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Mahahir Pershad Vs. Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal Nos 918 of 1976
Judge
Reported in1977RLR212
ActsPublic premises (Eviction of Unauthorised occupants) Act, 1971 - Sections 9
AppellantMahahir Pershad
RespondentMunicipal Corporation
Advocates: S.K. Mehta and; Uma Mehta, Advs
Excerpt:
..............the scope of the validating provision because the appellate officer invalidated the order of the estate officer while giving effect to a judgment of this court striking down the old act and even though the order of the estate officer was invalidated through the instrumentality of the appellate officer it was nevertheless an indirect consequence of the judgment of a court. even otherwise, the non-obstante clause in section 20 does not limit the extent of validation. it merely dispeneses with the effect of a judgment, decree or order of the court but nevertheless also declares that anything done or any action taken under the old act 'shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of this act'. the section.....
Judgment:

H.L. Anand, J.

(1) Petitioner was employee of MCD. He was dismissed from service for certain charges, of misappropriation on 11.2.63. He was asked to vacate public premises on 17.2.68 under the P.P. (.Eviction of Unauthorised Occupants) Act, 1958. He appealed against it and as the act was declared ultra vires, his appeal was accepted by the Adj (Appellate Officer) without deciding appeal on merits. New Act was passed in 1971 and all actions under old Act were validated by S. 20. After this petitioner's eviction was sought. He opposed it on the ground that as order was set aside, he could not be evicted on the basis of that order and also that order was beyond the reach of S. 20. After giving above facts, judgment para 5 onwards is ;-

(2) It is true that the non-obstante clause in Section 20 is confined to judgment, decree or order 'of any Court' and the further expression 'authority' is not used so as to widen the scope of the validating provision. It is equally true that the appointment of the Additional District Judge as an appellate Officer for the purpose of Section 9 of the new Act does not make the appellate officer a 'court' within the meaning of Section 20. Even though the appellate officer would have the various trappings of a court he nevertheless acts as a persona designata Il R. 1949. Punj 606. The order of the appellate officer would, however, still be within the scope of the validating provision because the appellate officer invalidated the order of the Estate Officer while giving effect to a judgment of this Court striking down the old Act and even though the order of the Estate Officer was invalidated through the instrumentality of the appellate officer it was nevertheless an indirect consequence of the judgment of a court. Even otherwise, the non-obstante clause in Section 20 does not limit the extent of validation. It merely dispeneses with the effect of a judgment, decree or order of the court but nevertheless also declares that anything done or any action taken under the old Act 'shall be deemed to be as valid and effective as if such thing or action was done or taken under the corresponding provisions of this Act'. The Section would, thereforee, clearly validate the action of the Estate Officer and introduce a legal fiction as

(3) The contention of the petitioner, that if anything done or any action taken under the Old Act were validated and would be deemed to have been done or taken under the corresponding provision of the new Act it would also save the order of the appellate officer because, runs the argument, the order of the appellate officer dismissing the appeal was also something done or action taken under the old Act, is, however, unexceptionable. On behalf of the Corporation it was, however, urged that in view of the retrospectivity given to the new Act the order of the appellate officer could not be allowed to stand because it was based on the assumption that the order of the Estate Officer had been negatived by retrospectivity. It was thereforee, urged that in the peculiar circumstances of this case this Court should quash the order of the Appellate Officer and restore the appeal of the petitioner and that such a course would also be consistent with the interest of justice in that by such a course the need for fresh proceedings would be dispensed with an illegal order would be demolished and yet the petitioner would have the forum of an appeal available to the petitioner to urge the contentions against the order of the Estate Officer on the merits. This, to my mind, is a proper course to adopt and would eminently meet the ends of justice in the peculiar circumstances of this case in which there would be no justification to compel the Corporation to initiate fresh proceedings even though the previous proceedings have been going on for over 14 years.

(4) In the circumstances, the petition would succeed in part. The requisition for the eviction of the petitioner made pursuant to the order of the Estate Officer is quashed. The order of the Estate Officer would, however, subsist. The appeal filed by the petitioner against that order under the old Act would be deemed to have been filed under the new Act and would, thereforee, be dealt with by the appellate officer on merits in accordance with the provisions of the new Act. The petitioner would however, not be disturbed until the decision of the appeal, the hearing of which would be expedited.


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