# LIFE INSURANCE CORPORATION OF INDIA v. NANDINI J. SHAH & ORS

- **Citation:** [2018] 2 S.C.R. 277
- **Court:** Supreme Court of India
- **Decided:** 2018-02-20
- **Case number:** Civil Appeal No. 15536 of 2017
- **Bench:** Dipak Misra, Amitava Roy, A. M. Khanwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/life-insurance-corporation-of-india-v-nandini-j-shah-ors-32871
- **Pages:** 58

## Headnote

Letters Patent Appeal:
Letters Patent Appeal (LPA) against order passed in Writ
petition u/Art. 226/227 - Maintainability of - Held: The Writ petition
against order of Appellate Officer (District Judge) under Public
Premises Act, was a petition against order of a civil judge - Such
order is amenable to scrutiny of High Court only in exercise of
jurisdiction u/Art. 227 and not u/Art. 226 - Therefore, LPA against
order in Writ Petition u/Art. 227 was not maintainable - Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 - s. 9 -
Constitution of India - Arts. 226 and 227.
Public Premises (Eviction of Unauthorised Occupants) Act,
1971:
s.9 - Order of District Judge - In exercise of power u/s. 9 as
an Appellate Officer - Whether such order is passed in capacity of
a Civil Court or persona designata - Held: Power exercised by
Appellate Officer u/s. 9 is a judicial power and not executive
power - District Judge of the City Civil Court and other judicial
officers of these courts constitute a class and cannot be considered
as persona designata - Legislative intent behind providing an appeal
u/s. 9 before Appellate Officer to be District Judge is indicative of
the fact that the power to be exercised by the Appellate Officer is
not in his capacity as a persona designate, but a judicial Officer -
Therefore, the Appellate Officer while exercising power u/s. 9 does
not act as a persona designata, but in his capacity as a pre-existing
judicial authority in the district i.e. District Judge.
Allowing the appeal, the Court
HELD: 1.1 Sub-section (1) of Section 9 of Public Premises
(Eviction of Unatuhorised Occupants) Act, 1971 postulates that
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[2018] 2 S.C.R.
an appeal shall lie from every order of the estate Officer, passed
under the Act, to an Appellate Officer. As to who shall be the
Appellate Officer, has also been specified in the same provision.
It predicates the District Judge of the district in which the public
premises are situated or such other judicial officer in that district
of not less than 10 years standing as the District Judge to be
designated for that purpose. The first part of the provision does
suggest that the appeal shall lie to an Appellate Officer, however,
it does not follow therefrom that the Appellate Officer is persona
designata. Something more is required to hold so. Had it been a
case of designating a person by name as an Appellate Officer, the
concomitant would be entirely different. However, when the
Appellate Officer is either the District Judge of the district or
any another judicial officer in that district possessing necessary
qualification who could be designated by the District Judge, the
question of such investiture of power of an appellate authority in
the District Judge or Designated Judge would by no standards
acquire the colour or for that matter trappings of persona
designata. [Para 30] [317-A-D]
1.2 The power to be exercised by the Appellate Officer in
terms of Section 9 is a judicial power of the State which is quite
distinct from the executive power of the State. The District Judge
or designated judicial officer exercises judicial authority within
his jurisdiction. As the Act predicates the Appellate Officer is to
be a District Judge or judicial officer, it is indicative of the fact of
a pre existing authority exercising judicial power of the State.
District Judge is the creature of Section 5 of the Maharashtra
Civil Courts Act, 1869, who presides over a District Court
invariably consisting of more than one Judge in the concerned
district. [Para 30] [317-D-F]
1.3 On the similar lines, the Bombay City Civil Court has
been constituted under Section 3 of the Bombay City Civil Court
Act, 1948, with jurisdiction to receive, try and dispose of all suits
and other proceedings of a civil nature arising within the Greater
Bombay except a suit or proceedings which are cognizable by
the High Court referred to therein and by Small Causes Court.
[Para 30]

## Text

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[2018] 2 S.C.R. 277
277
LIFE INSURANCE CORPORATION OF INDIA
v.
NANDINI J. SHAH & ORS.
(Civil Appeal No. 15536 of 2017)
FEBRUARY 20, 2018
[DIPAK MISRA, CJI, AMITAVA ROY AND
A. M. KHANWILKAR, JJ.]
Letters Patent Appeal:
Letters Patent Appeal (LPA) against order passed in Writ
petition u/Art. 226/227 - Maintainability of - Held: The Writ petition
against order of Appellate Officer (District Judge) under Public
Premises Act, was a petition against order of a civil judge - Such
order is amenable to scrutiny of High Court only in exercise of
jurisdiction u/Art. 227 and not u/Art. 226 - Therefore, LPA against
order in Writ Petition u/Art. 227 was not maintainable - Public
Premises (Eviction of Unauthorised Occupants) Act, 1971 - s. 9 -
Constitution of India - Arts. 226 and 227.
Public Premises (Eviction of Unauthorised Occupants) Act,
1971:
s.9 - Order of District Judge - In exercise of power u/s. 9 as
an Appellate Officer - Whether such order is passed in capacity of
a Civil Court or persona designata - Held: Power exercised by
Appellate Officer u/s. 9 is a judicial power and not executive
power - District Judge of the City Civil Court and other judicial
officers of these courts constitute a class and cannot be considered
as persona designata - Legislative intent behind providing an appeal
u/s. 9 before Appellate Officer to be District Judge is indicative of
the fact that the power to be exercised by the Appellate Officer is
not in his capacity as a persona designate, but a judicial Officer -
Therefore, the Appellate Officer while exercising power u/s. 9 does
not act as a persona designata, but in his capacity as a pre-existing
judicial authority in the district i.e. District Judge.
Allowing the appeal, the Court
HELD: 1.1 Sub-section (1) of Section 9 of Public Premises
(Eviction of Unatuhorised Occupants) Act, 1971 postulates that
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[2018] 2 S.C.R.
an appeal shall lie from every order of the estate Officer, passed
under the Act, to an Appellate Officer. As to who shall be the
Appellate Officer, has also been specified in the same provision.
It predicates the District Judge of the district in which the public
premises are situated or such other judicial officer in that district
of not less than 10 years standing as the District Judge to be
designated for that purpose. The first part of the provision does
suggest that the appeal shall lie to an Appellate Officer, however,
it does not follow therefrom that the Appellate Officer is persona
designata. Something more is required to hold so. Had it been a
case of designating a person by name as an Appellate Officer, the
concomitant would be entirely different. However, when the
Appellate Officer is either the District Judge of the district or
any another judicial officer in that district possessing necessary
qualification who could be designated by the District Judge, the
question of such investiture of power of an appellate authority in
the District Judge or Designated Judge would by no standards
acquire the colour or for that matter trappings of persona
designata. [Para 30] [317-A-D]
1.2 The power to be exercised by the Appellate Officer in
terms of Section 9 is a judicial power of the State which is quite
distinct from the executive power of the State. The District Judge
or designated judicial officer exercises judicial authority within
his jurisdiction. As the Act predicates the Appellate Officer is to
be a District Judge or judicial officer, it is indicative of the fact of
a pre existing authority exercising judicial power of the State.
District Judge is the creature of Section 5 of the Maharashtra
Civil Courts Act, 1869, who presides over a District Court
invariably consisting of more than one Judge in the concerned
district. [Para 30] [317-D-F]
1.3 On the similar lines, the Bombay City Civil Court has
been constituted under Section 3 of the Bombay City Civil Court
Act, 1948, with jurisdiction to receive, try and dispose of all suits
and other proceedings of a civil nature arising within the Greater
Bombay except a suit or proceedings which are cognizable by
the High Court referred to therein and by Small Causes Court.
[Para 30] [318-B-C]
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1.4 The District Judge or Principal Judge exercises judicial
power of the State and is an authority having its own hierarchy of
superior and inferior Courts, the law of procedure according to
which it would dispose of matters coming before it depending on
its nature and jurisdiction exercised by it, acting in judicial manner.
The District Judge or Principal Judge of the City Civil Court is
the officer presiding over the Court and derives his description
from the nomenclature of the Court. Even if the District Judge/
Principal Judge of the City Civil Court might retire or get
transferred, his successor-in-office can pick up the thread of the
proceedings under Section 9 of the 1971 Act from the stage where
it was left by his predecessor and can function as an appellate
authority. The District Judge/Principal Judge of the City Civil
Court and other judicial officers of these Courts possessing
necessary qualifications constitute a class and cannot be
considered as persona designata. The Appellate Officer, therefore,
has to function as a Court and his decision is final in terms of
Section 10 of 1971 Act. [Para 30] [318-D-G]
1.5 The legislative intent behind providing an appeal under
Section 9 before the Appellate Officer to be the District Judge of
the concerned District Court in which the public premises are
situated or such other judicial officer in that district possessing
necessary qualification to be designated by the District Judge
for that purpose, is indicative of the fact that the power to be
exercised by the Appellate Officer is not in his capacity as persona
designata but as a judicial officer of the pre existing Court. The
historical background of the 1971 Act would make no difference
to the aforementioned analysis. [Para 30] [318-G-H; 319-A]
1.6 The expression used in Section 9 is "Appellate Officer"
and not "Appellate Authority" however, would neither make any
difference nor undermine the status of the District Judge or the
designated judicial officer so as to reckon their appointment as
persona designata. The thrust of Section 9(1) is to provide for
remedy of an appeal against the order of the Estate Officer before
the District Judge who, undeniably, is a pre-existing authority
and head of the judiciary within the district, discharging judicial
power of the State including power to condone the delay in filing
of the appeal and to grant interim relief during the pendency of
LIC OF INDIA v. NANDINI J. SHAH & ORS.
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the appeal. Though described as an Appellate Officer, the District
Judge, for deciding an appeal under Section 9, can and is expected
to exercise the powers of the civil court. [Para 31] [319-B-D]
1.7 The expression "appellate officer" has not been defined
in the 1971 Act, unlike the definition of "estate officer" contained
in Section 2(1)(b) of that Act. The appellate officer cannot be
considered as a statutory authority, as defined in the dictionary
clause in Section 2(1)(fa) of the 1971 Act. Even in respect of the
appeal under Section 9 of the 1971 Act, the Principal Judge of
the City Civil Court or District Judge is competent to hear the
appeal himself or designate some other judicial officer within his
jurisdiction possessing requisite qualification. It is implicit in
Section 9 read with the provisions of the Acts constituting the
District Judiciary that the head of the district judiciary is the
District Judge or Principal Judge of the City Civil Court and
Section 9 of the 1971 Act makes it explicit, by investing authority
in the District Judge or Principal Judge of the City Civil Court,
to designate any other judicial officer within his jurisdiction
possessing essential qualifications, to hear such appeals. This is
a clear departure from the appointment of a District Judge as a
persona designata. The Additional District Judge or judicial officer
possessing essential qualification, therefore, is not an inferior
appellate officer within the meaning of Section 9 of the 1971 Act.
There is enough indication in Section 9 of the 1971 Act to spell
out the legislative intent that the remedy of appeal before the
appellate officer is not before a persona designata but a preexisting judicial authority in the district concerned. [Para 39] [323B-F]
1.8 The fact that there is no express indication in the 1971
Act about the procedure to be adopted or followed by the appellate
officer, it would not follow therefrom that the District Judge or
designated judicial officer who hears the appeals under Section
9, does so not as a Court but as a persona designata. In that
case, the procedure for hearing of the appeals will be governed
by the provisions under the 1971 Act and Rules framed
thereunder and including the enactment under which the judicial
authority has been created, such as Maharashtra Civil Courts
Act and City Civil Courts Act. Such a pre-existing judicial
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authority, by implication, would be bound to follow the procedure
underlying the said enactments and also observe the doctrine of
fairness in affording opportunity. [Para 41] [324-C-F]
1.9 Thus, 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. [Para 49] [328-C-D]
Thakur Das (Dead) by LRs v. State of M.P. & Anr. (1978)
1 SCC 27 : [1978] 1 SCR 732; Mukri Gopalan v.
Cheppilat Puthanpurayil Aboobacker (1995) 5 SCC 5 :
[1995] 2 Suppl. SCR 1; Central Talkies Ltd. v. Dwarka
Prasad [1961] 3 SCR 495; Maharashtra State Financial
Corporation v. Jaycee Drugs & Pharmaceuticals (P)
Ltd. (1991) 2 SCC 637 : [1991] 1 SCR 480; Asnew
Drums (P) Ltd. v. Maharashtra State Finance
Corporation (1971) 3 SCC 602 : [1972] 1 SCR 351;
Ram Chander Aggarwal & Anr. v. State of Uttar Pradesh
& Anr. [1966] Supp. SCR 393; Balakrishna Udayar v.
Vasudeva Aiyar 44 IA 261;Shyam Sunder Agarwal and
Co. v. Union of India (1996) 2 SCC 132 - relied on.
Jinda Ram v. UOI (1999) 2 MP LJ 221; M. Papa Naik
v. Commissioner City Municipal Council (1996) 3 Kant
LJ 86 - approved.
Nusli Neville Wadia v. New India Assurance Co. Ltd.
2010 (2) Mh. L.J. 978; N.P. Berry v. Delhi Transport
Corporation 15 (1979) DLT 108; State of Mysore v. P.
Shankaranarayana Rao (1975) 2 Kar. LJ 280;Ganga
Ram Dohrey v. State of U.P. AIR 2002 Allahabad 238;
M/s. Pitman's Shorthand Academy v. M/s. B. Lila Ram
& Sons AIR (37) 1950 East Punjab 181 - not approved.
Thakur Jugal Kishore Sinha v. Sitamarhi Central CoLIC OF INDIA v. NANDINI J. SHAH & ORS.
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op Bank Ltd. [1967] 3 SCR 163; Brajnandan Sinha v.
Jyoti Narain [1955] 2 SCR 955; Virender Kumar
Satyawadi v. State of Punjab [1955] 2 SCR 1013;
Prakash Securities Pvt. Ltd. v. Life Insurance Corpn.
of India & Anr. 2012 (4) Bom. C.R.1.; Sizerali
Mohamedali Lodhia v. Gujarat State Road Transport
Corp. 2001 (2) Guj. L.R. 1120; M. Abdul Wahid Sahib
v. Dewanjee Abdul Khader Sahib AIR 1947 Madras
400; C.S. Balarama Iyer & Anr. v. Krishnan Kunchandi
AIR 1968 Kerala 240; Y. Mahabaleswarappa v.
M. Gopalasami Mudaliar AIR 1935 Madras 673;
Keshav Ramchandra v. Municipal Borough, Jalgaon
& Ors. AIR 1946 Bombay 64; Jagmohan Surajmal
Marwadi v. Venkatesh Gopal Ranade AIR 1933
Bombay 105; Municipality of Sholapur v. Tuljaram
Krishnasa Chavan AIR 1931 Bombay 582; Thavasikani
Nadar v. The Election Commissioner (1974) II Madras
LJR 44; Bathula Krishna Brahman & Ors. v. Daram
Chenchi Reddy & Ors. AIR 1959 AP 129; Surindra
Mohan v. Dharam Chand Abrol AIR 1971 J & K 76;
Kiron Chandra Bose v. Kalidas Chatterji AIR 1943
Calcutta 247; P. Venkata Somaraji & Ors. v. Principal
Munsif & Ors. AIR 1968 AP 22; S. Srinivas Rao v.
High Court of A. P. AIR 1989 AP 258; Collector,
Varanasi v. Gauri Shanker Misra & Ors. AIR 1968 SC
384; Hanskumar Kishanchand v. Union of India AIR
1958 SC 947; Naresh Shridhar Mirajkar v. State of
Maharashtra AIR 1967 SC; Gangadhar Bapurao Gadre
v. Hubli Municipality 1925 B.L.R. 519; Abid Ali v.
District Judge, Baharaich (1987 Allahabad Law Journal
179); Parthasaradhi Naidu v. Koteswara Rao ILR
(1924) 47 Mad 369 - referred to.
2.1 An order passed by a Civil Court is amenable to scrutiny
of the High Court only in exercise of jurisdiction under Article
227 of the Constitution of India, which is different from Article
226 of the Constitution. No writ can be issued against the order
passed by the Civil Court and, therefore, no letters patent appeal
would be maintainable. [Para 53] [332-H; 333-A]
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2.2 In 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 the conclusion that the order
passed by the District Judge as an Appellate Officer is an order
of the Subordinate Court, the challenge thereto must ordinarily
proceed only under Article 227 of the Constitution of India and
not under Article 226. Moreover, on a close scrutiny of the
decision of the Single Judge of the High Court, the true nature
and substance of the order of the 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. [Para 50] [328-D-G]
2.3 The Division Bench apart from relying on Nusli Neville
Wadia case and Prakash Securities case, did not make any other
analysis, to entertain the Letters Patent Appeal, as to in what
manner the judgment of the Single Judge would come within the
purview of exercise of powers under Article 226 of the
Constitution of India. Absent that analysis, the Division Bench
could not have assumed jurisdiction to entertain the Letters
Patent Appeal merely by referring to the earlier decisions. [Para
54] [333-B-C]
2.4 The Division Bench of the High Court ought to have
dismissed the Letters Patent Appeal filed by the respondents as
not maintainable. In that event, it was not open to the Division
Bench to undertake analysis on the merits of the case. That was
impermissible and of no avail, being without jurisdiction. That
will leave the respondents with an adverse decision of the Single
Judge dismissing their writ petition, whereby the eviction order
passed by the Estate Officer and confirmed by the City Civil Court
has been upheld. However, to subserve the ends of justice, the
respondents are given libertyto challenge the decision of the
learned Single Judge by way of appropriate remedy. [Paras 55,
56] [333-D-E, G]
Radhey Shyam & Another v. Chabbi Nath & Ors. (2015)
5 SCC 423 : [2015] 3 SCR 197; Ram Kishan Fauji v.
State of Haryana (2017) 5 SCC 533; Jogendrasinghji
LIC OF INDIA v. NANDINI J. SHAH & ORS.
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Vijaysinghji v. State of Gujarat (2015) 9 SCC 1 : [2015]
6 SCR 504 - relied on.
Case Law Reference
[1978] 1 SCR 732
relied on
Para 15
[1995] 2 Suppl. SCR 1
relied on
Para 15
[1967] 3 SCR 163
referred to
Para 15
[1961] 3 SCR 495
relied on
Para 15
[1955] 2 SCR 955
referred to
Para 15
[1955] 2 SCR 1013
referred to
Para 15
[1991] 1 SCR 480
relied on
Para 15
[1972] 1 SCR 351
relied on
Para 15
[2015] 3 SCR 197
relied on
Para 15
[2015] 1 SCC 1
relied on
Para 15
[1966] Supp. SCR 393
relied on
Para 15
(2017) 5 SCC 533
relied on
Para 15
[2015] 6 SCR 504
relied on
Para 15
2010 (2) Mh. L.J. 978
not approved
Para 16
2012 (4) Bom. C.R.1.
referred to
Para 16
15 (1979) DLT 108
not approved
Para 16
(1975) 2 Kar. LJ 280
not approved
Para 16
AIR 2002 Allahabad 238
not approved
Para 16
2001 (2) Guj. L.R. 1120
referred to
Para 16
AIR (37) 1950 East Punjab 181
not approved
Para 17
AIR 1947 Madras 400
referred to
Para 17
AIR 1968 Kerala 240
referred to
Para 17
AIR 1935 Madras 673
referred to
Para 17
AIR 1946 Bombay 64
referred to
Para 17
AIR 1933 Bombay 105
referred to
Para 17
AIR 1931 Bombay 582
referred to
Para 17
(1974) II Madras LJR 44
referred to
Para 17
AIR 1959 AP 129
referred to
Para 17
(1999) 2 MP LJ 221
approved
Para 18
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(1996) 3 Kant LJ 86
approved
Para 18
AIR 1971 J&K 76
referred to
Para 18
AIR 1943 Calcutta 247
referred to
Para 18
AIR 1968 AP 22
referred to
Para 18
AIR 1989 AP 258
referred to
Para 18
AIR 1968 SC 384
referred to
Para 18
AIR 1958 SC 947
referred to
Para 18
AIR 1967 SC 1
referred to
Para 18
44 IA 261
relied on
Para 27
1925 B.L.R. 519
referred to
Para 32
AIR 1931 Bombay 582
referred to
Para 32
AIR 1956 SC 153
referred to
Para 40
(1987 Allahabad Law Journal 179) referred to
Para 45
(1996) 2 SCC 132
relied on
Para 46
ILR (1924) 47 Mad 369
relied on
Para 47
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15536
of 2017.
From the Judgment and Order dated 12.10.2012 by the Division
Bench of the Hon'ble High Court of Judicature at Bombay in Letters
Patent Appeal No. 181 of 2012.
Ranjit Kumar, SG, Mrs. Indra Sawhney, Aditya Shandilya,
Shashank Mishra, Advs. for the Appellant.
Ms. Sonal, Anupam Mishra, Harikumar V., Ms. Pooja Singh,
V. J. Francis, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. The seminal question posed in
this appeal, by special leave, is whether the order passed by the City
Civil Court in exercise of power under Section 9 of the Public Premises
(Eviction of Unauthorised Occupants) Act, 1971, as an Appellate Officer,
is in the capacity of a Civil Court or persona designata?
2. When this special leave petition was listed for admission on
12.09.2017, the Court passed the following order:
LIC OF INDIA v. NANDINI J. SHAH & ORS.
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"Heard Mr. Ranjit Kumar, learned Solicitor General
appearing on behalf of the petitioner and Ms. Sonal, learned
counsel appearing on behalf of the respondents.
As the issue was to be debated with regard to the
maintainability of the Letters Patent Appeal, learned Solicitor
General has placed reliance on Radhey Shyam & Anr. vs.
Chhabi Nath & Ors., (2015) 5 SCC 423 and Ram Kishan
Fauji vs. State of Haryana & Ors., (2017) 5 SCC 533.
 Ms. Sonal, learned counsel representing the respondents,
would contend that there is no quarrel about the proposition
that when a challenge is made to the order passed by the
Civil Court in a writ proceeding, it has to be treated as a
proceeding under Article 227 of the Constitution of India
and, therefore, no Letters Patent Appeal would lie. But in a
case under the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971, the Estate Officer cannot be
considered as a Court and further the appellate forum would
decide the appeal under Section 9 of the Act as the appellate
officer and as per the decision rendered by the Division
Bench of the Bombay High Court in Nusli Neville Wadia vs.
New India Assurance Co. Ltd., 2010 (2) Mh.L.J.978, which
has placed reliance on a judgment of the Delhi High Court
in N.P.Berry vs. Delhi Transport Corporation and Anr.
15(1979) DLT 108 (para 19), it is not a Civil Court and
therefore, the order passed by the said appellate forum can
be challenged under Sections 226 and 227 of the
Constitution of India and in that event, an intra-court appeal
would be maintainable.
 List for further hearing on 21.09.2017."
The hearing on admission of the special leave petition continued on
21.09.2017 when the Court passed the following order :
"Leave granted.
Heard Mr.Ranjit Kumar, learned senior counsel for the
appellant and Ms.Sonal for the respondents.
In the course of hearing Mr.Ranjit Kumar, learned senior
counsel appearing for the appellant submitted that Letters
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Patent Appeal at the instance of the respondents before the
High Court of Judicature at Bombay was not maintainable.
Ms.Sonal, learned counsel appearing for the respondents
has, per contra, argued that the appeal was maintainable.
As we have heard the matter at length with regard to
maintainability of the Letters Patent Appeal before the
Division Bench of the High Court, it is appropriate to render
a judgment.
In view of the aforesaid, judgment is reserved.
Learned counsel for the parties shall submit written
submissions by 3rd October, 2017."
3. By this judgment, we shall answer the preliminary issue as to
whether the Letters Patent Appeal filed by the contesting respondents
before the High Court of Judicature at Bombay against the decision of
the learned Single Judge rendered in a writ petition (purportedly filed
under Articles 226 and 227 of the Constitution of India), questioning the
correctness and validity of the decision of the City Civil Court, Mumbai
in Miscellaneous Civil Appeal No.121 of 2011 dated 03.04.2012, which
was affirmed by the learned Single Judge, was maintainable.
4. We may now advert to the brief factual background giving rise
to this appeal: On or around 2nd May 2005, the appellant initiated eviction
Case No. 21 and 21A of 2015 against the respondents before the Estate
Officer under Sections 5 and 7 of the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 (for short "the Act") for eviction of
the respondents from the licenced premises on 3rd floor, 49-55, Bombay
Samachar Marg, Fort, Mumbai 400023 admeasuring about 258 sq. ft.
including a balcony of 38 sq. ft., recovery of damages and recovery of
arrears towards repairs and maintenance charges amounting to Rs.
1364/-. The eviction was sought on two grounds: (a) respondent No.1
had illegally and unauthorisedly sublet, assigned or transferred the licenced
premises or part thereof to a partnership firm (respondent No.2) and
three companies (respondent Nos. 3 to 5); and (b) respondent No. 1
was in arrears of repair and maintenance charges amounting to Rs.
1364/-.
5. Respondent Nos.1 and 2 filed their Reply, stating inter alia
that respondent No.1's grandfather Shri P.T. Shah was the original tenant
of the premises since before 1937. At that time, the building in which
LIC OF INDIA v. NANDINI J. SHAH & ORS.
[A. M. KHANWILKAR, J.]
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the premises are situated was owned by the predecessor-in-title of the
appellant. Respondent Nos.1 and 2 traced the devolution of rights in the
premises and pointed out that respondent No.2 was a partnership firm
of the daughter-in-law of the original tenant, her daughter (present
respondent No.1), Shri R.C. Vakharia and Shri K.C. Vakharia. It was
also pointed out that respondent No.3 was never incorporated and it
never came into existence. It was further pointed out that respondent
Nos.4 and 5 were private limited companies wholly owned by the family
members of the original tenant, in which the 100% shareholding and all
the directors were the daughter-in-law of the original tenant and her
immediate family members viz., the daughter-in-law of the original tenant,
her daughter, her son-in-law and her grandson. Sub-letting, assignment
or transfer of the premises or any part thereof to respondent Nos.2 to 5
was denied. Respondent No.1 asserted that she was in occupation,
control and possession of the premises and regularly paid rent of Rs.
895/- per month to the appellant. It was also pointed out that respondent
No.1 was not in any arrears. The calculation of damages was seriously
disputed. Respondent Nos.3 to 5 did not appear before the Estate Officer.
Evidence was led before the Estate Officer by the appellant and
respondent Nos. 1 and 2.
6. By its Order dated 5th February 2011, the Estate Officer held
that respondent No.1 was not in arrears of repairs and maintenance
charges as alleged by the appellant. However, it held that respondent
No.1 had unauthorisedly sub-let the premises to respondent Nos.2 to 5.
The Estate Officer also held that the appellant was entitled to damages
from the respondents at the rate of Rs.48,142/- per month from 1st
December, 2004 till restoration of possession with simple interest at the
rate of 9% per annum.
7. Respondent Nos.1 and 2 challenged the aforesaid order of the
Estate Officer before the Appellate Officer under Section 9 of the Act,
being the designate of the Principal Judge of the City Civil Court at
Mumbai. The appellant did not challenge the finding of the Estate Officer
insofar as he had held that respondent No.1 was not in arrears of repairs
and maintenance charges. The said finding has become final.
8. By its order dated 3rd April, 2012, the Appellate Officer held
that (a) there was no subletting to the partnership firm (respondent No.2),
as it was established that it was the firm of the original occupant and (b)
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there was nothing to show that respondent Nos.3 to 5 also belonged to
the original occupant as no document was produced showing their
constitution and hence, it amounted to subletting. The Appellate Officer
upheld the order of eviction passed by the Estate Officer and the order
for damages along with interest.
9. Respondent Nos.1 and 2 challenged the aforesaid orders of
the Estate Officer and the Appellate Officer before the learned Single
Judge of the Bombay High Court by way of Writ Petition No.4337 of
2012. Respondent Nos.1 and 2 prayed for issuance of a Writ of Certiorari
or a writ in the nature of certiorari or any other appropriate writ, order or
direction under Articles 226 and 227 of the Constitution of India and to
set aside the Judgment and Orders of the Appellate Officer and the
Estate Officer. The appellant did not challenge the finding of the Appellate
Officer insofar as it had held that there was no subletting by respondent
No.1 to the partnership firm (respondent No.2). The said finding has
become final.
10. By its order dated 14th August 2012, the learned Single Judge
of the Bombay High Court dismissed the aforesaid Writ Petition filed by
respondent Nos.1 and 2 by holding that respondent Nos.3 to 5 are separate
legal entities; the authorities below had concurrently held that the appellant
had established its case in that behalf and that no material was produced
before it for taking a different view in the matter.
11. Respondent Nos.1 and 2 challenged the aforesaid order of
the learned Single Judge before the Division Bench of the Bombay High
Court vide Letters Patent Appeal No.181 of 2012.
12. The Division Bench of the Bombay High Court by its Order
dated 12th October, 2012, rejected the preliminary objection of the
appellant that the Letters Patent Appeal was not maintainable against
the order of the learned Single Judge and also allowed the appeal on
merits holding that documents showing that 100% shareholding of
respondent Nos.4 and 5 belonged to the occupant and her immediate
family members and that all the directors of respondent Nos.4 and 5
were the occupants and immediate family members, were on record,
which fact has not been taken into consideration by the Appellate Officer.
The Division Bench held that by lifting the corporate veil, it can be seen
that the companies are alter egos of the occupant and that there is no
subletting to the Companies.
LIC OF INDIA v. NANDINI J. SHAH & ORS.
[A. M. KHANWILKAR, J.]
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13. On the question of maintainability of the Letters Patent Appeal,
the Division Bench of the High Court answered the same in the following
words:
"13. Firstly we will deal with the contention regarding
maintainability of this Letters Patent Appeal. Learned counsel
for the Respondents urged that earlier writ petitions
challenging the orders passed in proceedings under the
Public Premises Act were being entertained by the Division
Bench and after the decision of the Full Bench of this Court
in the case of M/s. Prakash Securities Private Limited V/s.
LIC of India [2012 (4) Bom. C.R.1] dated 26 April 2012,
they are now being placed before the Single Judge. He
contended that if the appeal is entertained from the orders
passed by the learned Single Judge in such petitions, then
the object of amending rules for hearing of such petitions
by the Single Judge for expeditious disposal will be lost.
Learned counsel for appellants on the other hand has drawn
our attention to the memo of the petition and the impugned
order of the learned Single Judge wherein it is mentioned
that the petition is filed and was entertained under Articles
226 & 227 of the Constitution of India, and contended that
therefore the appeal is maintainable.
14. It is true that the petitions arising out of the order passed
under the Public Premises Act were being heard by the
Division Bench. This was being done due to observation of
the Division Bench of this Court in the case of Nusli Neville
Wadia V/s. New India Assurance Co. Ltd. & Another [2010
(4) Bom. C.R. 807]. However by an order dated 15 November
2011, another Division Bench of this Court expressed doubt
about the correctness of the observation made in the case of
Nusli Neville Wadia (supra) and referred the issue as to
whether the petitions arising out of the orders passed under
the Public Premises Act should be heard by the Division Bench
or Single Judge, to the Full Bench for consideration. The
Full Bench in the case of Prakash Securities [2012 (4) Bom.
C.R. 1] (supra) found that clause 3 of the Rule 18 of Chapter
XVII of the Bombay High Court Appellate Side Rules 1960
was wide enough to include orders passed by any
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quasijudicial authority under any enactment, even if such
explanation is not covered by clause 1, 2, 4 to 43 of Rule
18. The Full Bench found that the order passed by
quasijudicial authority under the Public Premises Act is also
covered by Rule 18 (3) so as to indicate that the petitions
under Articles 226 & 227 of the Constitution of India
challenging such orders are to be heard and decided by the
Single Judge. Reference was accordingly disposed of by the
Full Bench by its judgment dated 26 April 2012. The Full
Bench held that the Appellate Side Rules as they stand,
provide that the petitions challenging the orders passed
under the Public Premises Act are required to be heard by
the learned Single Judge and therefore the observations made
in the case of Nusli Neville Wadia (supra), were not correct.
The petitions relating to orders passed under Public Premises
Act were being entertained by the Division Bench when the
rules provided that they should be entertained by the Single
Judge. Therefore there was no conscious decision to remove
the petitions arising from orders passed under the Public
Premises, from Division Bench and to place them before
Single Judge. In fact Full Bench found that these petitions
were being wrongly entertained by the Division Bench.
15. In the judgment of the Full Bench there is no indication
that Letters Patent Appeal arising out of the orders passed
by the Single Judge in proceedings under the Public Premises
Act will not be maintainable. If Letters Patent Appeals are
otherwise maintainable, judgment of the Full Bench does
not take away that right in respect of petitions challenging
the orders passed under Public Premises Act. Therefore the
argument advanced by the learned counsel on maintainability
of the appeal on this ground cannot be accepted.
Maintainability was not contested on any other ground. In
the present case, the petitioner has invoked both Articles
226 and 227 of the Constitution of India. The learned Judge
also has referred to the said Articles in the impugned order.
Furthermore, the Respondent Corporation is itself amenable
to writ jurisdiction of this Court, being a public corporation.
There is therefore no substance in the preliminary objection
LIC OF INDIA v. NANDINI J. SHAH & ORS.
[A. M. KHANWILKAR, J.]
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raised by the learned counsel for the Respondent that the
appeal is not maintainable and that it should be dismissed
at the threshold without looking at the merits of the matter."
14. This appeal by the appellant assails the opinion expressed by
the Division Bench not only on maintainability of the Letters Patent Appeal
but also on merits, whereby the Division Bench reversed the finding of
fact recorded by the Estate Officer and affirmed by both, the City Civil
Court, being the Appellate Officer and the learned Single Judge, whilst
rejecting the writ petition filed by the respondents. However, the argument
presently is confined to the preliminary issue about the maintainability of
the Letters Patent Appeal and if that contention of the appellant was to
be accepted, it would not be necessary for us to examine the other
matter raised in the appeal about the merits of the finding and conclusion
recorded by the Division Bench, being without jurisdiction. Instead, the
contesting respondents will have to be relegated to question the judgment
of the learned Single Judge in that behalf and if such appropriate remedy
is resorted to by the contesting respondents, only then it would become
necessary to analyse the same in those proceedings.
15. According to the appellant, the interplay of Section 9 of the
1971 Act read with the other provisions in the same Act, such as Sections
3, 8 and 10, makes it amply clear that the jurisdiction exercised by the
Appellate Officer, namely the City Civil Court Judge, in an appeal under
Section 9 of the Act, is in his capacity as a Civil Court and not persona
designata. If so, the remedy under Article 227 of the Constitution of
India alone could be availed in the fact situation of the present case and
not under Article 226, for issuance of a Writ of Certiorari. In the present
case, although the writ petition filed by the contesting respondents was
labelled as one under Articles 226 and 227 of the Constitution of India,
considering the nature and substance of the challenge, reasoning and
nature of the order passed by the learned Single Judge it could be pursued
only under Article 227 of the Constitution of India and not under Article
226 or for that matter under Article 226 read with Article 227 of the
Constitution of India. Resultantly, the Division Bench committed manifest
error in entertaining the Letters Patent Appeal against the decision of
the learned Single Judge of the same High Court. To buttress the
contention that the District Judge/Judicial Officer, referred to in Section
9 of the 1971 Act, does not exercise powers as persona designata,
reliance has been placed on the exposition of this Court in Thakur Das
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(Dead) by LRs Vs. State of M.P. & Anr.1 and in the cases of Mukri
Gopalan Vs. Cheppilat Puthanpurayil Aboobacker2, Thakur Jugal
Kishore Sinha Vs. Sitamarhi Central Coop Bank Ltd.3, Central
Talkies Ltd. Vs. Dwarka Prasad4, Brajnandan Sinha Vs. Jyoti
Narain5, Virender Kumar Satyawadi Vs. State of Punjab6,
Maharashtra State Financial Corporation Vs. Jaycee Drugs &
Pharmaceuticals (P) Ltd.7 and Asnew Drums (P) Ltd. Vs.
Maharashtra State Finance Corporation8. In support of the contention
that the order of the District Judge/Appellate Officer would be amenable
only to jurisdiction under Article 227 of the Constitution of India, reliance
has been placed on the decision of Radhey Shyam & Another Vs.
Chabbi Nath & Ors.9 and Ram Chander Aggarwal & Anr. Vs. State
of Uttar Pradesh & Anr.10 This contention is further elaborated on the
basis of the exposition in the case of Ram Kishan Fauji Vs. State of
Haryana11 and Jogendrasinghji Vijaysinghji vs State of Gujarat12,
wherein the Court observed that the maintainability of Letters Patent
Appeal would depend on the pleadings in the writ petition, nature and
character of the order passed by the learned Single Judge and the type
of directions issued, regard being had to the jurisdictional perspective in
the constitutional context. The appellant invited our attention to the
judgment of the learned Single Judge wherein the submissions made on
behalf of the writ petitioners (contesting respondents) have been noted
in paragraphs 9 to 11 and 15 and that of the appellant in paragraphs 12
and 16, as also the findings recorded by the learned Single Judge in
paragraphs 19 to 24. It was urged that the jurisdiction exercised by the
learned Single Judge was plainly ascribable to exercise of power of
superintendence under Article 227 and not of exercise of power to issue
a writ or in the nature of certiorari under Article 226 of the Constitution
of India. It was contended that the Letters Patent Appeal filed by the
1 1978 (1) SCC 27
2 1995 (5) SCC 5
3 1967 (3) SCR 163
4 1961 (3) SCR 495
5 1955 (2) SCR 955
6 1955 (2) SCR 1013
7 1991 (2) SCC 637
8 1971 (3) SCC 602
9 2015 (5) SCC 423
10 1966 Supp. SCR 393
11 2017(5) SCC 533
12 2015 (9) SCC 1
LIC OF INDIA v. NANDINI J. SHAH & ORS.
[A. M. KHANWILKAR, J.]
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contesting respondents before the Division Bench, therefore, was not
maintainable.
16. Per contra, the respondents would urge that the District Judge/
Appellate Officer exercises power under Section 9 of the 1971 Act as
persona designata and not as a Civil Court. Alluding to the decisions to
which we will advert to a little later, the respondents contend that when
a special statute creates an Appellate Officer and where it refers to the
Presiding Judge and not to the Court to be such Appellate Officer, then
it can be said that the reference has been made to the Judge as persona
designata. It is also well known that where the authority is the creation
of a statute and is indicated or identified by a official designation or as
one of a class, the provisions of statute would have to be looked into to
determine whether the intention was to single him out as persona
designata, his official designation being merely a further description of
him. The legislative scheme concerning the Act under consideration does
not indicate, in any manner, much less by necessary implication, that he
can exercise powers of the Court for adjudication of the appeal. However,
the powers and jurisdiction to be exercised have been circumscribed by
the special law for which reason also he would be a persona designata.
Furthermore, the Act gives finality to the order passed by the appellate
officer in terms of Section 10, which is indicative of the fact that the
appellate officer acts as a persona designata and not as a Court. The
provisions of the 1971 Act are a self-contained code delineating the
powers, jurisdiction and procedure different from general laws such as
Civil Procedure Code or Criminal Procedure Code. At the same time,
the jurisdiction of the ordinary courts has been barred in respect of the
matters to be dealt with under the statute. It is submitted that keeping in
mind the historical background of the 1971 Act, it is not permissible to
consider the appellate officer referred to in Section 9 of the Act as
discharging powers and jurisdiction of a Court. The appellate officer
referred to in Section 9 of the Act merely acts as a persona designata.
To buttress this contention, reliance has been placed on the decisions of
the High Courts dealing with this question, interpreting Section 9 of the
1971 Act and analogous provisions in the concerned State Public Premises
Act, namely; Nusli Neville Wadia Vs. New India Assurance Co. Ltd.13;
Prakash Securities Pvt. Ltd. Vs. Life Insurance Corp. of India &
Anr.14; N.P. Berry Vs. Delhi Transport Corporation15; State of
13 2010 (2) Mh. L.J. 978
14 2012 (4) Bom. C.R.1
15 15 (1979) DLT 108
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Mysore Vs. P.