Smt. Shaili Devi @ Shaila Kumar v. The Union of India

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellants For the Union of India : Mr. V.P. Singh, Sr. Advocate Mr. Bhaiya Vishwajeet Kumar, Advocate : Mr. Anil Kumar, Addl.SGI Mr. Vikash Kumar, CGC --------------- O R D E R 27th February 2023 Per, Shree Chandrashekhar, J. The appellants who are the writ petitioners are aggrieved of the order dated 17th November 2022 passed in W.P(C) No.2404 of 2013 by which their challenge laid to the order dated 2nd April 2013 passed in Misc. Appeal No.17 of 2011 by the District Judge-III, East Singhbhum at Jamshedpur has been rejected.

2. At the outset, Mr. Anil Kumar, the learned Addl.SGI has raised a preliminary objection to maintainability of the present Letters Patent Appeal on the ground that against an order passed by a Single Judge of this High Court under Article 227 of the Constitution of India a Letters Patent under Clause 10 of the Letters Patent of 1916 constituting the High Court of Judicature at Patna as adopted by the High Court of Jharkhand shall not lie.

3. In support of the aforesaid submission, the learned Addl.SGI has referred to judgment of the Hon'ble Supreme Court in “Life Insurance Corporation of India v. Nandini J. Shah & Ors.” (2018) 15 SCC 356.

4. In “ Nandini J. Shah”, the Hon'ble Supreme Court has held as 2 L.P.A No.600 of 2022 under: “14. On the question of maintainability of the letters patent appeal, the Division Bench [Nandini J. Shah v. LIC, 2012 SCC OnLine Bom 1539 : (2012) 6 AIR Bom R 713] of the High Court answered the same in the following words : (Nandini J. Shah case [Nandini J. Shah v. LIC, 2012 SCC OnLine Bom 1539 : (2012) 6 AIR Bom R 713] , SCC OnLine Bom paras 13-15) this Court Bench of “13. Firstly we will deal with the contention regarding maintainability of this letters patent appeal. The 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 [Prakash Securities (P) Ltd. v. LIC, WP No. 9040 of 2011, order dated 15-11-2011 (Bom)] and after the decision of the in Prakash Securities (P) Full Ltd. v. LIC [Prakash Securities (P) Ltd. v. LIC, 2012 SCC OnLine Bom 633 : (2012) 4 Bom CR 1] dated 26-4-2012, 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. The learned counsel for the 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 and 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 Nusli Neville Wadia v. New India Assurance Co. Ltd. [Nusli Neville Wadia v. New India Assurance Co. Ltd., 2010 SCC OnLine Bom 271 : (2010) 2 Mah LJ 978 : (2010) 4 Bom CR 807] However by an order dated 15-11-2011 [Prakash Securities (P) Ltd. v. LIC, WP No. 9040 of 2011, order dated 15-11-2011 (Bom)] , another Division Bench of this Court expressed doubt about the correctness of the observation made in Nusli Neville Wadia [Nusli Neville Wadia v. New India Assurance Co. Ltd., 2010 SCC OnLine Bom 271 : (2010) 2 Mah LJ 978 : (2010) 4 Bom CR 807] 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 Prakash Securities [Prakash Securities (P) Ltd. v. LIC, 2012 SCC OnLine Bom 633 : (2012) 4 Bom CR 1] found that clause (3) of Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 was wide enough to include orders passed by any quasi-judicial authority under any enactment, even if such explanation is not covered by clauses (1), (2), (4) to (43) of Rule 18. The Full Bench found that the order passed by quasi- judicial authority under the Public Premises Act is also covered by Rule 18(3) so as to indicate that the petitions under Articles 226 and 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 26-4-2012. 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 Nusli Neville Wadia [Nusli Neville Wadia v. New India Assurance Co. Ltd., 2010 SCC OnLine Bom 271 : (2010) 2 Mah LJ 978 : (2010) 4 Bom CR 807] , were not correct. The petitions relating to orders passed under the Public Premises Act were being entertained by the Division Bench when the rules provided that 3 L.P.A No.600 of 2022 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 Act, from the Division Bench and to place them before the Single Judge. In fact the 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, the judgment of the Full Bench does not take away that right in respect of petitions challenging the orders passed under the Public Premises Act. Therefore the argument 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.”

5. The learned Addl.SGI has also referred to the judgment dated 2nd December 2005 passed by a Full Bench of this Court in L.P.A Nos.312 of 2004 and 393 of 2004 whereunder it has been held that a Letters Patent Appeal against the order passed under Article 227 of the Constitution of India is not maintainable. The relevant paragraphs in the judgment of the Full Bench read as under: “11. So far as Clause-10 of the letters patent appeal of the High Court at Patna, as adopted by the Jharkhand High Court is concerned, it is almost same and similar to Clause-15 of the letters patent appeal of Bombay High Court. Therefore, the principles as laid down by the Supreme Court and referred to above, is also applicable in the present cases. 12. From the decisions of the Supreme Court aforementioned, it is clear that if a Single Judge exercises jurisdiction under Article 226 as well as both under Articles 226 and 227 of the Constitution of India, against such judgment, letters patent appeal under Clause-10 shall lie before this Court. On the other hand, if learned Single Judge exercises his jurisdiction only under Article 227 of the Constitution, letters patent appeal under Clause-10 would not be maintainable against such judgment before a Division Bench of this Court. 13. From the writ petition. W.P.(C) No.1341 of 2004 preferred by appellant "Swapan Kumar Bandopadhyay" (L.P.A. 312/2004), it is evident that the said application was preferred only under Article 227 of the Constitution of India, whereas the appellant "Doman Mahato" (L.P.A. 393/2004) had filed writ petition, W.P.(C) No.3612 of 2003 under Article 226 of Constitution, but the learned Single Judge passed the impugned order in exercise of his jurisdiction under Article 227 of Constitution of India. 14. In the circumstances, both the appeals filed under Clause-10 of the Letters Patent against the order(s) passed under Article 227 of Constitution are not maintainable. The question, as raised in these appeals is, accordingly, answered in negative and against the appellants. Both the appeals are, accordingly, dismissed. However, in 4 L.P.A No.600 of 2022 the facts and circumstances, there shall be no order, as to costs.”

6. Notwithstanding the aforesaid legal position, Sri V.P Singh, the learned senior counsel for the appellants would urge that (i) the Estate Officer who has issued notice under section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and adjudicated upon the matter was not the officer designated as the Estate Officer under the Act (ii) the dispute which fell for consideration before the Estate Officer could not have been decided in a summary manner as has been done by the order dated 29th September 2011 passed in EC No.66 of 1978, and (iii) the jurisdictional issue one of which was that a proceeding against a dead person could not have been taken out has been erroneously decided by the writ Court.

7. However, in view of the judgment of the Hon'ble Supreme Court and the Full Bench decision of this Court, we shall not deal with any of the submissions raised on behalf of the appellants and, L.P.A No.600 of 2022 is held not maintainable and dismissed as such. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated : 27th February 2023 sudhir/N.A.F.R.