The Supreme Court has held that an Appellate Officer, while discharging his duties under the Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, acts as a Court and not “persona designata”.
The judgment was rendered by a Bench of Chief Justice Dipak Misra and Justices Amitava Roy and AM Khanwilkar.
The judgment stems from an eviction case initiated by the appellant against the respondents before the Estate Officer under Sections 5 and 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (Act). The Estate Officer passed an order in favour of the appellant, whereupon the respondents filed an appeal before the Appellate Officer under Section 9 of the Act. The Appellate Officer upheld the order of eviction passed by the Estate Officer.
This was challenged before a Single judge of the Bombay High Court by way of a writ petition under Articles 226 and 227. The Single Judge also upheld the order of the Estate Officer and Appellate Officer and therefore, the appellants chose to file a Letters Patent Appeal before the Division Bench of the High Court.
The Division Bench of the High Court overturned the order of the Single judge, and also rejected the appellants’ contention that a Letters Patent Appeal was not maintainable in the case.
This led to the appeal in the Supreme Court.
The question before the Supreme Court was whether the jurisdiction exercised by the Appellate Officer – who is the City Civil Court judge – under Section 9 of the Act was as a Court or persona designata.
In order to answer the question, the Court adverted to sub-section (1) of Section 9 of the Act.
It noted that the provision prescribes appointment of a judicial officer not below the rank of a District judge as Appellate Officer and, therefore, the contention that the Appellate Officer acts as persona designata is incorrect.
“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…
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.”
In arriving at the above conclusion, the Court placed heavy reliance on in its own judgment in Thakur Das (Dead) by LRs v. State of M.P. & Anr. It also held that the decisions of the Delhi High Court in NP Berry v. Delhi Transport Corporation and Bombay High Court in Nusli Neville Wadia vs. New India Assurance Co. Ltd are untenable.
Regarding the NP Berry judgment of the Delhi High Court, the Court held that, “The Delhi High Court opined that the mere fact that the Appellate Officer is a District Judge is not conclusive to hold that he has to act as a Court. It went on to observe that if that had been the intention of the legislature, Section 9 would have empowered either the Court of a District Judge or at any rate, the District Judge as such to hear the appeals. This view expressed by the Delhi High Court, in our opinion, is untenable, keeping in mind the exposition in the case of Thakur Das (supra) and Mukri Gopalan (supra) in particular.”
Consequently, the Court held that the remedy against the order of Appellate Officer is under Article 227 and hence the Division Bench of the Bombay High Court could not have entertained the Letters Patent Appeal.