided that that the appellate
officer may entertain the appeal after the
expiry of the said period of fifteen days, if he
is satisfied that appellant was prevented by
sufficient cause from filing the appeal in time.

(3) Where an appeal is preferred from an
order of the prescribed authority, the appellate
officer may stay the enforcement of that order
for such period and on such conditions as he
deems fit.

(4) Every appeal under this section shall
be disposed of by the appellate officer as
expeditiously as possible.

(5) The cost of any appeal under this
section shall be in the discretion of the
appellate officer.

(6) The District Judge may withdraw any
appeal pending with any judicial officer
referred to in sub-section (1) and either
dispose of the same or transfer it to any other
judicial officer referred to in that sub-section.

10. Finality of orders--Save as otherwise
expressly provided in this Act, every order
made by a prescribed authority or appellate
officer under this Act shall be final and shall
not be called in question in any original suit,
application or execution proceeding and no
injunction shall be granted by any Court or
other authority in respect of any action taken
or to be taken in pursuance of any power
conferred by or under this Act.

15. Bar of jurisdiction--No court shall
have jurisdiction to entertain any suit or
proceeding in respect of the eviction of any
person who is in unauthorised occupation of
any public premises or the recovery of the
arrears of rent payable under sub-section (1)
of Section 7 or the damages payable under
sub-section (2) of that Section or the costs
awarded to the State Government or the
corporate authority under sub-section (5) of
Section 9 or any portion of such rent, damages
or costs."

8. It would also be relevant to take note of
certain provisions under the Uttar Pradesh
Public Premises (Eviction of Unauthorised
Occupants) Rules, 19733. Rules 9, 10, 11, and
440 INDIAN LAW REPORTS ALLAHABAD SERIES
12 of the aforesaid Rules, 1973 are being
reproduced below:

"9. Procedure of appeals: Sections
9 and 18 (2) (f)--(1) An appeal under Section
9 may be preferred by any person aggrieved
by an order under Section 5 or Section 7.

(2) The appeal shall be preferred in
the form of a memorandum signed by the
appellant
or
his
representative
and
be
presented either in person or through such
representative to the District Judge or to the
munsarim of his court.

(3) Every such memorandum shall be
accompanied by a copy of the order appealed
against and shall set forth concisely and under
district heads the grounds of objection and
such
grounds
shall
be
numbered
consecutively.

(4) On receipt of the appeal and after
calling for and perusing the record of the
proceedings before the prescribed authority,
the appellate officer shall fix a date for the
hearing of the appeal and shall give notice
thereof to the prescribed authority against
whose orders the appeal is preferred, as well
as to the appellant.

10. Power under the Code of Civil
Procedure 1908: Section 8 (c)--The prescribed
authority or the appellate officer shall, for the
purpose of holding an inquiry or hearing any
appeal under the Act, shall have the same powers
as are vested in the civil court under the Code of
Civil Procedure, 1908, when trying a suit, in
respect of the following matters, namely--

(a)
the
power
to
dismiss
an
application or appeal for default and to restore
it for sufficient cause:

(b) the power to proceed ex parte and
set aside, for sufficient cause an order passed
ex parte;

(c) the power to order attachment
before judgement;

(d) the power referrred to in Section
151 of the Code of Civil Procedure, 1908, to
make any order for the ends of justice or to
prevent the abuse of process of the authority
concerned; and

(e) the power to accept affidavits in
proceedings pending before him and to issue
commissions in suitable cases.

11. Application for setting aside exparte orders and for restoration Section 18-
-The prescribed authority or the appellate
officer, as the case may be, may for sufficient
cause--

(a) set said an ex parte order made in
proceedings under Section 5 or Section 7;

(b) restore an appeal arising out of the
proceeding referred to in clause (a) where
such appeal has been dismissed for default of
appearance of the appellant or his counsel.

12. Limitation for application under
Rule 10: Section 18--(1) An application under
Rule 10 to set aside an order deciding an
appeal or order or ex parte shall be made
within thirty days from the date of such
proceeding where the notice of such appeal or
proceedings was not duly served, when the
applicant or appellant, as the case may be, had
knowledge of that order.

(2) An application under Rule 10 to
restore and appeal or proceeding dismissed for
default shall be made within thirty days from
the date of such dismissal."

9. Section 8 of the UP PP Act which
relates to powers of the prescribed authority
provides that for the purpose of holding any
enquiry or hearing in appeal under the Act, the
prescribed authority and the appellate officer
shall have the same powers as are vested in a
civil court under the Code of Civil Procedure,
1908 while trying a suit in respect of certain
specified matters.

10. Section 9 of the Act which relates to
appeals mandates that an appeal shall lie from
every order of the prescribed authority made in
11 All. Radha Kishan Yadav & Ors. Vs. The State of U.P. & Ors.
441
respect of any public premises under Section 5
and 7 to an appellate officer who shall be the
district judge of a district in which the public
premises are situate or such other judicial officer
not below the rank of a civil judge as the district
judge may designate in this behalf. Sub-section
(2) of Section 9 prescribes a time period of 15
days for filing the appeal and the proviso to the
sub-section empowers the appellate officer to
entertain the appeal after the expiry of the
aforesaid period. In terms of sub-section (3), the
appellate officer is empowered to grant stay of
the enforcement of the order, subject to
conditions as he may deem fit.

11. Section 10 provides for finality of
orders and in terms thereof, every order made by
a prescribed authority or appellate officer under
the UP PP Act save as otherwise expressly
provided for, shall be final and shall not be
called in question in any original suit,
application or execution proceeding and no
injunction shall be granted by any court or other
authority in respect of any action taken or to be
taken in pursuance of any power provided under
the Act.

12. Section 15 creates a bar on jurisdiction
and it provides that no court shall have
jurisdiction to entertain any suit or proceedings
in respect of eviction of any person who is in
unauthorised occupation of any public premises
or the recovery of arrears of rent or damages or
costs awarded payable under the relevant
provisions of the Act.

13. In terms of Rule 10 of the Rules 1973,
the prescribed authority or the appellate officer
shall for the purpose of holding an enquiry or
hearing any appeal, are to have same powers as are
vested in the civil court under the Code of Civil
Procedure, 1908, while trying a suit in respect of
matters specified therein.

14. Having regard to the scheme of the Act,
it would be necessary to determine as to whether
the District Judge/Appellate Officer exercising
powers under Section 9 acts as a persona designata
or as a civil court. In this regard, it would be
relevant to bear in mind that where the authority
has been created by a statute and is identified by an
official designation, the provisions of the statute
would have to be looked into to determine whether
the legislative intent was to identify him as a
persona designata with his official designation
being a mere description.

15. The question as to whether the judicial
authority constituted by the State Government
under Section 6-C of the Essential Commodities
Act, 1955, to hear appeals against orders of
confiscation that may be passed by the licensing
authority under Section 6-A, is not an inferior
criminal court subordinate to the High Court and
amenable to revisional jurisdiction under Section
435 read with Section 439 of the Code of Criminal
Procedure, came up for consideration in the
decision in Thakur Das Vs. State of M.P.4 While
examining the question the court was required to
consider whether the judicial authority appointed
under Section 6-C of the said Act would be a
persona designata, despite the fact that the said
authority happens to be the Sessions Judge. It was
noticed that while conferring power on the State
government to appoint the appellate forum, the
Parliament clearly manifested its intention as to
who should be such Appellate Authority and by
using expression "judicial authority" it was clearly
indicated that the appellate authority must be one
such pre-existing authority who was exercising
judicial authority of the State and accordingly it
was held that since the Sessions Judge is a Judge
presiding over the Sessions Court and that is the
appointed appellate authority, the conclusion is
inescapable that he was not persona designata. It
was observed as follows :-

"7. If the Sessions Judge presiding
over the Sessions Court is the judicial authority,
the question is: would it be an inferior criminal
court subordinate to the High Court for the
442 INDIAN LAW REPORTS ALLAHABAD SERIES
purposes of Sections 435 and 439 of the
Criminal Procedure Code? At the one end of the
spectrum the submission is that the judicial
authority appointed under Section 6-C would be
persona designata and that if by a fortuitous
circumstance the appointed judicial authority
happens to be the Sessions Judge, while
entertaining and hearing an appeal under Section
6-C it would not be an inferior criminal court
subordinate to the High Court and, therefore, no
revision application can be entertained against
his order by the High Court. While conferring
power on the State Government to appoint
appellate
forum,
the
Parliament
clearly
manifested its intention as to who should be
such Appellate Authority. The expression
"judicial" qualifying the "authority" clearly
indicates that that authority alone can be
appointed to entertain and hear appeals under
Section 6-C on which was conferred the judicial
power of the State. The expression "judicial
power of the State" has to be understood in
contradistinction to executive power. The
framers of the Constitution clearly envisaged
courts to be the repository of the judicial power
of the State. The Appellate Authority under
Section 6-C must be a judicial authority. By
using the expression "judicial authority" it was
cleanly indicated that the Appellate Authority
must be one such pre-existing authority which
was exercising judicial power of the State. If any
other authority as persona designata was to be
constituted there was no purpose in qualifying
the word "authority" by the specific adjective
"judicial". A judicial authority exercising
judicial power of the State is an authority having
its own hierarchy of superior and inferior court,
the law of procedure according to which it
would dispose of matters coming before it
depending upon the nature of jurisdiction
exercised by it acting in judicial manner. In
using
the
compact
expression
"judicial
authority" the legislative intention is clearly
manifested that from amongst several preexisting authorities exercising judicial powers of
the State and discharging judicial functions, one
such may be appointed as would be competent
to discharge the appellate functions as envisaged
by Section 6-C. There is one in-built suggestion
indicating who could be appointed. In the
concept of appeal inheres hierarchy and the
Appellate Authority broadly speaking would be
higher than the authority against whose order the
appeal can be entertained. Here the Appellate
Authority would entertain appeal against the
order of Collector, the highest revenue officer in
a district. Sessions Judge is the highest judicial
officer in the district and this situation would
provide material for determining Appellate
Authority. In this connection the legislative
history may throw some light on what the
legislature intended by using the expression
"judicial authority". The Defence of India Rules,
1962, conferred power on certain authorities to
seize essential commodities under certain
circumstances. Against the seizure an appeal
was provided to the State Government whose
order was made final. By the Amending Act 25
of 1966 Sections 6-A to 6-D were introduced in
the Act. This introduced a basic change in one
respect, namely, that an order of confiscation
being penal in character, the person on whom
penalty is imposed is given an opportunity of
approaching a judicial authority. Earlier appeal
from executive officer would lie to another
executive forum. The change is appeal to
judicial authority. Therefore, the expression
clearly
envisages
a
pre-existing
judicial
authority has to be appointed Appellate
Authority under Section 6-C. When the
provision contained in Section 6-C is examined
in the background of another provision made in
the order itself it would become further
distinctly
clear
that
pre-existing
judicial
authority was to be designated as Appellate
Authority under Section 6-C. A seizure of
essential commodity on the allegation that the
relevant licensing order is violated, would incur
three penalties: (1) cancellation of licence; (2)
forfeiture
of
security
deposit;
and
(3)
11 All. Radha Kishan Yadav & Ors. Vs. The State of U.P. & Ors.
443
confiscation of seized essential commodity,
apart from any prosecution that may be launched
under Section 7. In respect of the first two
penalties an appeal lies to the State Government
but in respect of the third though prior to the
introduction of Section 6-C an appeal would lie
to the State Government, a distinct departure is
made in providing an appellate forum which
must qualify for the description and satisfy the
test of judicial authority. Therefore, when the
Sessions Judge was appointed a judicial
authority it could not be said that he was persona
designata and was not functioning as a court.

8. Sections 7 and 9 of the Code of Criminal
Procedure, 1898, envisage division of the State
into various Sessions Divisions and setting up of
Sessions Court for each such division, and
further provides for appointment of a Judge to
preside over that court. The Sessions Judge gets
his designation as Sessions Judge as he presides
over the Sessions Court and thereby enjoys the
powers and discharges the functions conferred
by the Code. Therefore, even if the judicial
authority appointed under Section 6-C is the
Sessions Judge it would only mean the Judge
presiding
over
the
Sessions
Court
and
discharging the functions of that court. If by the
Sessions Judge is meant the Judge presiding
over the Sessions Court and that is the appointed
Appellate
Authority,
the
conclusion
is
inescapable that he was not persona designata
which expression is understood to mean a person
pointed out or described as an individual as
opposed to a person ascertained as a member of
a class or as filling a particular character (vide
Central Talkies Ltd. v. Dwarka Prasad [AIR
1961 SC 606 : (1961) 3 SCR 495 : (1961) 1 Cri
LJ 740] and Ram Chandra v. State of U.P. [AIR
1966 SC 1888 : 1966 Supp SCR 393 : 1966 Cri
LJ 1514] )."

16. Taking a similar view in the context of
District
Judges
functioning
as
appellate
authorities under the Kerala Rent Control Act, in
Mukri Gopalan Vs. Cheppilat Puthanpurayil
Aboobacker5, a view was taken that where
District Judges are appointed as appellate
authorities under the provisions of a statute they
constitute a class and cannot be regarded as
persona designata. The decisions in the case of
Central Talkies Ltd. Vs. Dwarka Prasad6 and
Parthasaradhi Naidu v. Koteswara Rao7 were
referred, and it was observed as follows :-

"7. As noted earlier the appellate authority,
namely the District Judge, Thallassery has taken
the view that since he is a persona designata he
cannot resort to Section 5 of the Limitation Act
for condoning the delay in filing appeal before
him. So far as this reasoning of the appellate
authority is concerned Mr Nariman, learned
counsel for respondent fairly stated that he does
not support this reasoning and it is not his say
that the appellate authority exercising powers
under Section 18 of the Rent Act is a persona
designata. In our view the said fair stand taken
by learned counsel for respondent is fully
justified. It is now well settled that an authority
can be styled to be persona designata if powers
are conferred on a named person or authority
and such powers cannot be exercised by anyone
else. The scheme of the Act to which we have
referred earlier contraindicates such appellate
authority to be a persona designata. It is clear
that the appellate authority constituted under
Section 18(1) has to decide lis between parties
in a judicial manner and subject to the revision
of its order, the decision would remain final
between the parties. Such an authority is
constituted by designation as the District Judge
of the district having jurisdiction over the area
over which the said Act has been extended. It
becomes obvious that even though the District
Judge concerned might retire or get transferred
or may otherwise cease to hold the office of the
District Judge his successor-in-office can pick
up the thread of the proceedings from the stage
where it was left by his predecessor and can
function as an appellate authority under Section
18. If the District Judge was constituted as an
444 INDIAN LAW REPORTS ALLAHABAD SERIES
appellate authority being a persona designata or
as a named person being the appellate authority
as assumed in the present case, such a
consequence, on the scheme of the Act would not
follow. In this connection, it is useful to refer to
a decision of this Court in the case of Central
Talkies Ltd. v. Dwarka Prasad [AIR 1961 SC
606 : (1961) 1 Cri LJ 740]. In that case
Hidayatullah, J. speaking for the Court had to
consider whether Additional District Magistrate
empowered under Section 10(2) of Criminal
Procedure Code to exercise powers of District
Magistrate was a persona designata. Repelling
the contention that he was a persona designata
the learned Judge made the following pertinent
observations:

"9. A persona designata is ''a person who is
pointed out or described as an individual, as
opposed to a person ascertained as a member of
a class, or as filling a particular character'. (See
Osborn's Concise Law Dictionary, 4th Edn., p.
253). In the words of Schwabe, C.J. in
Parthasaradhi Naidu v. Koteswara Rao [ILR
(1924) 47 Mad 369 : AIR 1924 Mad 561 (FB)] ,
personae designatae are ''persons selected to act
in their private capacity and not in their capacity
as Judges'. The same consideration applies also
to a well-known officer like the District
Magistrate named by virtue of his office, and
whose powers the Additional District Magistrate
can also exercise and who can create other
officers equal to himself for the purposes of the
Eviction Act. The decision of Sapru, J. in the
Allahabad case, with respect, was erroneous."

Applying the said test to the facts of the
present case it becomes obvious that appellate
authorities as constituted under Section 18 of the
Rent Act being the District Judges they
constituted a class and cannot be considered to
be persona designata." (emphasis supplied)

17. The exposition of law, made as a
consequence, in Mukri Gopalan case, was that
once it is held that the appellate authority is not
a persona designata, it becomes obvious that it
functions as a court. Referring to an earlier
decision in Brajnandan Sinha Vs. Jyoti
Narain8, it was observed that the tests for
determining whether an authority is functioning
as a court, in the strict sense of the term, an
essential condition is that the court should have,
apart from trappings of a judicial tribunal, power
to give a decision or a definitive judgment which
has finality and authoritativeness. Further,
placing reliance upon the decision in Virindar
Kumar Satyawadi Vs. State of Punjab9, it
was stated that what distinguishes a court from a
quasi-judicial tribunal is that it is charged with a
duty to decide disputes in a judicial manner and
declare the rights of parties in a definitive
judgment. It was observed as follows : (Mukri
Gopalan case, SCC pp. 14-15, para 8).

"8. Once it is held that the appellate
authority functioning under Section 18 of the
Rent Act is not a persona designata, it becomes
obvious that it functions as a court. In the
present case all the District Judges having
jurisdiction over the areas within which the
provisions of the Rent Act have been extended
are constituted as appellate authorities under
Section 18 by the Government notification noted
earlier. These District Judges have been
conferred the powers of the appellate authorities.
It becomes therefore, obvious that while
adjudicating upon the dispute between the
landlord and tenant and while deciding the
question whether the Rent Control Court's order
is justified or not such appellate authorities
would be functioning as courts. The test for
determining whether the authority is functioning
as a court or not has been laid down by a series
of decisions of this Court. We may refer to one
of them, in the case of Thakur Jugal Kishore
Sinha v. Sitamarhi Central Coop. Bank Ltd.
[(1967) 3 SCR 163 : AIR 1967 SC 1494] In that
case this Court was concerned with the question
whether the Assistant Registrar of Cooperative
Societies functioning under Section 48 of the
Bihar and Orissa Cooperative Societies Act,
11 All. Radha Kishan Yadav & Ors. Vs. The State of U.P. & Ors.
445
1935 was a court subordinate to the High Court
for the purpose of Contempt of Courts Act,
1952. While answering the question in the
affirmative, a Division Bench of this Court
speaking through Mitter, J. placed reliance
amongst others on the observations found in the
case of Brajnandan Sinha v. Jyoti Narain [(1955)
2 SCR 955 : AIR 1956 SC 66] wherein it was
observed as under:

"It is clear, therefore, that in order to
constitute a court in the strict sense of the term,
an essential condition is that the court should
have, apart from having some of the trappings of
a judicial tribunal, power to give a decision or a
definitive judgment which has finality and
authoritativeness which are the essential tests of
a judicial pronouncement."

Reliance was also placed on another
decision of this court in the case of Virindar
Kumar Satyawadi v. State of Punjab [(1955) 2
SCR 1013 : AIR 1956 SC 153]. Following
observations found (at SCR p. 1018) therein
were pressed in service:

"It may be stated broadly that what
distinguishes a court from a quasi-judicial
tribunal is that it is charged with a duty to decide
disputes in a judicial manner and declares the
rights of parties in a definitive judgment. To
decide in a judicial manner involves that the
parties are entitled as a matter of right to be
heard in support of their claim and to adduce
evidence in proof of it. And it also imports an
obligation on the part of the authority to decide
the matter on a consideration of the evidence
adduced and in accordance with law. When a
question therefore arises as to whether an
authority created by an Act is a court as
distinguished from a quasi-judicial tribunal,
what has to be decided is whether having regard
to the provisions of the Act it possesses all the
attributes of a court."

When the aforesaid well settled tests for
deciding whether an authority is a court or not
are applied to the powers and functions of the
appellate authority constituted under Section 18
of the Rent Act, it becomes obvious that all the
aforesaid essential trappings to constitute such
an authority as a court are found to be present..."

18.