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N.P. Berry Vs. Delhi Transport Corporation and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 22 of 1978
Judge
Reported in15(1979)DLT108; 1979RLR88
ActsPublic Premises (Eviction of Unanthorised Occupants) Act, 1971 - Sections 9; Constitution of India - Article 227
AppellantN.P. Berry
RespondentDelhi Transport Corporation and anr.
Advocates: V.M. Issar and; C.B. Lal, Advs
Cases ReferredSubhash Chander v. Rehmat
Excerpt:
.....statute. without a specific provisions in a statute, there is no right of appeal.;(2) the civil courts are invariably presided over by civil judges or district judges. but the two terms, 'court' and 'judge' are not synonymous. the reason is that a judge may under a particular statute be appointed or required to perform certain functions which do not include the function of presiding over of a civil court.; (3) under section 9, the appeals are to be heard by an appellate officer. the word 'officer' is opposed in its connotation to the word 'court'. the former indicates administrative or quasi-judicial duties, while the latter is confined to judicial duties. this context in which the district judge operates under section 9 seems to be the contrary context which would go to show..........a particular statute or in respect of a court a revision may lie under section 115 of the code of civil procedure. since the act of 1971 does not provide for a revision against the order passed under section 9, the only question for consideration is whether a revision against such an order would lie to the high court under section 115 of the code of civil procedure. this would happen only if the appellate officer acting under section 9 can be covered by the words 'any court subordinate to such high court' used in section 115 of the code. the meaning of the word 'court' for this purpose may be ascertained with reference to the code of civil procedure and the punjab courts act, 1918. the preamble to the code of civil procedure shows that the court consolidates and amends the laws relating.....
Judgment:

V.S. Deshpande, C.J.

(1) The main point of interest arising in this case is the distinction between a Judge acting as a persona designate and he acting as a court. This petition under Article 227 of the Constitution, as amended by the Constitution (Forty-second Amendment) Act, 1976, challenges the validity of an order passed by an Additional District Judge, Delhi, acting as the appellate officer under section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (the Act). Section 9 reads as follows : '' An appeal shall lie from every order of the estate officer made in respect of any public premises under section 5 or section 7 to an appellate officer who shall be district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in this behalf. (2) An appeal made under sub-section shall be preferred, (a) in the case of an appeal from an order under section 5, within fifteen days from the date of publication of the order under sub-section 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 the appellate officer may entertain the appeal after the expiry of the said period of fifteen days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) Where an appeal is preferred from an order of the estate officer, 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 costs of any appeal under this section shall be in the discretion of the appellate officer. (6) For the purpose of this section, a presidency-town shall be deemed to be a district and the chief judge or the principal judge of the city civil court therein shall be deemed to be the district Judge of that district.'

(2) A preliminary objection is raised as to the maintainability of this petition on two grounds ( 1 ) that the appellate officer is not a 'court' within the meaning of clauses and (5) of the amended Article 227; and (2) at any rate it is not a court against an order of which either an appeal or a revision lies to the High Court. Clauses and (5) of the amended Article 227 are as follows :

'Every High Court shall have superintendence over all courts subject to its appellate jurisdiction. (5) Nothing in this article shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision'.

(3) The word 'court' is not defined for the purpose of Article 227, but it may be taken to have been used in the same sense in Clauses ( 1 ) and (5). It is only such courts against whose orders either an appeal or a revision lies to the High Court which come within the compass of the amended Article 227.

(4) The appeal is always a creature of a particular statute. Without a specific provision in a statute, there is no right of appeal. The decision of the Appellate Officer under section 9 has not been made appealable by the Act of 1971. A revision to the High Court of an order of a court or of Tribunal may be provided for by a particular statute or in respect of a court a revision may lie under section 115 of the Code of Civil Procedure. Since the Act of 1971 does not provide for a revision against the order passed under section 9, the only question for Consideration is whether a revision against such an order would lie to the High Court under section 115 of the Code of Civil Procedure. This would happen only if the appellate officer acting under section 9 can be covered by the words 'any court subordinate to such High Court' used in section 115 of the Code. The meaning of the word 'court' for this purpose may be ascertained with reference to the Code of Civil Procedure and the Punjab Courts Act, 1918. The preamble to the Code of Civil Procedure shows that the court consolidates and amends the laws relating to the procedure of 'courts of civil judicature'. Section 9 of the Code says that the courts shall have jurisdiction to try all suits of a civil nature. The meaning of a 'court' in the Code of Civil Procedure, thereforee, is a civil court. Similarly, the Punjab Courts Act, 1918, Chapter Iii, deals with subordinate civil courts. Section 24 thereof deals with the court of a District Judge as being the District Court or the principal civil court of original jurisdiction in that District. Since the court of a District Judge is established under that Act, it means a civil court.

(5) Civil courts are invariably presided over by civil Judges or District Judges. But the two terms, 'court' and 'Judge' are not synonymous. The reason is that the Judge may under a particular statute be appointed or required to perform certain functions which do not include the function of presiding over of a civil court.

(6) When, thereforee, a statute requires a Judge to perform certain duties and the question is whether the Judge acts there under as a court, we have to examine the scheme of the said Act and the effect of its provision to find out whether the Judge is acting as a court or as a persona designata. The expression 'persona designate' is defined in the Concise Law Dictionary, Fourth Edition by Osborn on page 253 as follows:

'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.'

In Parthasaradhi Naidu v. Kotaswara Rao (1923) 47 Mad 369 , a Full Bench of the Madras High Court observed that 'persona designate' are persons selected to act in their private capacity and not in their capacity as Judges. This observation was approved by the Supreme Court in The Central Talkies Ltd., Kanpur v. Dwarka Prasad, : 1961CriLJ740 . But the expression 'private capacity' does not mean that a Judge who is not acting as a court but as a persona designata acts merely as a private person devoid of his capacity as a Judge. The reason is that while a court must be presided over by a Judge, a Judge may do duties other than presiding over the courts. When the Judge does not preside over a court and functions otherwise it may be said that he is doing so in his private capacity, bat nevertheless as a Judge though not as a court. As observed by the Full Bench of the Punjab High Court in M/s. Pitman's Shorthand Academy v. M/s. B. Lila Ram& .Sons Air 1950 P&H; 181, 'There is nothing unlawful, irregular or indeed unusual in the legislature appointing a person to perform functions of a quasi-judicial nature, and the mere fact that the business entrusted to such a person may involve the consideration and decision of juristic rights would not give the appointed person the status of a civil court..........It follows...........a judicial officer, e.g. a Senior Subordinate Judge, a District Magistrate or a District Judge may be entrusted with duties of a judicial or quasi-judicial nature and yet while performing these duties he does not act as a court. Whether this is so or not will depend on the circumstances of each particular case, namely, what was the intention of the Legisalture. to create a court for appoint a persona designata.'

(7) The same approach had been adopted by the Full Bench of the Madras High Court in Parthasaradhi Naidu's case referred to above. While the Punjab Urban Rent Restriction Act considered by the Full Bench of the Punjab High Court did not give any indication that the Rent Controller and the Appellate Authority functioning there under could be considered to be courts, the statutory rules which were considered by the Full Bench of the Madras High Court expressly referred to courts which were to be presided over by the Judges referred to in the rules. This is why the Punjab High Court came to the conclusion that under the Punjab Urban Rent Restriction Act the ControHer, and the Appellate Authority did not act as courts, while the Full Beach of the Madras High Court came to the conclusion that under the statutory rules considered by them the Judges acted as courts.

(8) In the Central Talkies case referred to above, the Supreme Court observed at page 501 of the report that '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.' to that case the Additional District Magistrate could expressly be empowered under section 10(2) of the Code of Criminal Procedure, 1898 to exercise the powers of a District Magistrate either under the said Code or under any other law. This was why the Additional District Magistrate was held to be able to perform the function of a District Magistrate under the U.P. (Temporary) Control of Rent and Eviction Act, 1947. This was why the District Magistrate under the U. P. Act was held not to be persona designata, and the Additional District Magistrate could perform his functions under the said Act because of section 2 of the Criminal Procedure Code. The Supreme Court decision was not concerned with the consideration of any distinction between the District Magistrate or the Additional District Magistrate as such and they being equated with courts and is not, thereforee, helpful for the decision of the question before us.

(9) In Kerala State Electricity Board, Trivandrum v. T. P. Kunhaliumma, : [1977]1SCR996 , the District Judge acting under sub-sections (3) and (4) of section 16 of the Telegraphs Act, 1885, was held to be a court because in sub section (4) the words 'the court of the District Judge' were expressly used and in sub-section (3) the words 'the District Judge within whose jurisdiction the property is situated' showed that it was the court of the District Judge and not the District Judge as a persona designata which was to function there under. The distinction between the District Judge acting as a court and the District Judge acting otherwise than as a court is clearly recognised by the Supreme Court in this decision. In paragraph 20 of the report Ray, C. J. speaking for the court carefully examined the various provisions of the Telegraphs Act to find out whether the District Judge acted as a court or otherwise.

(10) The question whether the Appellate Officer under section 9 is to be regarded as a civil court may be considered from the following angles : The scheme of the Act as also the Act of 1958 which preceded it was to provide a special procedure and special authority for evicting unauthorised occupants of public premises. A distinction was made between public premises and other premises- While the eviction from other premises had to be sought through regular course or Tribunals, a special statute with an expeditious procedure was enacted for securing speedier eviction from the public premises. Public interest was put on a higher pedestal and eviction from public premises was secured by a quicker procedure as contrasted with eviction from other premises. This has been regarded as reasonable classification which constitutionally unobjectionable. Since the evictions from ordinary premises take place either through civil courts or through the Controllers under the Delhi Rent Control Act, 1958, the very object and scheme of the Public Premises (Eviction of Unauthorised Occupants) Acts of 1971 and 1958 imply that the Estate Officer and the Appellate Officer functioning under the said Acts are not courts. (2) In Northern India Caterers Private Ltd., v. State of Punjab and another, : [1967]3SCR399 , it was held that the Government could choose either to file a suit for the eviction of an unauthorised occupant of public premises or choose to adopt a shorter remedy under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 and that was unconstitutional discrimination. The Seven-Judge Bench in Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater Bombay, and others (1974) 2 Scc 402, overruled the previous decision in Northern India Caterers Private Ltd., and held that the provision of a shorter procedure for eviction of unauthorised occupants on public premises was not unconstitutional discrimination even if for the same eviction a suit also could be filed in a civil court. Both these decisions have recognised that the eviction under the Act is not through the court but through the other officers functioning under the Act. Had these officers functioning under the Act been regarded as courts, the distinction between eviction through courts and eviction under the Act would not have been made and recognised by the Supreme Court. (3) The objection of unconstitutional discrimination was first met by the legislature by inserting section 19 in the Act of 1958 and by providing section 15 in the Act of 1971. These provisions bar the jurisdiction of civil courts to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises. This is a reaffirmation of the distinction between the Estate Officer and the Appellate Officer functioning under the Act, on the one hand, and civil courts on the other hand, implying that the Estate Officer and the Appellate Officer functioning under this Act are not courts. (4) The authority empowered to hear appeals under section 9 is called an 'Appellate Officer'. The legislative intention 166 seems to indicate that the authority is to be a persona designata and not a court. It is true that the Appellate Officer has to be either the District Judge or a judicial officer of ten years standing designated by the District Judge. Invariably, thereforee, the Appellate Officer will be a Judge. But the whole point of the distinction is whether the Judge is to act as a persona designata or as a court. The mere fact that it is a Judge who is to hear the appeals is not conclusive to show that he has to act as a court. Had it been the intention of the legislature that the District judge should act as a court, section 9 would have empowered either the court of. the District Judge or at any rate the District Judge as such to hear the appeals. But the legislature avoided this obvious course and has chosen to designate the authority as an Appellate Officer. It is thus the Appellate Officer who is the Appellate Authority and not the District Judge as such. It is only because the Appellate Authority has to be qualified in law, impartial and of a status such as to inspire public confidence that a District Judge or a judicial officer is chosen to man the post of an Appellate Officer. In this respect, the analogy of the Delhi Rent Control Act, 1958 is helpful. Under section 35 of the said Act, the Controllers may be appointed by the Central Government. A person shall not be qualified for such appointment unless he has for at least five years held a judicial office or for at least seven years been practicing as an advocate. Subordinate Judges have been appointed to these posts. But this does not make the Controllers 'courts'. This conclusion was arrived at in Subhash Chander v. Rehmat LJilah ILR (1973) Delhi 181, by a Division Bench of this court even after taking into account the following facts, which could have persuaded the Bench to regard them as courts, namely, (a) the practice and procedure of a court of small causes, meaning thereby the relevant provisions of the Code of Civil Procedure was to be followed by the Controller; (b) the Controller was to have the same powers as are vested in a civil court under the Code of Civil Procedure in trying a suit in respect of summoning of witnesses, discovery and production of documents, issuing commissions and any other matter which may be prescribed; (c) the Rent Control Tribunal to which first appeals from the Controllers lie is to have all the powers vested in a court under the Code of Civil Procedure when hearing an appeal; and (d) appeals from the orders of the Tribunal lie to the High Court on a substantial question of law. But even the joint weight of all these consideration was not sufficient to show that the Controllers and the Rent Control Tribunal could be regarded as courts. On the contrary, the very fact that powers of a civil court in certain respects had to be conferred on the Controllers would show that the Controllers are not civil courts. The Estate Officer under the Act of 1971 has also been given certain powers of civil court by section 8 of the Act. This is because without section 8 he would have no such powers at all. This emphasises the fact that the Estate Officer is not a court. The procedure for hearing an appeal is provided by section 9 only No reference is made anywhere in the Act to the application of Code of Civil Procedure. which is generally the normal mode adopted by the legislature to show that the authority is analogous to a civil court.

(11) In Kerala State Electricity Board, (supra) the Supreme Court took into account the following relevant circumstances showing the the District Judge acted as a court, namely (i) reference is made to the District Judge under the title of a District Judge, (ii) Payment of compensation is into the court of District Judge, and (iii) payment of court-fees and issue of process, both of which suggest that the procedure of a court of civil jurisdiction is being available. None of these circumstances is present in the Act of 1971 to make it possible to equate the Appellate Authority under section 9 to a court.

(12) Section 3(17) of the General Clauses Act, 1897 states that the 'District Judge' in any of the Act of the Central Legislature means the Judge of a principal civil court of original jurisdiction. In the Kerala State Electricity Hoard the Supreme Court observed that in the Telegraphs Act there is nothing in the context to suggest that the reference to the District Judge is not intended as a reference to the District Court which seems to be the meaning implied by the definition. In section 9, however, the appeals are to be heard by an Appellate officer. The word 'officer' is opposed in its connotation to the word 'court'. The former indicate administrative or quasi-judicial duties, while the latter is confined to judicial duties. This context in which the District Judge operates under section 9 seems to be the contrary context which would go to show that the District Judge was not acting as a court which would be the case ordinarily when the definition in the General Clauses Act is applied.

(13) In Mulla's Code of Civil Procedure, 13th Edition, Vol. I, page 500, title 11 'Subordinate Court', the question posed for consideration is this : 'when a judicial officer is given the right to determine certain matters of a judicial or quasi-judicial nature unconnected with the ordinary jurisdiction which he exercises under the law a question will arise whether he acts as a court or as a persona designata. The answer given is as follows: 'where the word used in the enactment giving the special jurisdiction is not 'court' but 'judge' the entire enactment is to be looked into to find out whether the matter is to be decided by him as a Court or in his personal capacity.' Various decisions are then discussed showing how in some statutes the Judge is to function as a court, while in others he has to function as a persona designata We have not found any good authority showing that when the word 'court' is not used at all the District Judge or a subordinate Judge functioning under a statute is held to be a court even when the statute itself shows that he is to function as an Appellate Officer or with some designation other than that of a court when Code of Civil Procedure has not been applied as the procedure to be followed by the Judge and when there is no indication that the Judge is to function as a court.

(14) A final and weighty consideration should conclude this discussion. A court itself is a creation of a statute or statutes. It is only the Code of Civil Procedure and the Punjab Courts Act which are relevant for the creation of a court in this case. Both of them talk of civil courts. Under section 24 of the Punjab Courts Act the District Judge is the principal court of original civil jurisdiction. Under section 38 thereof an appeal from a decree or order of a District Judge or Additional District Judge exercising original jurisdiction shall lie to the High Court. A second appeal also lies to the High Court from the appellate decision of a District Judge under section 41. Since none of these features is applicable to the Appellate Officer under section 9 of the Act of 1971, it is clear that the said Appellate Officer is not the court of a District Judge established by the Punjab Courts Act to which the Code of Civil Procedure applies.

(15) Section 115 of the Code of Civil Procedure applies only when a court created either by the Punjab Courts Act or some other statute makes an order, which is not subject to appeal. 'The manner of establishment and functioning of a court is indicated by the Punjab Courts Act. Since the Act of 1971 does not provide for the establishment or functioning of the Appellate Officer as a court, the Appellate Officer cannot be regarded as a court and must, thereforee, be regarded as a' persona designata.

(16) For the above reasons, we are of the view that the Appellate Officer who in the present case was the Additional District Judge was not a court against whose order either an appeal or a revision lies to the High Court within the meaning of clause (5) of Article 227 of the Constitution. For some purposes under clause of Article 227, such as administrative superintendence, the concept of 'court' could be conceivably larger than the concept of 'court' in clause (5) of Article 227. But for the purposes of determining whether a revision or appeal lies against the order of a court within the meaning of clause (5) of Article 227 the concept of 'Court' in clause (5) must he the same as the concept of 'Court' in clause ( 1 ). The judicial superintendence of the High Court could be only over those courts against whose orders an appeal or revision lies to the High Court, Since the Appellate Officer under section 9 is not such a court, no petition under Article 227 could lie against the order passed by the Appellate Officer.

(17) On merits we find that the order passed by the Appellate Officer is that the order of the Estates Officer under appeal, is stayed, but the recovery of damages is not stayed. This order has been passed with jurisdiction and is also eminently sensible because status quo is maintained in respect of possession, but no stay is granted in respect of the money part of the order of the Estate Officer. No objection can be taken to the order on merits.

(18) The petition under Article 227 is, thereforee, dismissed for two reasons, namely ( 1 ) that the impugned order is not made by any court whose decision is subject either to appeal or to revision to the High Court, and (2) that on merits the impugned order is unassailable. The petition is dismissed with no order as to costs.


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