Supreme Court of India
Municipal Corporation Of Greater … vs Vivek V. Gawde on 13 December, 2024
Author: Dipankar Datta
Bench: Prashant Kumar Mishra, Dipankar Datta
REPORTABLE
2024 INSC 985
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. OF 2024
[ARISING OUT OF SLP (CIVIL) NOS. 19602-19619 OF 2022]
MUNICIPAL CORPORATION OF GREATER
MUMBAI AND OTHERS … APPELLANTS
VERSUS
VIVEK V. GAWDE ETC. ETC. …RESPONDENTS
JUDGMENT
DIPANKAR DATTA, J.
1. Leave granted.
2. The appellants are aggrieved by the common judgment and order dated
19th July, 20221 passed on a batch of writ petitions under Articles 226 and
227 of the Constitution by a learned Judge of the High Court of Bombay.
3. The operative part of the impugned order expedites proceedings for eviction
pending before the Inquiry Officer under the Mumbai Municipal Corporation
Act, 18882 against the respondents in the manner directed within 12
months. This direction could not have and has not left the appellants
Signature Not Verified
Digitally signed by
JATINDER KAUR
aggrieved; however, they are seriously aggrieved for an altogether different
Date: 2024.12.13
19:29:14 IST
Reason:
1
impugned order, hereafter
2
Act, hereafter
reason, i.e. the learned Judge has framed points for determination by theInquiry Officer. According to the appellants, proceedings for eviction of
unauthorised occupants of public premises are summary in nature where,
upon a show cause notice being issued, the noticee is required to place his
defence which the Inquiry Officer, as the delegate of the Municipal
Commissioner, is required to consider, reasonably, and proceed to
determine, in accordance with fair procedure, as to whether the noticee is
indeed an unauthorised occupant. Also, the Inquiry Officer is under
obligation to bear in mind the provisions in Chapter V-A of the Act titled
‘POWER TO EVICT PERSONS FROM CORPORATION PREMISES’, which is a code in itself,
while so proceeding. In the present cases, the appellants submit, the
learned Judge took upon himself the burden of framing points for
determination and has, in effect, laid down a procedure which is not only
contrary to the provisions of Chapter V-A of the Act but in the process has
nullified binding decisions of the High Court and this Court and thrown legal
principles asunder, by acting entirely in excess of jurisdiction.
4. Before proceeding further, it would be worthwhile to notice the basic facts
triggering these appeals.
4.1. The respondents are occupants and/or legal heirs of the original
occupants who were allotted the subject premises on leave and license
basis in the 1960s, owing to their employment with the appellants.
4.2. In 2007, eviction proceedings were initiated against the respondents
under the provisions of the Act. The respondents knocked the doors of the
High Court, invoking its writ jurisdiction, seeking to convert their tenancy
to permanent ownership on the basis of a resolution which had allegedly
2
been passed by the Municipal Commissioner. The High Court firmly struck
down such challenge by holding that the land belonged to the people and
could not be the subject of State largesse, especially when the terms of
the respective allotments categorically stated that the license would
terminate upon the occupant’s retirement from municipal service. This
Court, vide order dated 01st May, 2017 dismissed the challenge to the
order of the High Court refusing to nullify the eviction proceedings, thus,
stamping its approval on initiation and continuation of such proceedings.
4.3. Notices were issued to the respondents under section 105B(1) of the
Act, directing them to vacate the premises which triggered the second
round of litigation by the respondents. They assailed the same, inter alia,
on the ground of breach of principles of natural justice. The High Court by
its order dated 8th December, 2021 allowed the challenge with a direction
to the Inquiry Officer to decide the eviction proceedings de novo.
4.4. It is the re-commencement of these inquiry proceedings which has
ultimately resulted in the present round of litigation. Put on notice, the
respondents wished the Inquiry Officer to decide two primary contentions:
(i) whether in the absence of regulations framed under section 105H of
the Act, the proceedings should continue; and (ii) whether the Municipal
Commissioner ought to refer the dispute to any independent forum for a
decision in a just, fair and unbiased manner. By an order dated 21st March,
2022, the Inquiry Officer ruled against the respondents. Aggrieved
thereby, the respondents presented an appeal before the Principal Judge,
City Civil and Sessions Court, Mumbai under section 105F of the Act. The
appellate authority by its order dated 4th May, 2022 refused to interfere
3
and dismissed the appeals as not maintainable. Still aggrieved, therespondents, in yet another challenge, invoked the jurisdiction of the High
Court under Articles 226 and 227 of the Constitution and assailed the
eviction proceedings premised on the same points that were raised before
the Inquiry Officer, i.e., (i) regulations not having been framed under
section 105H of the Act, proper conduct of the proceedings cannot even
be thought of; and (ii) institutional bias has vitiated the proceedings and
the rule nemo debet esse judex in propria sua causa breached to the utter
prejudice and detriment of the noticees, inasmuch as the Inquiry Officer
being the delegate of the Municipal Commissioner would be unlikely to
derogate from the authority’s decision to evict them.
5. The High Court, in the impugned judgment, commenced with deciding the
issue in favour of the appellants herein by holding that mere lack of
regulations could not be a valid ground for keeping the proceedings in
abeyance. It was further held that though the Inquiry Officer was an
employee of the first appellant, he was acting in a quasi-judicial capacity
under section 68 of the Act in an independent manner, and was thus duly
authorized to conduct the inquiry proceedings and pass appropriate orders
on the basis of evidence adduced.
6. However, after holding that the Inquiry Officer was so authorised, the High
Court, in an apparent volte face which is unexplainable, proceeded to frame
the following 9 (nine) points for determination with respect to the pending
inquiry proceedings:
“Points for determination in the Inquiry proceedings before Respondent
No. 2.
4
A. Whether the Applicant (MCGM) proves that the premises in the
aforesaid 18 enquiries are Municipal staff quarters?
B. Whether the Applicant (MCGM) proves that upon retirement of the
employees, their possession of the said premises in the aforesaid 18
enquiries has/had become unauthroized (sic, unauthorized)
C. Whether the Applicant (MCGM) proves that the proceedings under
section 105B of the MMC Act, 1888 in the aforesaid 18 enquiries are
within the period of limitation prescribed under Article 137 under the
Schedule to the Indian Limitation Act, 1963?
D. Whether the Opponents prove that the proceedings u/s 105B in the
aforesaid enquiries are barred by the law of limitation and are required
to be dismissed under Section 3 of the Indian Limitation Act, 1963?
E. Whether the Applicant (MCGM) proves that the Enquiry Officer has
the jurisdiction to try and decide the question raised by the Opponents
relating to their continuation in possession of the enquiry premises u/s
53A of the Transfer of Property Act, 1882?
F. Whether the Opponents prove that they are entitled to continue in
possession of the premises in the aforesaid 18 enquiries u/s 53A of the
Transfer of Property Act, 1882 irrespective of the proceedings u/s 105B
of the MMC Act, 1888?
G. Whether the Opponents prove that the proceedings u/s 105B are
vitiated by “institutional bias” (Nemo judex in causa sua i.e., No one
can be a judge in their own case) as the Enquiry Officer being a
delegate of the Municipal Commissioner cannot decide the enquiry
proceedings contrary to the stand of the Municipal Commissioner in his
representation/notice dated 20/12/2007 sent to the Government of
Maharashtra under the second proviso to section 64(3) of the MMC Act,
1888 for cancellation of the Improvement Committee Resolution No.
208 dated 10/08/1989 and the Municipal Corporation Resolution No.
343 of 1989 dated 01/09/1989 or any other or further letter sent by
the Municipal Commissioner to the Government of Maharashtra
including letter dated 16/09/2017 pursuant to the meeting dated
03/05/2017 presided by the Chief Minister?
H. Whether the Opponents prove that the State Government is a proper
and necessary party to the proceedings u/s. 105B of the MMC Act, 1888
and the proceedings ought to be dismissed for its non-joinder?
I. Whether the Opponents prove that the Enquiry Officer does not have
powers to summarily decide the proceedings u/s. 105B of the MMC Act,
1888 without the regulations u/s. 105H prepared by the Municipal
Commissioner?”
7. The appellants have assailed the impugned order on the grounds that
Chapter V-A of the Act being a complete code in itself, the High Court
5
effectively granted a premium to the dilatory tactics being adopted by the
respondents who are none else but unauthorised occupants of public
premises.
8. These appeals stem from the third round of litigation initiated by the
respondents before the High Court and it is the second which has reached
the Supreme Court. The proceedings, pertaining to eviction of unauthorised
occupants despite having commenced a decade and a half back, on 28th
January, 2009 to be precise, have not progressed much due to repeated
forays made by the respondents questioning the jurisdiction of the Inquiry
Officer to proceed against them. Assuming that this judgment terminates
the third round of litigation, without there being a review, the Inquiry Officer
has to resume proceedings from the stage of inquiry allowing the parties to
lead evidence. Upon evidence being led by both parties, it is the appellants’
assertion that it would be for the Inquiry Officer to identify the contentious
issues that arise for decision by him and by assigning reasons in support of
the conclusions reached qua such issues, he is required to submit a report
for consideration by the Municipal Commissioner. Even before the stage for
leading evidence having matured, the appellants allege that the High Court
has unnecessarily interfered and deflected the course of justice.
9. On the contrary, the respondents have voiced in chorus that the approach
of the High Court is one that sub-serves justice with a view to secure the
precious right to life of the respondents by narrowing down the controversy
so that the proceedings could be taken to its logical conclusion as early as
possible. Mr. Pai, learned senior counsel for the respondents, however, has
been fair in conceding certain points but having regard to the long pendency
6
of the eviction proceedings, we do not wish to decide any point resting on
such concession.
10. Having recorded thus, we now proceed to adjudicate the lis on merits.
11. We deem it fit to commence the discussion with an examination of the
constitutional provisions invoked by the respondents before the High Court
i.e. under Articles 226 and 227. Challenge was laid in the writ petitions to
an order passed by the Principal Judge, City Civil Court, Mumbai, in appeals
under section 105F of the Act. Such order held the respondents’ appeals to
be not maintainable. In their writ petition, the respondents sought, inter
alia, a writ of certiorari to quash the orders passed by the Principal Civil
Judge and that of the Inquiry Officer. We shall first proceed to examine the
challenge laid to the former.
12. A perusal of section 105F(1) would be of profit. It reads:
105F. Appeals. (1) An appeal shall lie from every order of the
Commissioner, made in respect of any corporation premises, under
section 105B or section 105C, to an appellate officer who shall be the
principal Judge of the City Civil Court of Bombay or, such other judicial
officer in Brihan Mumbai of not less than ten years’ standing, as the
principal Judge may designate in this behalf.
13. The question that arises is, whether the order was passed by the Principal
Judge as a persona designata, so as to be amenable to writ jurisdiction
under Article 226 or whether the same was passed in the capacity of a
judicial authority for the same to be amenable to Article 227 jurisdiction?
This question has been emphatically answered by a 3-Judge Bench decision
of this Court in LIC v. Nandini J. Shah3, wherein this Court with respect
3
(2018) 15 SCC 356
7
to a similar provision of appeal in the Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 held that:
“34. ***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 to in Section 9 of the Act before whom an appeal shall
lie, is in the capacity of persona designata or as a court.
35. 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 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, the 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 district concerned. 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 CPC, 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.
***
39. Indeed, the expression used in Section 9 is ‘Appellate Officer’ and
not ‘appellate authority’ as has been used in Section 6-C of the
Essential Commodities Act, 1955, considered by the Supreme Court8
in Thakur Das [Thakur Das v. State of M.P., (1978) 1 SCC 27 : 1978
SCC (Cri) 21]. 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 Judge, for deciding an appeal under Section 9, can and is
expected to exercise the powers of the civil court.
***
59. Reverting to the facts of the present case, the respondents had
resorted to remedy of writ petition under Articles 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, the 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.***”
(emphasis supplied)
14. In view of such binding decision, the inescapable conclusion presenting itself
is that the appellate order under challenge before the High Court was
rendered by a civil court, and it is trite that orders passed by a civil court
cannot be challenged in a writ petition under Article 226 of the Constitution.
This point in law has been decisively reiterated in the 3-Judge Bench
decision in Radhey Shyam v. Chhabi Nath4. This Court, while holding that
an order of the civil court could only be challenged under Article 227 of the
Constitution, and not Article 226 thereof, ruled that:
“25.***All the 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 the 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 the subordinate courts. Control of working of the
subordinate courts in dealing with their judicial orders is exercised by
way of appellate or revisional powers or power of superintendence4
(2015) 5 SCC 423
9
under Article 227. Orders of the 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 the statutes, power of superintendence under Article 227
is constitutional. The expression “inferior court” is not referable to the
judicial courts, as rightly observed in the referring order [Radhey
Shyam v. Chhabi Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted
above.
***
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 [Radhey Shyam v. Chhabi Nath, (2009) 5
SCC 616] 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.”
(emphasis supplied)
15. Thus, the writ petition of the respondents seeking quashing of the decision
of a civil court by issuing a writ of certiorari was not maintainable and ought
to have been dismissed at the threshold with respect to its primary relief.
16. We now proceed to discuss, noticing that the petition of the respondents
was also filed under Article 227, whether the High Court could have granted
succour to the respondents by exercise of its powers under such article. It
is well settled that the provision bestows the high courts with powers of
administrative and judicial superintendence over subordinate courts. The
test for exercise of such power was laid down in a 5-Judge Constitution
Bench decision of this Court in Rajendra Diwan v. Pradeep Kumar
Ranibala5 as follows:
“85. The power of superintendence conferred by Article 227 is,
however, supervisory and not appellate. It is settled law that this power
of judicial superintendence must be exercised sparingly, to keep
subordinate courts and tribunals within the limits of their authority.
When a Tribunal has acted within its jurisdiction, the High Court does
not interfere in exercise of its extraordinary writ jurisdiction unless
there is grave miscarriage of justice or flagrant violation of law.
Jurisdiction under Article 227 cannot be exercised ‘in the cloak of an
appeal in disguise’.
5
(2019) 20 SCC 143
10
86. In exercise of its extraordinary power of superintendence and/or
judicial review under Articles 226 and 227 of the Constitution of India,
the High Courts restrict interference to cases of patent error of law
which go to the root of the decision; perversity; arbitrariness and/or
unreasonableness; violation of principles of natural justice, lack of
jurisdiction and usurpation of powers. The High Court does not re-
assess or re-analyse the evidence and/or materials on record….The writ
jurisdiction of the High Court cannot be converted into an alternative
appellate forum, just because there is no other provision of appeal in
the eye of the law.”
(emphasis supplied)
17. Though adverted to before, a perusal of the grounds urged in the writ
petition reveals two primary grounds of challenge which are interconnected
– violation of principles of natural justice and that of institutional bias. The
latter ground will be dealt with at a subsequent part of this judgment while
the former does not appear to carry any merit.
18. It is not the respondents’ submission that they were not given an
opportunity of being heard by the civil court. Such opportunity having been
given, even if the conclusion arrived at by the civil court was erroneous, it
could not be remedied by the High Court in exercise of its powers under
Article 227 of the Constitution. As was held by this Court in Mohd. Yunus
v. Mohd. Mustaqim6, a mere wrong decision is not enough to attract the
jurisdiction of the High Court under Article 227. Thus, the petition of the
respondents also failed to merit the exercise of the High Court’s supervisory
powers and should have been rejected in view of the same.
19. We now proceed to consider the second relief claimed in the writ petition of
the respondents, i.e., the challenge laid to the order passed by the Inquiry
Officer. It is well settled that decisions rendered by administrative
authorities can be interfered with by high courts in exercise of Article 226
6
(1983) 4 SCC 566
11
powers, however, sparingly. Recently, this Court in W.B. Central School
Service Commission v. Abdul Halim7 while considering the scope of
interference under Article 226 in an administrative action held that:
“31. In exercise of its power of judicial review, the Court is to see
whether the decision impugned is vitiated by an apparent error of
law. The test to determine whether a decision is vitiated by error
apparent on the face of the record is whether the error is self-
evident on the face of the record or whether the error requires
examination or argument to establish it. If an error has to be
established by a process of reasoning, on points where there may
reasonably be two opinions, it cannot be said to be an error on the
face of the record, as held by this Court in Satyanarayan
Laxminarayan Hegde v. Millikarjun Bhavanappa
Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun
Bhavanappa Tirumale, AIR 1960 SC 137] . If the provision of a
statutory rule is reasonably capable of two or more constructions
and one construction has been adopted, the decision would not be
open to interference by the writ court. It is only an obvious
misinterpretation of a relevant statutory provision, or ignorance or
disregard thereof, or a decision founded on reasons which are
clearly wrong in law, which can be corrected by the writ court by
issuance of writ of certiorari.
32. The sweep of power under Article 226 may be wide enough to
quash unreasonable orders. If a decision is so arbitrary and
capricious that no reasonable person could have ever arrived at it,
the same is liable to be struck down by a writ court. If the decision
cannot rationally be supported by the materials on record, the
same may be regarded as perverse.
33. However, the power of the Court to examine the
reasonableness of an order of the authorities does not enable the
Court to look into the sufficiency of the grounds in support of a
decision to examine the merits of the decision, sitting as if in
appeal over the decision. The test is not what the Court considers
reasonable or unreasonable but a decision which the Court thinks
that no reasonable person could have taken, which has led to
manifest injustice. The writ court does not interfere, because a
decision is not perfect.’
(emphasis supplied)
20. The decision was approved by a further decision of this Court in Municipal
Council, Neemuch v. Mahadeo Real Estate8, wherein it was held that:
7
(2019) 18 SCC 39
8
(2019) 10 SCC 738
12
“14. It could thus be seen that the scope of judicial review of an
administrative action is very limited. Unless the Court comes to a
conclusion that the decision-maker has not understood the law
correctly that regulates his decision-making power or when it is found
that the decision of the decision-maker is vitiated by irrationality and
that too on the principle of ‘Wednesbury unreasonableness’ or unless
it is found that there has been a procedural impropriety in the decision-
making process, it would not be permissible for the High Court to
interfere in the decision-making process. It is also equally well settled
that it is not permissible for the Court to examine the validity of the
decision but this Court can examine only the correctness of the
decision-making process.
***
16. It could thus be seen that an interference by the High Court would
be warranted only when the decision impugned is vitiated by an
apparent error of law i.e. when the error is apparent on the face of the
record and is self-evident. The High Court would be empowered to
exercise the powers when it finds that the decision impugned is so
arbitrary and capricious that no reasonable person would have ever
arrived at. It has been reiterated that the test is not what the Court
considers reasonable or unreasonable but a decision which the Court
thinks that no reasonable person could have taken. Not only this but
such a decision must have led to manifest injustice.”
(emphasis supplied)
21. For the present, we keep aside the doctrine of merger. Once the appellate
order of the Appellate Officer came into existence, the order of the Inquiry
Officer merged in the former. It had no independent existence. Yet, we have
perused the order of the Inquiry Officer and we wish to consider, at this
point of time, whether the same warrants interdiction. A perusal thereof
reveals a reasoned order, supported by judicial decisions, answering
distinctly each and every contention raised by the noticees. What seems to
be apparent is the absence of any of the telling circumstances, as laid down
in the decisions above, which could have warranted interference by the High
Court in exercise of its writ jurisdiction under Article 226; thus, on this count
too, the respondents’ writ petition was liable to be dismissed.
13
22. In view of the discussion aforesaid, it is held that the High Court in the
present case exceeded the ambit of both, its writ and supervisory,
jurisdiction insofar as it proceeded to frame points for determination in a
summary proceeding, more so when the proceedings were at the embryonic
stage of notice having been issued to the respondents. Having directed that
the proceedings be conducted in consonance with the principles of natural
justice, the High Court overstepped its limits and took unto itself a duty
which the Act entrusts the statutory authority to exercise. The High Court
could, at best, have moulded relief as deemed fit and proper, but in framing
issues for the Inquiry Officer to determine, the High Court went far beyond
its domain by substituting its own wisdom for that of the civil court.
23. Now, it would be apt to examine the points of determination framed by the
High Court and decide how far the same are justified on facts and in the
circumstances and whether the same were, at all, necessary. The points can
be classified into six categories, which we shall delineate and address
hereunder.
24. The first two points framed by the High Court pertain to the status of the
subject premises and the nature of occupation thereof by the residents.
Determination of these issues stands barred by res judicata, a previous
bench of the High Court having answered the same against the respondents
vide judgment and order dated 06th January, 2017 by expressly holding that
the allotments not having been made to the respondents independent of
their identity as municipal servants, they could not stake any claim therein.
14
This decision attained finality by the dismissal of the special leave petition
by this Court vide order dated 01st May, 2017.
25. The third and fourth points touch upon the aspect as to whether the
proceedings initiated under section 105B of the Act are barred by limitation.
Reference has been made by the High Court to section 3 of the Limitation
Act, 19639. We are at a loss to comprehend as to how section 3, scope
whereof is relatable to proceedings like suits, appeals and applications
before judicial fora, could have been attracted to eviction proceedings
before the Inquiry Officer which, though obliging the Inquiry Officer to
discharge quasi-judicial functions in course thereof, yet, are basically
administrative in character. Additionally, in referring to Article 137 , the High
Court ignored and/or overlooked the Preamble of the Limitation Act and the
heading of the Third Division under the Schedule read with sections 2(j) and
section 3.
26. The fifth and sixth points framed by the High Court pertain to the right of
the respondents to remain in possession by virtue of section 53A of the
Transfer of Property Act, 1882. It is alleged that the first appellant instead
of resuming possession of the subject premises had retained the retirement
benefits of the respondents as monetary consideration for converting the
nature of possession from that of a licensee to that of an owner. We leave
this point open for the Inquiry Officer to determine, if at all the respondents
raise the same before him, bearing in mind the fact that such point is not
in the nature of a demurrer which could be raised for nipping the
9
Limitation Act, hereafter
15
proceedings in the bud for lack of jurisdiction and, thus, had not been
examined in the previous round of litigation.
27. The seventh point raises the issue as to whether the proceedings are
vitiated by institutional bias insofar as the same are being conducted by an
officer of the first appellant. The answer to this issue is squarely covered by
the decision of this Court in Accountant and Secretarial Services (P)
Ltd. v. Union of India10, wherein the question which fell for consideration
was whether the appointment of an officer of a nationalised bank, in
proceedings pertaining to eviction from the premises of the very same bank,
would violate Article 14 of the Constitution. This Court, while upholding such
appointment, held that:
“32. Dr Chitale, while initially formulating his contentions, outlined an
argument that the provision in the 1971 Act appointing one of the
officers of the respondent Bank as the Inquiry Officer is violative of
Article 14. We do not see any substance in this contention. In the very
nature of things, only an officer or appointee of the government,
statutory authority or corporation can be thought of for implementing
the provisions of the Act. That apart, personal bias cannot necessarily
be attributed to such officer either in favour of the bank or against any
occupant who is being proceeded against, merely because he happens
to be such officer. Moreover, as pointed out earlier, the Act provides for
an appeal to an independent judicial officer against orders passed by
the Inquiry Officer. These provisions do not, therefore, suffer from any
infirmity. …”
(emphasis supplied)
28. This decision was affirmed by this Court in Delhi Financial Corpn. v. Rajiv
Anand11, wherein this Court further explained that:
“14. Thus, the authorities disclose that mere appointment of an officer
of the corporation does not by itself bring into play the doctrine that
‘no man can be a judge in his own cause’. For that doctrine to come
into play it must be shown that the officer concerned has a personal
bias or a personal interest or has personally acted in the matter10
(1988) 4 SCC 324
11
(2004) 11 SCC 625
16
concerned and/or has already taken a decision one way or the other
which he may be interested in supporting.”
29. Reference to the decision of this Court in Hyderabad Vanaspathi Ltd. v.
A.P. SEB12 would also be of profit, wherein the 3-Judge Bench was tasked
with examining whether adjudication of malpractice and electricity pilferage
cases by officers of the very electricity board against whom the wrong has
been committed would constitute bias. While negativing such challenge, this
Court held that:
“43. The principle ‘nemo judex in causa sua’ will not apply in this case
as the officers have no personal lis with the consumers. As pointed out
by learned Senior Counsel for the Board, they are similar to income tax
or sales tax officials. There is nothing wrong in their adjudicating the
matter especially when the consumers may be represented by an
advocate and the formula for making provisional assessment is fixed
in the clause itself. …”
(emphasis supplied)
30. The discussion would be incomplete without a reference to the 7-Judge
Constitution Bench decision in Maganlal Chhaganlal (P) Ltd. v.
Municipal Corpn. of Greater Bombay13 cited by Mr. Mehta, learned senior
counsel for the appellants, wherein this Court while upholding the
constitutional validity of Chapter V-A of the Act held that:
“47. If we examine the question before us in the light of these general
observations, it will be apparent that the special procedure set out in
Chapter VA of the Municipal Act is not substantially more drastic and
prejudicial than the ordinary procedure of a civil suit. The initial
authority to determine the liability to eviction is no doubt the Municipal
Commissioner who is the chief executive officer of the Municipal
Corporation and who may not be possessed of any legal training but
Section 68 of the Municipal Act provides that this function may be
discharged by any Municipal officer whom the Municipal Commissioner
may generally or specially empower in writing in that behalf and the
Municipal Commissioner can, therefore, authorise a Deputy Municipal
Commissioner attached to the Legal Department of the Municipal12
(1998) 4 SCC 470
13
(1974) 2 SCC 402
17
Corporation, who would be an officer trained in law, to discharge this
function and indeed we have no doubt that the Municipal
Commissioner, if he is himself not trained in law, would do so. The
determination of the liability to eviction would, therefore, really in
practice be made by a Municipal officer having proper and adequate
legal training. Then again, the occupant against whom the special
procedure is set in motion would have a right to file his written
statement and produce documents and he would also be entitled to
examine and cross-examine witnesses. The Municipal Commissioner or
other officer holding the inquiry is given the power to summon and
enforce the attendance of witnesses and examine them on oath and
also require the discovery and production of documents. The occupant
is also entitled to appear at the inquiry by advocate, attorney or
pleader. Thus, in effect and substance the same procedure which is
followed in a civil court is made available in the proceeding before the
Municipal Commissioner or other officer holding the inquiry. Then there
is also a right of appeal against the decision of the Municipal
Commissioner or other officer and this right of appeal is to a senior and
highly experienced judicial officer and not to a mere executive
authority. The appeal lies to the Principal Judge of the City Civil Court
or such other judicial officer in Greater Bombay of not less than ten
years standing as the principal Judge may designate in that behalf and
it is an appeal both on law and fact. It is true that a revision application
against the appellate order is excluded, but if the judicial officer
invested with appellate power has failed to exercise his jurisdiction or
acted in excess of his jurisdiction or committed an error of law apparent
on the face of the record or the decision given by him has resulted in
grave miscarriage of justice, it is always open to the aggrieved party
to bring it up before the High Court for examination under Article 226
or Article 227. The ultimate decision is, therefore, by a judicial officer
trained in the art and skill of law and not by an executive officer. …”
(emphasis supplied)
31. In view of the above authorities, it is clear as crystal that if the officers have
no personal interest in the lis, bias cannot be imputed; especially since, the
officer is acting not in his capacity as an executive official, but as a quasi-
judicial authority. The issue, thus, does not survive for determination by the
Inquiry Officer. It is apposite to note that the High Court, in paragraph 13
of the impugned order had already rendered a finding on the issue by
holding that though the Inquiry Officer was an officer of the first appellant,
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in the inquiry proceedings, he is an independent quasi-judicial officer under
the Act. To frame a point despite such determination is plainly
incomprehensible.
32. The eighth point raises the issue of impleading the State Government in the
proceedings under section 105B of the Act. The legality of the proceedings
have already been held against the respondents, and the subject premises
admittedly being that of the first appellant, the question of impleading the
State Government is superfluous.
33. The ninth point examined by the High Court as regards the Inquiry Officer’s
competence to proceed with the inquiry in the absence of regulations having
been framed under section 105H of the Act, yet again, compels us to take
a critical view. The High Court framed an issue, the answer to which was
given by it in paragraph 13 of the impugned order wherein it has been held
that mere non-framing of regulations would not entitle the respondents to
keep the proceedings in abeyance, and the proceedings would thus
continue, in compliance with the principles of natural justice. Further,
section 105H of the Act was examined to observe that it was not mandatory
for the first appellant to frame regulations, since the provision stated that
the Commissioner “may” make regulations for taking possession of
premises of the first appellant.
34. We hold that even in the absence of regulations being framed under section
105H of the Act, the proceedings for eviction can be continued by the
Inquiry Officer by adhering to principles of natural justice. The said provision
cannot be construed as placing an embargo on the Inquiry Officer to
proceed until regulations were framed. Much of the utility in ensuring that
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public premises are made free of unauthorised occupants would be lost on
such technical pleas based raised and examined on a provision of law which
is not imperative in terms. All that is required, as held above, is adherence
to natural justice principles wherever applicable.
35. The impugned order entertaining writ petitions which were not maintainable
in the form they were presented did not warrant the High Court to exercise
jurisdiction by framing points for determination by the Inquiry Officer. For
the foregoing reasons, the same is indefensible; it has to be and is,
accordingly, set aside. The civil appeals stand allowed. The Inquiry Officer
is directed to allow both parties to lead evidence and raise whatever points
are available in defence, except to the extent determined by judicial orders
previously. Such officer would proceed to independently notice contentions
and issues arising for his decision on the basis of evidence led and the
defence raised by the respondents, and decide the claims in consonance
with principles of natural justice. The Inquiry Officer is encouraged to
proceed with expedition.
36. There shall be no order as to costs.
…….………………………………J.
(DIPANKAR DATTA)
………………………………………J.
(PRASHANT KUMAR MISHRA)
New Delhi;
December 13, 2024.
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