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Wednesday, February 21, 2018

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? - 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.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 15536 OF 2017
(Arising out of SLP (Civil) No.11348 of 2013)
Life Insurance Corporation of India …..APPELLANT
:Versus:
Nandini J. Shah & Ors. …..RESPONDENTS
J U D G M E N T
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 :
2
―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
3
Letters 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
4
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 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
5
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
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
7
the original occupant and (b) 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.
8
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,
9
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.
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.
10
& 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 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
11
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 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
12
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
13
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 (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

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
14
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

10 1966 Supp. SCR 393
11 2017(5) SCC 533
12 2015 (9) SCC 1
15
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
16
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

13 2010 (2) Mh. L.J. 978
14 2012 (4) Bom. C.R.1
15 15 (1979) DLT 108
17
of Mysore Vs. P. Shankaranarayana Rao16; Ganga Ram
Dohrey Vs. State of U.P.17; and Sizerali Mohamedali Lodhia Vs.
Gujarat State Road Transport Corp.18.
17. Reliance has been placed also on the other decisions of the
High Courts dealing with the question as to when the appointment
of an appellate authority albeit a judicial officer has been treated as
persona designata under laws other than Public Premises Act,
namely, M/s. Pitman‟s Shorthand Academy Vs. M/s. B. Lila
Ram & Sons19; M. Abdul Wahid Sahib Vs. Dewanjee Abdul
Khader Sahib20; C.S. Balarama Iyer & Anr. Vs. Krishnan
Kunchandi21; Y. Mahabaleswarappa Vs. M. Gopalasami
Mudaliar22; Keshav Ramchandra Vs. Municipal Borough,
Jalgaon & Ors.23; Jagmohan Surajmal Marwadi Vs. Venkatesh
Gopal Ranade.
24; Municipality of Sholapur Vs. Tuljaram
Krishnasa Chavan;25 Thavasikani Nadar Vs. The Election

16 (1975) 2 Kar. LJ 280
17 AIR 2002 Allahabad 238
18 2001 (2) Guj. L.R. 1120
19 AIR (37) 1950 East Punjab 181
20 AIR 1947 Madras 400
21 AIR 1968 Kerala 240
22
 AIR 1935 Madras 673
23 AIR 1946 Bombay 64
24 AIR 1933 Bombay 105
25 AIR 1931 Bombay 582
18
Commissioner26; Bathula Krishna Brahman & Ors. Vs. Daram
Chenchi Reddy & Ors.27
18. Our attention has also been invited to other decisions taking
the view that the appellate authority cannot be treated as persona
designata but as a Court while dealing with the provisions of Public
Premises Act and other laws, namely, Jinda Ram Vs. UOI28; M.
Papa Naik Vs. Commissioner City Municipal Council29;
Surindra Mohan Vs. Dharam Chand Abrol30; Kiron Chandra
Bose Vs. Kalidas Chatterji31; P. Venkata Somaraji & Ors. Vs.
Principal Munsif & Ors.32 and S. Srinivas Rao Vs. High Court of
A.P.33
 Our attention is also invited to the decisions of this Court in
the case of Central Talkies (supra); Ram Chander Aggarwal
(supra); Collector, Varanasi Vs. Gauri Shanker Misra & Ors.34;
Thakur Das (supra); Hanskumar Kishanchand Vs. Union of

26 (1974) II Madras LJR 44
27 AIR 1959 AP 129
28 (1999) 2 MP LJ 221
29 (1996) 3 Kant LJ 86
30 AIR 1971 J&K 76
31 AIR 1943 Calcutta 247
32
 AIR 1968 AP 22
33
 AIR 1989 AP 258
34 AIR 1968 SC 384
19
India35 and Naresh Shridhar Mirajkar Vs. State of
Maharashtra36.
19. The respondents have also relied on the definition of the
expression persona designata given in Osborn‟s Concise Law
Dictionary, 2005 Edition and P. Ramanatha Aiyar‟s Advance Law
Lexicon, 5th Edition. According to the respondents, therefore, the
remedy against the decision of the appellate officer available to the
respondents was only by way of writ petition under Articles 226 and
227 of the Constitution and the respondents, in fact, invoked the
same by filing a writ petition which was initially decided by the
learned Single Judge whose decision could be challenged by way of
an intra-court letters patent appeal before the Division Bench of the
same High Court.
20. We have heard Mr. Ranjit Kumar, learned Solicitor General
appearing for the appellant and Ms. Sonal, learned counsel
appearing for the respondents.
21. Indubitably, in the context of provisions of the 1971 Act, the
question raised in the present appeal has not received the attention

35 AIR 1958 SC 947
36
 AIR 1967 SC 1
20
of this Court thus far. The decisions of this Court pressed into
service by both sides, which has had occasion to examine the
purport of expression persona designate, are in reference to the
provisions of other Central and State enactments. However, the
exposition in those cases will have bearing on the matter in issue
before us. In that, the principle underlying the exposition in those
cases can be applied for answering the question under
consideration in reference to the provisions of the 1971 Act and
Section 9 in particular. We, therefore, deem it apposite to advert to
the decisions of this Court before we proceed to analyse the
legislative scheme of the 1971 Act.
22. In the case of Thakur Das (supra) rendered by a three-Judge
Bench, this Court examined two contentions in reference to the
purport of Section 6C of the Essential Commodities Act, 1955. The
first question was whether the judicial authority constituted by the
State Government under the said provision, to hear appeals against
the order of confiscation that may be made by the licensing
authority under Section 6A of the said Act, is not an inferior
criminal court subordinate to the High Court and amenable to the
revisional jurisdiction of the High Court under Section 435 read
with Section 439 of the Code of Criminal Procedure? The said
21
contention required this Court to consider whether the judicial
authority appointed under Section 6C of the said Act would be
persona designata, despite the fortuitous circumstance that it
happens to be the Sessions Judge. In paragraphs 7 and 8 of the
reported decision, this Court noted thus:
“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 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 clearly indicated that
the Appellate Authority must be one such preexisting
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
22
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 pre-existing 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
23
order is violated, would incur three penalties: (1)
cancellation of licence; (2) forfeiture of security deposit;
and (3) 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 6C 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 and Ram Chandra
v. State of U.P.).‖
(emphasis supplied)
The Court also considered the cleavage of opinion amongst the High
Courts on the construction of the expression “judicial authority”
24
used in Section 6C of the Essential Commodities Act. In paragraphs
9 to 11, this Court answered the same in the following words:
“9. Our attention was drawn to a cleavage of opinion
amongst High Courts on the construction of the
expression ―judicial authority‖ used in Section 6-C. In
State of Mysore v. Pandurang P. Naik, the Mysore High
Court was of the opinion that though a District and
Sessions Judge was appointed as a judicial authority by
the State Government in exercise of the powers conferred
by Section 6-C of the Act in that capacity it would not be
an inferior criminal court within the meaning of Section
435. Same view was taken by the Gujarat High Court in
State of Gujarat v. C.M. Shah. The exact specification of
the Appellate Authority constituted by the notification
could not be gathered from the judgment but it appears
that the appeal was heard by the Additional Sessions
Judge which would indicate that even if a District and
Sessions Judge was appointed as ―judicial authority‖
that expression would comprehend the Additional
Sessions Judge also or the Sessions Judge could transfer
such appeal pending before him to Additional Sessions
Judge which was a pointer that he was not a persona
designata. After referring to certain sections of the Code
of Criminal Procedure it has been held that the Additional
Sessions Judge hearing an appeal under Section 6-C is
not an inferior criminal court within the meaning of
Section 435(1). Our attention was also drawn to State of
Madhya Pradesh v. Vasant Kumar. Only a short note on
this judgment appears in 1972 Jabalpur Law Journal 80
but it clearly transpires that the point under discussion
has not been dealt with by the Court.
10. As against this, this very question was examined by
a Full Bench of the Andhra Pradesh High Court in Public
Prosecutor (A.P.) v. L. Ramayya. Two questions were
referred to the Full Bench. The first was: whether the
District and Sessions Judge who is appointed judicial
authority for hearing appeals under Section 6C is a
persona designata or an inferior Criminal Court, and the
second was: whether even if it is an inferior Criminal
Court, a revision application against the order of the
appellate authority would lie to the High Court? The Full
25
Bench answered the first question in the affirmative.
While summing up its conclusions, the Court held that
when a judicial authority like an officer who presides
over a court is appointed to perform the functions, to
judge and decide in accordance with law and as nothing
has been mentioned about the finality or otherwise of the
decisions made by that authority, it is an indication that
the authority is to act as a court in which case it is not
necessary to mention whether they are final or not as all
the incidents of exercising jurisdiction as a court would
necessarily follow. We are in broad agreement with this
conclusion.
11. We are accordingly of the opinion that even though
the State Government is authorised to appoint an
Appellate Authority under Section 6C, the Legislature
clearly indicated that such appellate authority must of
necessity be a judicial authority. Since under the
Constitution the courts being the repository of the
judicial power and the officer presiding over the
court derives his designation from the
nomenclature of the Court, even if the appointment
is made by the designation of the judicial officer
the Appellate Authority indicated is the Court over
which he presides discharging functions under the
relevant Code and placed in the hierarchy of courts
for the purposes of appeal and revision. Viewed from
this angle, the Sessions Judge, though appointed and
appellate authority by the notification, what the State
Government did was to constitute an appellate authority
in the Sessions Court over which the Sessions Judge
presides. The Sessions Court is constituted under the
Code of Criminal Procedure and indisputably it is an
inferior criminal court in relation to High Court. Therefore,
against the order made in exercise of powers conferred
by Section 6-C a revision application would lie to the High
Court and the High Court would be entitled to entertain a
revision application under Sections 435 and 439 of the
Code of Criminal Procedure, 1898 which was in force at
the relevant time and such revision application would be
competent.‖
(emphasis supplied)
26
23. In paragraph 8 of the same judgment, this Court
unambiguously concluded that as the nomenclature „Sessions
Judge‟ means the Judge presiding over the Sessions Court and that
being 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. These observations are
founded on the decision in the cases of Central Talkies Ltd.
(supra) and Ram Chander Aggarwal (supra).
24. Another instructive exposition is in Mukri Gopalan (supra)
(two Judges). In this case, the Court was called upon to consider
the sweep of Section 18 of the Kerala Buildings (Lease and Rent
Control) Act, 1965. The same envisages that the power of the
appellate authority can be conferred by the Government on such
officers and such authorities not below the rank of Subordinate
Judge. In paragraph 7, this Court restated the well settled position
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 relevant extract of
paragraph 7 of the reported decision reads thus:
27
“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
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. 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
28
a persona designata the learned Judge made the
following pertinent observations:
‗… 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‟. In the words of
Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara
Rao, 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.
It is true that in this connection, the majority
decision of the High Court in Jokkim Fernandez v.
Amina Kunhi Umma also took a contrary view. But
the said view also does not stand scrutiny in the
light of the statutory scheme regarding
constitution of appellate authority under the Act
and the powers conferred on and the decisions
rendered by it.‖
(emphasis supplied)

It may be useful to advert to the exposition in paragraphs 8 and 13
of this decision, which reads thus:
―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
29
the provisions of the Rent Act have been extended are
constituted as appellate authorities under Section 18 by
the Govt. 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. 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, 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 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. The
State of Punjab. Following observations found at page
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
30
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. In fact, Mr. Nariman learned Counsel for
respondent also fairly stated that these appellate
authorities would be courts and would not be
persona designata. But in his submission as they
are not civil courts constituted and functioning
under the Civil Procedure Code as such, they are
outside the sweep of Section 29(2) of the Limitation
Act. It is therefore, necessary for us to turn to the
aforesaid provision of the Limitation Act. It reads
as under :
‗29(2). Where any special or local law prescribes for
any suit, appeal or application a period of
limitation different from the period prescribed by
the Schedule, the provisions of Section 3 shall
apply as if such period were the period prescribed
by the Schedule and for the purpose of determining
any period of limitation prescribed for any suit,
appeal or application by any special or local law,
the provisions contained in Sections 4 to 24
(inclusive) shall apply only insofar as, and to the
extent to which, they are not expressly excluded by
such special or local law.‘
A mere look at the aforesaid provision shows for its
applicability to the facts of a given case and for
importing the machinery of the provisions
containing Sections 4 to 24 of the Limitation Act
the following two requirements have to be satisfied
by the authority invoking the said provision.
31
(i) There must be a provision for period of limitation
under any special or local law in connection with
any suit, appeal or application.
(ii) The said prescription of period of limitation
under such special or local law should be different
from the period prescribed by the schedule to the
Limitation Act.‖
(emphasis supplied)
―13. As per this sub-section, the provisions
contained in certain sections of the Limitation Act
were applied automatically to determine the
periods under the special laws, and the provisions
contained in other sections were stated to apply
only if they were not expressly excluded by the
special law. The provision (Section 5) relating to the
power of the court to condone delay in preferring
appeals and making applications came under the
latter category. So if the power to condone delay
contained in Section 5 had to be exercised by the
appellate body it had to be conferred by the special
law. That is why we find in a number of special
laws a provision to the effect that the provision
contained in Section 5 of the Limitation Act shall
apply to the proceeding under the special law. The
jurisdiction to entertain proceedings under the
special laws is sometimes given to the ordinary
courts, and sometimes given to separate tribunals
constituted under the special law. When the special
law provides that the provision contained in
Section 5 shall apply to the proceedings under it, it
is really a conferment of the power of the court
under Section 5 to the Tribunals under the special
law - whether these tribunals are courts or not. If
these tribunals under the special law should be
courts in the ordinary sense an express extension
of the provision contained in Section 5 of the
Limitation Act will become otiose in cases where
the special law has created separate tribunals to
adjudicate the rights of parties arising under the
special law. That is not the intension of the
legislature.‖
(emphasis supplied)
32
25. Again in the case of Asnew Drums Pvt. Ltd. (supra), decided
by a three-Judge Bench, this Court considered the question
whether an appeal under Section 32(9) of the State Financial
Corporation Act, 1951, was maintainable before the High Court.
Section 31(1) of the said Act required the Board to apply to the
District Judge within the limits of an industrial concern which was
carrying out the whole or a substantial part of its business or for
one or more of the reliefs specified. Such application could be made
inter alia for an order for the sale of the property pledged,
mortgaged or as security for the loan or advance or for an adinterim
for transfer or removing its machinery or plant or
equipment from the premises of the industrial concern with the
permission of the Board, where such removal is apprehended. The
question considered by this Court was whether by using the words
“in the manner provided in the CPC” in Section 32(8) of the
concerned Act, the legislature intended to include the provisions in
the Code dealing with appeals. The Court after analyzing the
provisions of the Act answered the same in the following words:
―10. The question which really arises is whether by using
the words "in the manner provided in the CPC" in Section
32(8) the Legislature intended to include the provisions in
the Code dealing with appeals. There is no doubt that
under the CPC an order setting aside or refusing to set
aside a sale in execution of a decree is appealable under
33
Order XLIII Rule 1 (j). It is difficult to understand why
the scope of the language should be cut down by
not including appeals provided under the CPC
within the ambit of the words "in the manner
provided in the CPC". "Manner" means method of
procedure and to provide for an appeal is to
provide for a mode of procedure. The State
Financial Corporation lends huge amounts and we
cannot for a moment imagine that it was the
intention of the Legislature to make the order of
sale of property, passed by the District Judge, final
and only subject to an appeal to the Supreme Court
under Article 136, of the Constitution.
11. The learned Counsel for the respondents contended
that, wherever the Legislature wanted to provide for an
appeal to the High Court, it did so specifically. In this
connection he pointed out that Sub-section (9) of Section
32 provided that "any party aggrieved by an order under
Sub-section (5) or Sub-section (7) may, within thirty days
from the date of the order, appeal to the High Court and
upon such appeal the High Court may, after hearing the
parties, pass such orders thereon as it thinks proper." It
is true that an appeal has been expressly provided in this
case but the reason for this is that if there had been no
specific provision in Sub-section (9), no appeal would lie
otherwise because it is not provided in Sub-section (5) or
Sub-section (7) that the District Judge should proceed in
the manner provided in the CPC.
12. We are not impressed by the argument that the
Act confers jurisdiction on the District Judge as
persona designata because Sub-section (11) of
Section 32 provides that "the functions of a district
judge under this section shall be exercisable (a) in a
presidency town, where there is a city civil court
having jurisdiction, by a judge of that court and in
the absence of such court, by the High Court; and
(b) elsewhere, also by an additional district Judge."
These provisions clearly show that the District
Judge is not a persona designata.
13. It was contended that the whole idea of the Act was
to have expeditious execution as otherwise large funds of
the State Financial Corporation would be locked up
during execution proceedings. If this was the intention of
34
the Legislature, it would have expressly provided that no
appeal would lie against an order made under Subsection
(8) of Section 32.‖
(emphasis supplied)
The Court opined that the legislative intent was amply clear that the
District Judge was not a persona designata.
26. Once again, in the case of Maharashtra State Financial
Corporation (supra), decided by a three-Judge Bench of this Court,
while considering the provisions of State Financial Corporation,
1951, following the decision of this Court in Central Talkies Ltd.
(supra), restated that the District Judge exercising jurisdiction
under Sections 31 & 32 of the Act was not a persona designata but
was a court of ordinary civil jurisdiction. This can be discerned from
the dictum in paragraph 26 of the judgment which reads thus:
―26. We may now state our reasons for holding that even
if Section 46B of the Act was not there the provisions of
the Code for the execution of a decree against a surety
who had given only personal guarantee would, in the
absence of any provision to the contrary in the Act, be
applicable. In view of the decision of this Court in
The Central Talkies Ltd., Kanpur v. Dwarka
Prasad, where it was held that a persona designata
is a person selected as an individual in his private
capacity, and not in his capacity as filling a
particular character or office, since the term used
in Section 31(1) of the Act is "District Judge" it
cannot be doubted that the District Judge is not a
persona designata but a court of ordinary civil
jurisdiction while exercising jurisdiction under
35
Sections 31 and 32 of the Act. In National Sewing
Thread Co. Ltd. v. James Chadwick & Bros. Ltd. while
repelling the objection that an appeal under the Letters
Patent against the judgment of a Single Judge passed in
an appeal against the decision of the Registrar under
Section 76(1) of the Trade Marks Act, 1940 was not
maintainable it was held at pages 1033-34 of the Report:
(SCR pp.1033-34)
„Obviously after the appeal had reached the
High Court it has to be determined according to the
rules of practice and procedure of that Court and
in accordance with the provisions of the charter
under which that Court is constituted and which
confers on it power in respect to the method and
manner of exercising that jurisdiction. The rule is
well settled that when a statute directs that an
appeal shall lie to a Court already established,
then that appeal must be regulated by the practice
and procedure of that Court. This rule was very
succinctly stated by Viscount Haldane L.C. in National
Telephone Co., Ltd. v. Postmaster-General, in these
terms:-
„When a question is stated to be referred to an
established Court without more, it, in my opinion,
imports that the ordinary incidents of the
procedure of that Court are to attach, and also that
any general right of appeal from its decision
likewise attaches.‟
The same view was expressed by their Lordships of the
Privy Council in Adaikappa Chettiar v. R.
Chandrasekhara Thevar, wherein it was said:
‗Where a legal right is in dispute and the ordinary Courts
of the country are seized of such dispute the Courts are
governed by the ordinary rules of procedure applicable
thereto and an appeal lies if authorised by such rules,
notwithstanding that the legal right claimed arises under
a special statute which does not, in terms confer a right
of appeal.‘
Again in Secretary of State for India v. Chellikani Rama
Rao, when dealing with the case under the Madras
Forest Act their Lordships observed as follows:
36
‗It was contended on behalf of the appellant that all
further proceedings in Courts in India or by way of
appeal were incompetent, these being excluded by the
terms of the statute just quoted. In their Lordships'
opinion this objection is not well-founded. Their view is
that when proceedings of this character reach the
District Court, that Court is appealed to as one of
the ordinary Courts of the country, with regard to
whose procedure, orders, and decrees the ordinary
rules of the Civil Procedure Code apply.‟
Though the facts of the cases laying down the above rule
were not exactly similar to the facts of the present case,
the principle enunciated therein is one of general
application and has an apposite application to the facts
and circumstances of the present case. Section 76 of the
Trade Marks Act confers a right of appeal to the High
Court and says nothing more about it. That being so, the
High Court being seized as such of the appellate
jurisdiction conferred by Section 76 it has to exercise that
jurisdiction in the same manner as it exercises its other
appellate jurisdiction and when such jurisdiction is
exercised by a single Judge, his judgment becomes
subject to appeal under Clause 15 of the Letters Patent
there being nothing to the contrary in the Trade Marks
Act."
(emphasis supplied)
27. The question regarding the purport of expression persona
designata also arose for consideration in other cases decided by this
Court to which our attention has been invited. In the case of
Ramchandra Aggarwal (supra), this Court was called upon to
consider whether the District Judge has jurisdiction under Section
24 of the Code of Civil Procedure to transfer a reference made by a
Magistrate to a particular Civil Court under Section 146 of the Code
of Criminal Procedure to another Civil Court, in relation to
37
proceedings under Section 145 of the Code of Criminal Procedure
initiated before the Magistrate on the basis of a report of the police.
The Court relied on its earlier decision in the case of Balakrishna
Udayar Vs. Vasudeva Aiyar,
37 and observed in paragraph 3 of the
reported decision as follows:
―3. In Balakrishan Udayar v. Vasudeva Aiyar 44 I.A.
261, Lord Atkinson has pointed out the difference
between a persona designata and a legal tribunal. The
difference is this that the ‗determination of a persona
designata are not to be treated as judgments of a legal
tribunal‘. In the Central Talkies Ltd. v. Dwarka Prasad,
this Court has accepted the meaning given to the
expression persona designata in Osborn's Concise Law
Dictionary, 4h edn. p. 263 as ‗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.‘ Section 146(1) Cr.P.C. empowers a
Magistrate to refer the question as to whether any, and if
so, which of the parties was in possession of the subjectmatter
of dispute at the relevant point of time to a civil
court of competent jurisdiction. The power is not to
refer the matter to the presiding Judge of a
particular civil court but to a court. When a special
or local law provides for an adjudication to be
made by a constituted court - that is, by a court not
created by a special or local law but to an existing
court - it in fact enlarges the ordinary jurisdiction
of such a court. Thus where a special or local
statute refers to a constituted court as a court and
does not refer to the presiding officer of that court
the reference cannot be said to be a persona
designata. This question is well settled. It is, therefore,
unnecessary to say anything more on this part of the
case except that cases dealing with the point have been
well summarised in the recent decision in Chatur Mohan
v. Ram Behari Dixit.‖ (emphasis supplied)

37
 44 IA 261
38
28. Before we dilate on the matter in issue any further, it is
apposite to take note of the relevant provisions of the 1971 Act, as
were in force prior to 22nd June, 2015, applicable to the present
case. The same read thus:
―2. Definitions.- In this Act, unless the context otherwise
requires,-
1[***]
(b) ‗estate officer‘ means an officer appointed as such by
the Central Government under section 3;
xxx xxx xxx xxx xxx
(fa) ‗statutory authority‘, in relation to the public premises
referred to in clause (e) of this section, means,-
(i) in respect of the public premises placed under the
control of the Secretariat of either House of Parliament,
the Secretariat of the concerned House of Parliament,
(ii) in respect of the public premises referred to in item (i)
of sub-clause (2) and in item (iv) of sub-clause (3) of
that clause, the company or the subsidiary company,
as the case may be, referred to therein,
(iii) in respect of the public premises referred to in item
(ii) of sub-clause (2) of that clause, the corporation
referred to therein,
(iv) in respect of the public premises referred to,
respectively, in items (iii), (iv), (vi) and (vii) of subclause
(2) of that clause, the University, Institute or
Board, as the case may be referred to therein, and
(v) in respect of the public premises referred to in subclause
(3) of that clause, the Council, Corporation or
Corporations, Committee or Authority, as the case may
be, ref erred to in that sub-clause;‖
―3. Appointment of estate officers.- The Central
Government may, by notification in the Official Gazette,-
39
(a) Appoint such persons, being gazetted officers of
Government or of the Government of any Union
Territory or officers of equivalent rank of the statutory
authority, as it thinks fit, to be estate officers for the
purposes of this Act:
Provided that no officer or the Secretariat of the
Rajya Sabha shall be so appointed except after
consultation with the Chairman of the Rajya Sabha
and no officer of the Secretariat of the Lok Sabha
shall be so appointed except after consultation with
Speaker of the Lok Sabha:
Provided further that an officer of a statutory
authority shall only be appointed as an estate
officer in respect of the public premises controlled
by that authority; and
(b) define the local limits within which, or the categories
of public premises in respect of which, the estate
officers shall exercise the powers conferred, and
perform the duties imposed, on estate officers by or
under this Act.‖
―8. Power of estate officers.- An estate officer shall, for
the purpose of holding any inquiry under this Act, have
the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908), when trying a
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 estate officer made in respect of any public premises
under section 5 or section 5B or section 5C 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 in that district
of not less than ten years standing as the district
judge may designate in this behalf.
(2) An appeal under sub-section (1) shall be preferred,—
40
(a) in the case of an appeal from an order under section
5. [within twelve days] from the date of publication of the
order under sub-section (1) of that section;
(b) in the case of an appeal from an order [under section
5B or section 7, within twelve days] from the date on
which the order is communicated to the appellant; [and]
(c) in the case of an appeal from an order under section
5C, within twelve days from the date of such order:
Provided that the appellate officer may entertain
the appeal after the expiry of the said period, 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:
 Provided that where the construction or erection of any
building or other structure or fixture or execution of any
other work was not completed on the day on which an
order was made under section 5B for the demolition or
removal of such building or other structure or fixture, the
appellate officer shall not make any order for the stay of
enforcement of such order, unless such security, as may
be sufficient in the opinion of the appellate officer, has
been given by the appellant for not proceeding with such
construction, erection or work pending the disposal of the
appeal;
(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 purposes of this section, a presidencytown
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
the district.‖
(emphasis supplied)
41
―10. Finality of orders.- Save as otherwise expressly
provided in this Act, every order made by an estate
officer 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(a)
the eviction of any person who is in unauthorised
occupation of any public premises, or
(b) the removal of any building, structure or fixture or
goods, cattle or other animal from any public premises
under section 5A, or
(c) the demolition of any building or other structure made,
or ordered to be made, under section 5B, or
(cc) the sealing of any erection or work or of any
public premises under section 5C, or
(d) the arrears of rent payable under sub-section (1) of
section 7 or damages payable under sub-section (2), or
interest payable under sub-section (2A), of that
section, or
(e) the recovery of –
(i) costs of removal of any building, structure or
fixture or goods, cattle or other animal under
section 5A, or
(ii) expenses of demolition under section 5B, or
(iii) costs awarded to the Central Government or
statutory authority under sub-section (5) of
section 9, or
(iv) any portion of such rent, damages, costs of
removal, expenses of demolition or costs
awarded to the Central Government or the
statutory authority.‖
We may now advert to the provisions in the Public Premises
(Eviction of Unauthorised Occupants) Rules, 1971.
42
―9. Procedure in appeals.- (1) An appeal preferred
under section 9 of the Act shall be in writing, shall set
forth concisely the grounds of objection to the order
appealed against, and shall be accompanied by a copy of
such order.
(2) On receipt of the appeal and after calling for and
perusing the record of the proceedings before the estate
officer, the appellate officer shall appoint a time and
place for the hearing of the appeal and shall give notice
thereof to the estate officer against whose order the
appeal is preferred, to the appellant and to the head of
the department or authority in administrative control of
the premises.‖
29. The avowed purpose for enacting the 1971 Act was to provide
for a speedy remedy for taking possession of the public premises
which were in unauthorized occupation. For achieving the said goal,
an Estate Officer is appointed under Section 3 of the Act who has
been given powers to issue notice of show cause and initiate
proceedings for eviction and recovery of outstanding rental dues
and damages in respect of public premises. Section 8 empowers the
Estate Officer to exercise the same powers as are vested in a civil
court under the Code of Civil Procedure, 1908. We are not called
upon to consider the question as to whether the Estate Officer,
while exercising powers invested in him, acts as a court or has the
trappings of a court. The only question that we have attempted to
answer is whether the appointment of the appellate officer referred
43
to in Section 9 of the Act before whom an appeal shall lie, is in the
capacity of persona designata or as a court.
30. Sub-section (1) of Section 9 is the core provision to be kept in
mind for answering the point in issue. It postulates that 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
44
persona designata. In the first place, 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.
Secondly, the District Judge or designated judicial officer exercises
judicial authority within his jurisdiction. Thirdly, 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. Fourthly, 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. The District Court
exercises original and appellate jurisdiction by virtue of Sections 7
and 8 respectively, of the 1869 Act and is the principal Court of
original civil jurisdiction in the district within the meaning of
C.P.C., as per Section 7 of that Act. As per Section 8 of the Act of
1869, the District Court is the Court of appeal from all decrees and
orders passed by the subordinate Courts from which an appeal lies
under any law for the time being in force. As per Section 16 of that
Act, the District Judge can refer to any Additional District Judges
subordinate to him, any original suits and proceedings of a civil
nature, applications or references under Special Acts and
45
miscellaneous applications. The Additional District Judges have
jurisdiction to try such suits and to dispose of such applications or
references. Section 17 of that Act envisages that an Additional
District Judge shall have jurisdiction to try the appeals as may be
referred to him by the District Judge. Section 19 of that Act, is a
provision to invest power on the Additional District Judges, with
powers of District Judge. The hierarchy of judicial officers of the
District Court can be culled out from the 1869 Act. 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. Section 7 of this Act
envisages that when the City Civil Court consists of more than one
Judge, each of the Judges may exercise all or any of the powers
conferred on the Court by the said Act or any other law for the time
being in force. Clause (b) of Section 7 stipulates that the State
Government may appoint any one of the Judges to be the Principal
Judge and any two other Judges to be called the Additional
Principal Judges. The Principal Judge has been given authority to
46
make such arrangements as he may think fit for the distribution of
the business of the Court among the various Judges thereof. In
other words, 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. The legislative
intent behind providing an appeal under Section 9 before the
Appellate Officer to be the District Judge of the concerned District
47
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.
31. Indeed, the expression used in Section 9 is “Appellate Officer”
and not “Appellate Authority” as has been used in Section 6C of the
Essential Commodities Act, 1955, considered by the Supreme Court
in the case of Thakur Das (supra). That, 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 the
appeal. Though described as an Appellate Officer, the District
48
Judge, for deciding an appeal under Section 9, can and is expected
to exercise the powers of the civil court.
32. In the case of Nusli Neville Wadia (supra) the Division Bench
was essentially called upon to answer the contention raised before it
that, considering Chapter XVII Rule 18 of the Bombay Appellate
Side Rules, 1960, the petition in terms of Rule 18 must be heard by
a learned Single Judge of that Court or by the Division Bench and
whether the Division Bench has no jurisdiction to hear and decide
the appeal against the decision of the City Civil Court/District
Court in proceedings arising from the 1971 Act. The analysis by the
Division Bench therefore, was with reference to the said plea.
Indeed, the Division Bench also adverted to the aspect as to
whether the Principal Judge, City Civil Court was acting as a Court
or persona designata. It merely followed the decisions in the case of
N.P. Berry (supra) and Shri Mahesh N. Kothari and Others Vs.
Life Insurance Corporation of India and another in Writ
Petition No.6846 of 2005, decided on 05.10.2006, wherein it has
been held that the legislature did not confer power on the District
Judge or a Principal Judge of the City Civil Court to hear the
appeals as such but has chosen to designate the authority as an
Appellate Officer making it clear, that the power was conferred in
49
his capacity as persona designata. The Division Bench has also
adverted to the decisions in Gangadhar Bapurao Gadre Vs. Hubli
Municipality38 dealing with Section 22 of the Bombay District
Municipality Act; Municipality of Sholapur Vs. Tuljaram
Krishnasa Chavan39 dealing with provisions of Bombay City
Municipalities Act; Keshav Ramchandra (supra), dealing with
Section 15 of the provisions of Bombay Municipal Act and
Jagmohan Surajmal Marwadi (supra), and held that the District
Judge exercised his power as a persona designata.
33. We will therefore traverse through the decisions adverted to in
Nusli Neville Wadia‟s case (supra). Before we examine those
decisions, it is apposite to take note of the Full Bench judgment of
the Bombay High Court in the case of Prakash Securities Pvt.
Ltd. (supra). The question referred to the Full Bench, reads thus:
―Whether a writ petition arising out of order passed
under the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971 should be placed before a learned
Single Judge of this Court in Accordance with Rule 18 (3)
of the Chapter XVII of the Bombay High Court Appellate
Side Rules, 1960 or should be placed before a Division
Bench?‖

38 1925 B.L.R. 519
39 AIR 1931 Bombay 582
50
The Full Bench analysed the scheme of the Bombay High Court
Appellate Side Rules, 1960 and opined that the order passed by the
quasi judicial authority under the Act of 1971 is also covered by
Rule 18 (3) and writ petition under Article 226 or 227 of the
Constitution of India against such a decision must be heard and
decided by the learned Single Judge of the High Court. In
paragraph 8, finally, the Full Bench observed thus:
―8. Since the Public Premises Act, 1971 is not an
enactment made by Parliament in exercise of powers
under Article 323-B, the question of applying the above
direction of the Supreme Court in L. Chandra Kumar case
cannot arise. We are, therefore, unable to agree with the
view taken by the Division Bench in Nusli Neville Wadia
case (supra). It is clear that under the provisions of Rule
18(3) of Bombay High Court Appellate Side Rules, 1960,
a petition under Articles 226 and/or 227 of the
Constitution challenging the order of the Appellate
Authority under the Public Premises Act, 1971 will be
required to be heard and decided by a learned Single
Judge of this Court. The decision in Nusli Neville Wadia
case is, therefore, overruled in so far as the Division
Bench in Nusli Neville Wadia case has taken a view that
when the order is passed by a Tribunal under a
legislation relating to any subject referable to Article 323-
B(2) of the Constitution, the petitions challenging such
orders will have to be necessarily heard by the Division
Bench. It is clarified that the directions given by the
Supreme Court in L. Chandra Kumar case will apply only
when the Tribunal is established under a law which is
specifically made by the appropriate legislature in
exercise of powers conferred by Articles 323-A or 323-B.
Merely because a legislation, existing in future, deals
with a subject referable to any sub-clause in Clause (2) of
Article 323-B of the Constitution, such legislation does not
by itself become a legislation under Article 323-B of the
Constitution.‖
51
34. Indubitably, the Full Bench was “not” called upon to examine
the issue as to whether the remedy of an appeal under Section 9 of
the Act, 1971 before the Appellate Officer, is before an authority
exercising powers in his capacity as a persona designata or as a
Civil Court.
35. We may now turn to the decision of the Delhi High Court in
N.P. Berry (supra), on which reliance has been placed by the
Bombay High Court in Nusli Neville Wadia‟s case (supra). The
main point considered by the Delhi High Court was about the
distinction between a “Judge” acting as a persona designata and
that as a “Court”, in the context of an order passed by an additional
district judge of Delhi acting as an Appellate Officer under Section 9
of 1971 Act.
36. We may reiterate that, in the present case, we are not
concerned with the question as to whether the Estate Officer
functions as a Court whilst exercising powers under the 1971 Act,
an issue which was also considered by the Delhi High Court. It also
dealt with the question as to whether the Appellate Officer defined
in Section 9 of the 1971 Act, acts as a persona designata and not as
52
a Court. 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.
37. Indeed, the Delhi High Court could not have noticed the
aforementioned decisions of this Court, wherein it has been
observed that 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. We are
conscious of the fact that the decision in Thakur Das (supra) was
in relation to the purport of Section 6C of the Essential
Commodities Act and the decision in Mukri Gopalan (supra) was in
respect of Section 18 of the Kerala Buildings (Lease and Rent
Control) Act, 1955. As noted earlier, Section 6C of the Essential
Commodities Act refers to the “judicial authority” appointed by the
State Government concerned and Section 18 of the Kerala Buildings
53
(Lease and Rent Control) Act refers to such officers and authorities
not below the rank of Subordinate Judge to exercise the powers of
the appellate authority. However, the principle underlying these
enunciations will apply on all fours to the dispensation stipulated in
the 1971 Act. For, it predicates that the Appellate Officer shall be
the District Judge of the district in which the premises are situated
or such other judicial officer designated by the District Judge.
38. The Bombay High Court in Nusli Neville Wadia‟s case largely
relied upon the decision of the Delhi High Court in N.P. Berry‟s
case. We are bound by the dictum in the case of Thakur Das
(supra) decided by a three-Judge Bench of this Court wherein it is
observed that the expression “judicial” qualifying the “authority”
clearly indicates that that authority alone can be appointed to
intervene and hear the appeals on which was conferred the judicial
powers of the State. By a reference to judicial authority, it is
indicative of the fact that the appellate authority must be one such
pre-existing authority which was exercising judicial powers of the
State and if any authority as persona designata was to be
constituted, there was no purpose in qualifying the word “authority”
by the specific adjective “judicial”. The thrust of the exposition is
that the “judicial authority” which is a pre-existing authority
54
exercising judicial power of the State, is a strong indication of
legislative intent to depart from the dispensation of persona
designata when a person 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. That view has been
reiterated even in Mukri Gopalan (supra).

39. Notably, 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. In the case of Thakur
Das (supra), in paragraph 9, while analyzing the cleavage of opinion
of the High Courts, it is noticed that the expression “judicial
authority” would comprehend the Additional Sessions Judge or the
Sessions Judge could transfer such appeal pending before him to
Additional Sessions Judge which was a pointer to the fact that he
was not a persona designata. 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 will be useful to advert to
55
Section 7 of the City Civil Courts Act and Sections 3, 5 & 7 of the
Maharashtra Civil Courts Act. 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. In our opinion, 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 pre-existing judicial authority in the district concerned.
40. The Delhi High Court also considered the question as to
whether the power exercised by the appellate officer is in his
capacity of a Court or otherwise. Relying on Mulla‟s Code of Civil
Procedure, 13th Edition Volume I, Page 500, it has been observed
that where the word used in the enactment giving the special
56
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. It went on to observe that no
authority is forthcoming to show 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, and further when CPC has
not been applied as a procedure to be followed by the judge and
when there is no indication that the judge is to function as a Court.
It then observed that the Court is a creation of a statute either
under CPC or Punjab Courts Act. In the final analysis, the Delhi
High Court concluded that the appellate officer cannot be regarded
as a Court and must, therefore, be regarded as a persona designata.
41. 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. For the reasons
already alluded to we have no hesitation in holding that the remedy
of appeal under Section 9 before the Appellate Officer is not as a
57
persona designata but to a pre-existing judicial authority. 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. [See para 26 of Maharashtra State Financial
Corporation (supra), reproduced in earlier part of this judgment in
para 26]. Such a pre-existing judicial authority, by implication,
would be bound to follow the procedure underlying the said
enactments and also observe the doctrine of fairness in affording
opportunity. Since the edifice on which the conclusions reached by
the Delhi High Court, that an appellate officer is persona designata
and not a Court, cannot be countenanced in law, the Bombay High
Court decisions in Nusli Neville Wadia‟s case (supra) and also
Prakash Securities Pvt. Ltd. (supra), cannot hold the field to that
extent for the same logic.
42. Our attention was invited to yet another decision in the case of
State of Mysore Vs. P. Shankaranarayana Rao (supra). The
learned Single Judge of the Karnataka High Court examined the
question under consideration as to whether the District Judge who
is constituted as an appellate officer under Section 10 of the
58
Karnataka Public Premises (Eviction of Unauthorised Occupants)
Act, 1961, acts as a Court or as a persona designata? The decision
in Virindar Kumar Satyawadi Vs. State of Punjab40 was referred
to, wherein it was observed that what distinguishes a Court from a
quasi-judicial authority is that it is charged with a duty to decide
disputes in a judicial manner and declare 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 support of it. Further, 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. The distinction between the Court and quasijudicial
tribunal has to be decided having regard to the provisions of
the Act and if it possesses all the attributes of a Court. Referring to
Section 10 of the Karnataka Act, which provides that an appeal
shall lie from every order of the competent officer made in respect of
any public premises, to an appellate officer who shall be “only” the
District Judge having jurisdiction over the area, the Court
eventually concluded that the intention of enacting the term
“appellate officer” in Section 10 is indicative of the fact that the

40
 AIR 1956 SC 153
59
District Judge must act as appellate officer with limited jurisdiction
to dispose of the appeal in the manner set out by the provisions of
Section 10 itself, which means that he cannot exercise the general
powers of the District Court. It went on to observe that a finality is
attached to the order of the District Judge in terms of Section 11 of
the Karnataka Act is a further indication that a judge must act only
as a persona designata and not as a Court. In the 1971 Act,
however, the appeal under Section 9 can be heard and decided not
only by the District Judge himself but by any other judicial officer of
the District Court possessing requisite qualifications designated for
that purpose.
43. In the case of Sizerali Mohamedali Lodhia (supra), the
provisions of Section 9 of the Gujarat Public Premises (Eviction of
Unauthorized Occupants) Act, 1972, came up for scrutiny. The
Gujarat High Court was essentially concerned with the question as
to whether the remedy of revision against the order passed by the
appellate officer in an appeal preferred under Section 9 of the
Gujarat Public Premises Act (which is analogous to Section 9 of the
1971 Act), was maintainable before the High Court. The argument
before the Gujarat High Court was that even if it is taken that the
appellate officer is not persona designata but a Court, the question
60
arises as to whether the order passed by the appellate officer under
Section 9 of the Gujarat Public Premises Act is such against which
remedy under Section 115 of the CPC lies. After analyzing the
decisions noted in paragraph 11 of the judgment, including the
cases of Thakur Das and Mukri Gopalan (supra), the Court went on
to observe that since the order of the appellate officer has been
made final in terms of Section 10 of the State Act, it cannot be
assailed under Section 115 of the CPC before the High Court in its
revisional jurisdiction. It finally concluded in paragraph 15 that
assuming for the sake of argument that the remedy of revision lies,
it would not be an efficacious alternative remedy so as to throw out
the petition under Article 226 and/or Article 227 of the Constitution
of India. The High Court, therefore, examined the issue on merits.
44. The next case commended to us is the decision of Full Bench
of East Punjab High Court in M/s. Pitman‟s Shorthand Academy
(supra), rendered in Civil Revision Application filed under Section
115 of CPC, against the decision of the Subordinate Court in rent
proceedings arising from Punjab Urban Rent Restriction Act, 1947.
The Court analysed the provisions of the State Rent Act and opined
that the functions of the Controllers and Appellate Authorities
under the Act did not indicate any attribute of a Court of law. In
61
other words, the legislative intent behind appointing the Controllers
and Appellate Authorities was to appoint them as persona designata
and not as Court. This decision need not detain us for the reasons
already alluded to in the earlier part of the judgment which are
founded on the principles underlying the exposition of this Court in
Thakur Das and Mukri Gopalan, in particular.
45. In case of Ganga Ram Dohrey (supra), the question
considered was whether there is a specific provision given in the
U.P. Public Premises (Eviction of Unauthorised Occupants) Act,
1972, to transfer the appeal and since there is no provision in the
Act by which Section 24 of CPC has been made applicable whether
the application under Section 24 of CPC for transfer of case was
maintainable? The Court relying on the decision in the case of Abid
Ali Vs. District Judge, Baharaich,
41 concluded that application
under Section 24 of CPC was not maintainable, for, the proceedings
before the District Judge under Section 9 of the U.P. Public
Premises Act were not other proceedings under the Code of Civil
Procedure as envisaged by Section 24 of CPC.

41 (1987 Allahabad Law Journal 179)
62
46. In the Case of Jinda Ram (supra), the Division Bench of the
Madhya Pradesh High Court was called upon to consider the
maintainability of revision application under Section 115 of Civil
Procedure Code against an order passed by the District Judge as an
Appellate Officer under Section 9 of the 1971 Act. After considering
the conflicting decisions of the same High Court on the point, the
Division Bench held that an order passed by the Appellate Officer
under Section 9 is amenable to revisional jurisdiction of the High
Court under Section 115 of Civil Procedure Code. The Court relied
upon the exposition of this Court in the case of Mukri Gopalan
(supra) wherein it has been observed that the appellate authorities
constituted under the enactment constitute a class and cannot be
considered as a persona designata. Further, the appellate authority
functions as a Court. The Court also referred to another decision of
this Court in Shyam Sunder Agarwal and Co. Vs. Union of
India42 wherein it has been held that appellate order having been
passed by a Civil Court, constituted under a special statute
subordinate to the High Court though made final under the Act, it
is amenable to revisional jurisdiction of the High Court under
Section 115 of the Code of Civil Procedure. The Court relied upon

42 (1996) 2 SCC 132
63
other decisions of this Court to buttress the conclusion that the
remedy of revision under Section 115 of C.P.C. was available
against an order passed by the District Judge on an appeal under
Section 9 of the Act. Be that as it may, we are certain that remedy
under Article 227 of the Constitution of India is availed against the
decision of the Appellate Officer.
47. In the case of M. Papa Naik (supra) the Court was called
upon to examine the purport of Section 9 of the Karnataka Public
Premises (Eviction of Unauthorised Occupants) Act, 1974. Even in
this case the question was whether a remedy of revision or writ
petition would lie against the order passed by the District Judge on
an appeal preferred under Section 10 of the State Act. The Court
concluded that the order passed by the District Judge as an
appellate authority under Section 9 of the State Act does not cease
to be a Court subordinate to the High Court and any order passed
by him is amenable to the jurisdiction of the High Court under
Section 115 C.P.C.. In support of this conclusion, the learned Single
Judge relied upon the exposition in the case of Central Talkies
Ltd. (supra) and Parthasaradhi Naidu Vs. Koteswara Rao.
43

43 ILR (1924) 47 Mad 369
64
48. Even though the respondents have invited our attention to
other decisions of High Courts and also of Supreme Court which
have analysed the provisions of other legislations, it is unnecessary
to dilate on those decisions as we intend to apply the principles
underlying the decisions of three-Judge Bench of this Court in
Thakur Das (supra), Asnew Drums Pvt. Ltd. (supra),
Maharashtra State Financial Corporation (supra), Ram
Chander Aggarwal (supra) and Mukri Gopalan (supra), in
particular, to conclude that the Appellate Officer referred to in
Section 9 of the 1971 Act, is not a persona designata but acts as a
civil court.
49. In other words, 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.
65
50. Reverting to the facts of 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 our conclusion that the order
passed by the District Judge (in this case, Judge, Bombay City Civil
Court at Mumbai) 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
learned Single Judge of the Bombay High Court dated 14.08.2012
we have no hesitation in taking the view that the true nature and
substance of the order of the learned 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. Indeed, the learned Single Judge
has opened the judgment by fairly noting the fact that the writ
petition filed by the respondents was under Articles 226 and 227 of
the Constitution of India. However, keeping in mind the exposition
of this Court in the case of Ram Kishan Fauji (supra) wherein it
has been explicated that in determining whether an order of learned
Single Judge is in exercise of powers under Article 226 or 227 the
66
vital factor is the nature of jurisdiction invoked by a party and the
true nature and character of the order passed and the directions
issued by the learned Single Judge. In paragraph 40 of the reported
decision, the Court adverting to its earlier decision observed thus:
―40. xxx xxx xxx Whether the learned Single Judge
has exercised the jurisdiction Under Article 226 or Under
Article 227 or both, would depend upon various aspects.
There can be orders passed by the learned Single Judge
which can be construed as an order under both the
articles in a composite manner, for they can co-exist,
coincide and imbricate. It was reiterated that it would
depend upon the nature, contour and character of the
order and it will be the obligation of the Division Bench
hearing the letters patent appeal to discern and decide
whether the order has been passed by the learned Single
Judge in exercise of jurisdiction Under Article 226 or 227
of the Constitution or both. The two-Judge Bench further
clarified that the Division Bench would also be required
to scrutinise whether the facts of the case justify the
assertions made in the petition to invoke the jurisdiction
under both the articles and the relief prayed on that
foundation. The delineation with regard to necessary
party not being relevant in the present case, the said
aspect need not be adverted to.‖
Again in paragraphs 41 and 42, which may be useful for answering
the matter in issue, the Court observed thus:
―41. We have referred to these decisions only to
highlight that it is beyond any shadow of doubt
that the order of civil court can only be challenged
Under Article 227 of the Constitution and from
such challenge, no intra-court appeal would lie and
in other cases, it will depend upon the other factors
as have been enumerated therein.
67
42. At this stage, it is extremely necessary to cull out the
conclusions which are deducible from the aforesaid
pronouncements. They are:
42.1 An appeal shall lie from the judgment of a Single
Judge to a Division Bench of the High Court if it is so
permitted within the ambit and sweep of the Letters
Patent.
42.2 The power conferred on the High Court by the
Letters Patent can be abolished or curtailed by the
competent legislature by bringing appropriate legislation.
42.3 A writ petition which assails the order of a
civil court in the High Court has to be understood,
in all circumstances, to be a challenge Under
Article 227 of the Constitution and determination
by the High Court under the said Article and,
hence, no intra-court appeal is entertainable.
42.4 The tenability of intra-court appeal will
depend upon the Bench adjudicating the lis as to
how it understands and appreciates the order
passed by the learned Single Judge. There cannot
be a straitjacket formula for the same.‖
(emphasis supplied)
51. In the case of Radhey Shyam (supra) decided by a threeJudge
Bench, this Court after analyzing all the earlier decisions on
the point, restated the legal position that in cases where judicial
order violated the fundamental right, the challenge thereto would lie
by way of an appeal or revision or under Article 227, and not by
way of writ under Article 226 and Article 32. The dictum in
paragraphs 25, 27 and 29 of this decision is instructive. The same
read thus:
68
“25. It is true that this Court has laid down that
technicalities associated with the prerogative writs in
England have no role to play under our constitutional
scheme. There is no parallel system of King's Court in
India and of all other courts having limited jurisdiction
subject to supervision of King's Court. Courts are set up
under the Constitution or the laws. All courts in the
jurisdiction of a High Court are subordinate to it and
subject to its control and supervision Under Article 227.
Writ jurisdiction is constitutionally conferred on all High
Courts. Broad principles of writ jurisdiction followed in
England are applicable to India and a writ of certiorari
lies against patently erroneous or without jurisdiction
orders of Tribunals or authorities or courts other than
judicial courts. There are no precedents in India for the
High Courts to issue writs to subordinate courts. Control
of working of subordinate courts in dealing with their
judicial orders is exercised by way of appellate or
revisional powers or power of superintendence Under
Article 227. Orders of civil court stand on different footing
from the orders of authorities or Tribunals or courts other
than judicial/civil courts. While appellate or revisional
jurisdiction is regulated by statutes, power of
superintendence Under Article 227 is constitutional. The
expression "inferior court" is not referable to judicial
courts, as rightly observed in the referring order in paras
26 and 27 quoted above.
26. XXX XXX XXX
27. Thus, we are of the view that judicial orders of
civil courts are not amenable to a writ of certiorari
Under Article 226. We are also in agreement with the
view of the referring Bench that a writ of mandamus does
not lie against a private person not discharging any
public duty. Scope of Article 227 is different from Article
226.
28. XXX XXX XXX
29. Accordingly, we answer the question referred as
follows:
29.1 Judicial orders of civil court are not amenable
to writ jurisdiction under Article 226 of the
Constitution;
69
29.2 Jurisdiction Under Article 227 is distinct from
jurisdiction Under Article 226.
29.3 Contrary view in Surya Dev Rai is overruled.‖
(emphasis supplied)
52. Similar view has been expressed in Jogendrasinghji (supra).
In this decision, it has been held that the order passed by the Civil
Court is amenable to scrutiny only in exercise of jurisdiction under
Article 227 of the Constitution of India and no intra court appeal is
maintainable from the decision of a Single Judge. In paragraph 30
of the reported decision, the Court observed thus:
―30. From the aforesaid pronouncements, it is graphically
clear that maintainability of a letters patent appeal would
depend upon the pleadings in the writ petition, the nature
and character of the order passed by the learned Single
Judge, the type of directions issued regard being had to
the jurisdictional perspectives in the constitutional
context. Barring the civil court, from which order as held
by the three-Judge Bench in Radhey Shyam (supra) that
a writ petition can lie only Under Article 227 of the
Constitution, orders from tribunals cannot always be
regarded for all purposes to be Under Article 227 of the
Constitution. Whether the learned Single Judge has
exercised the jurisdiction Under Article 226 or Under
Article 227 or both, needless to emphasise, would
depend upon various aspects that have been emphasised
in the aforestated authorities of this Court. There can be
orders passed by the learned Single Judge which can be
construed as an order under both the articles in a
composite manner, for they can co-exist, coincide and
imbricate. We reiterate it would depend upon the nature,
contour and character of the order and it will be the
obligation of the Division Bench hearing the letters patent
appeal to discern and decide whether the order has been
passed by the learned Single Judge in exercise of
70
jurisdiction Under Article 226 or 227 of the Constitution
or both. The Division Bench would also be required to
scrutinize whether the facts of the case justify the
assertions made in the petition to invoke the jurisdiction
under both the articles and the relief prayed on that
foundation. Be it stated, one of the conclusions recorded
by the High Court in the impugned judgment pertains to
demand and payment of court fees. We do not intend to
comment on the same as that would depend upon the
rules framed by the High Court.‖
In the concluding part of the reported judgment in paragraph 44,
the Court observed thus:
―44. We have stated in the beginning that three issues
arise despite the High Court framing number of issues
and answering it at various levels. It is to be borne in
mind how the jurisdiction under the letters patent appeal
is to be exercised cannot exhaustively be stated. It will
depend upon the Bench adjudicating the lis how it
understands and appreciates the order passed by the
learned Single Judge. There cannot be a straight-jacket
formula for the same. Needless to say, the High Court
while exercising jurisdiction Under Article 227 of the
Constitution has to be guided by the parameters laid
down by this Court and some of the judgments that have
been referred to in Radhey Shyam (supra).‖
53. In paragraph 45.2 of the same judgment, the Court
authoritatively concluded that 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 and as per the
pronouncement in Radhey Shyam (supra), no writ can be issued
71
against the order passed by the Civil Court and, therefore, no letters
patent appeal would be maintainable.
54. In the impugned judgment, the Division Bench merely went by
the decisions of the Delhi High Court and its own Court in Nusli
Neville Wadia (supra) and Prakash Securities Pvt. Ltd. (supra).
We do not find any other analysis made by the Division Bench to
entertain the Letters Patent Appeal, as to in what manner the
judgment of the learned 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 of the same High Court in Nusli
Neville Wadia and Prakash Securities Pvt. Ltd.
55. In other words, the Division Bench of the Bombay 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
as has been done in the impugned judgment. That was
impermissible and of no avail, being without jurisdiction. Indeed,
that will leave the respondents with an adverse decision of the
72
learned Single Judge dismissing their writ petition No.4337 of 2012
vide judgment dated 14.08.2012, whereby the eviction order passed
by the Estate Officer dated 05.12.2011 and confirmed by the City
Civil Court on 03.04.2012 has been upheld.
56. As we have held that the Division Bench, in the facts of the
present case, could not have entertained the Letters Patent Appeal
against the judgment of the learned Single Judge, it is not
necessary for us to examine the merits of the eviction order passed
against the respondents by the Estate Officer and confirmed by the
City Civil Court and the Single Judge of the High Court. In any
case, that cannot be done in the appeal filed by the owner of the
public premises, namely, the appellant. We may, however, to
subserve the ends of justice, give liberty to the respondents to
challenge the decision of the learned Single Judge by way of
appropriate remedy, if so advised. That shall be done within six
weeks from today failing which the appellant will be free to proceed
in the matter in furtherance of the eviction order passed by the
Estate Officer and confirmed right until the High Court, in
accordance with law. 
73
57. We once again clarify that we are not expressing any opinion
either way on the merits of the eviction order passed by the Estate
Officer and the order of the City Civil Court and of the learned
Single Judge of the High Court confirming the same. As the
preliminary issue regarding the maintainability of the Letters Patent
Appeal has been answered in favour of the appellant, this appeal
must succeed.
58. Accordingly, the appeal is allowed in the aforementioned
terms. As a consequence, the judgment and order passed by the
Division Bench of the High Court of Judicature at Bombay dated
12.10.2012 in Letters Patent Appeal No.181/2012 in C.W.P.
No.4337/2012 is set aside and the said Letters Patent Appeal
stands dismissed as not maintainable. No order as to costs.
.………………………….CJI.
(Dipak Misra)
 …………………………..….J.
 (Amitava Roy)
 …………………………..….J.
 (A.M. Khanwilkar)
New Delhi;
February 20, 2018.