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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 :

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―Heard Mr. Ranjit Kumar, learned Solicitor General  appearing on behalf of the petitioner and Ms. Sonal,  learned counsel appearing on behalf of the respondents.     

As the issue was to be debated with regard to the  maintainability of the Letters Patent Appeal, learned  Solicitor General has placed reliance on Radhey Shyam  & Anr. vs. Chhabi Nath & Ors., (2015) 5 SCC 423 and  Ram Kishan Fauji vs. State of Haryana & Ors., (2017) 5  SCC 533.  

Ms. Sonal, learned counsel representing the  respondents, would contend that there is no quarrel  about the proposition that when a challenge is made to  the order passed by the Civil Court in a writ proceeding,  it has to be treated as a proceeding under Article 227 of  the Constitution of India and, therefore, no Letters Patent  

Appeal would lie. But in a case under the Public Premises  (Eviction of Unauthorised Occupants) Act, 1971, the  Estate Officer cannot be considered as a Court and  further the appellate forum would decide the appeal  under Section 9 of the Act as the appellate officer and as  per the decision rendered by the Division Bench of the  

Bombay High Court in Nusli Neville Wadia vs. New India  Assurance Co. Ltd., 2010 (2) Mh.L.J.978, which has  placed reliance on a judgment of the Delhi High Court in  N.P.Berry vs. Delhi Transport Corporation and Anr.  15(1979) DLT 108 (para 19), it is not a Civil Court and  therefore, the order passed by the said appellate forum  

can be challenged under Sections 226 and 227 of the  Constitution of India and in that event, an intra-court  appeal would be maintainable.   

List for further hearing on 21.09.2017.‖      

The hearing on admission of the special leave petition continued on  

21.09.2017 when the Court passed the following order :  

―Leave granted.   

 Heard Mr.Ranjit Kumar, learned senior counsel for the  appellant and Ms.Sonal for the respondents.     In the course of hearing Mr.Ranjit Kumar, learned senior  counsel appearing for the appellant submitted that

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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

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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

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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.   

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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

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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.   

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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,

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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.

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& 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

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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

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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

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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

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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

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contesting respondents before the Division Bench, therefore, was  

not maintainable.   

16. Per contra, the respondents would urge that the District  

Judge/Appellate Officer exercises power under Section 9 of the  

1971 Act as persona designata and not as a Civil Court. Alluding to  

the decisions to which we will advert to a little later, the  

respondents contend that when a special statute creates an  

Appellate Officer and where it refers to the Presiding Judge and not  

to the Court to be such Appellate Officer, then it can be said that  

the reference has been made to the Judge as persona designata.  It  

is also well known that where the authority is the creation of a  

statute and is indicated or identified by a official designation or as  

one of a class, the provisions of statute would have to be looked into  

to determine whether the intention was to single him out as  

persona designata, his official designation being merely a further  

description of him. The legislative scheme concerning the Act under  

consideration does not indicate, in any manner, much less by  

necessary implication, that he can exercise powers of the Court for  

adjudication of the appeal. However, the powers and jurisdiction to  

be exercised have been circumscribed by the special law for which  

reason also he would be a persona designata. Furthermore, the Act

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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

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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

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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

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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

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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

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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 pre-

existing 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

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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 ad-

interim 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 Sub- section (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 subject- matter 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 sub- clause (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 sub- clause (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 presidency-

town shall be deemed to be a district and the chief  

judge or the principal judge of the city civil court  

therein shall be deemed to be the district judge of  

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 quasi-

judicial 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.

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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 three-

Judge 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:  

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“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;

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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.