SIDHARTHAN Vs. ESTATE OFFICER

JUDGEMENT

(1.) The petitioner challenges the decision of the Appellate Authority under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The petitioner has sought to invoke the jurisdiction of this court under Art.226 and 227 of the Constitution. There cannot be any doubt that this court could exercise its jurisdiction under Art.227 of the Constitution even if the Appellate Authority under the Act is treated as a court. But the jurisdiction under Art.226 of the Constitution to issue a writ of certiorari cannot be exercised in view of the decision of the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra ( AIR 1967 SC 1 ).

(2.) I will first consider whether the Appellate Authority under the Act is a court or is only a persona designa. S.9 of the Act provides that an appeal shall lie 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 year standings as the District Judge may designate in this behalf. Though sub-section 3 of Section. 9 provides for certain matters, there is no provision in the section regarding the procedure to be followed by the Appellate Officer. S.10 of the Act gives a finality to the order of the Appellate Officer and bars a suit, application or proceedings in execution. S.15 of the Act bars the jurisdiction of court to deal with any matter in respect of the eviction of any person or the recovery of arrears of rent. S.16 protects action taken in good faith. A look at the scheme of the Act indicates that the Appellate power is conferred on the on the District Judge without providing the procedure for the disposal of the appeal except to say that the appeal should be disposed of as expeditiously as possible, that the Appellate Officer has the right to pass on order of stay and the discretion to award or not to award costs of any appeal. This therefore appears to be a case where a jurisdiction is conferred on the Judge of a Principal Civil Court of original jurisdiction other than the High Court. No doubt the authority is designed as Appellate Officer. But that by itself would not convert that officer into a persona designata. But there is a further provision which enables the District Judge to delegate another judicial officer in that District of not less than ten years standing to act as Appellate Officer. The appellation Appellate Officer coupled with the power granted to the District Judge to designate another appellate officer could be a circumstance to indicate that the Appellate Officer was intended to be a persona designata .The test to determine whether a District Judge appointed as an appellate Authority under the provisions of a statute would be persona designata or a court was considered by the Supreme Court in the rent decision in Mukri Gopalan v. Cheppilat Puthenpurayil 1995 (2) KLT 205 ). Therein considering the scheme of an Appellate Authority under S.18 of the Kerala Buildings (Lease and Rent Control) Act which provided for conferment of the appellate jurisdiction on such officers and authorities not below the rank of a Subordinate Judge, the Supreme Court held that the Appellate Authority function's as a court. Dealing with a situation arising under the Indian Telegraph Act where the power was conferred on the District Judge, His Lordship Justice G. Viswanatha Iyer in K.S.E. Board v. Narayanan ( 1973 KLT 968 ) held as follows:-

(3.) The question then is whether the decision arrived at by the Estate Officer as confirmed by the Appellate Officer is liable to be interfered with in exercise of jurisdiction under Art.227 of the Constitution. The petitioner had earlier approached this court with O.P.6229 of 1994 seeking the quashing of the notice issued by the Estate Officer. The petitioner did not question the jurisdiction of the Estate Officer to initiate proceedings against him as can be seen from the judgment rendered by this court on 6.5.1994. The only contention raised by the petitioner was that he had been in possession for a number of years, that he was not heard before the Estate Officer issued the notice dt.6.4.1994 and that he may be given a proper opportunity of being heard and the Estate Officer may be directed to pass a revised order. This plea was accepted by this court which directed the Estate Officer to give the petitioner an opportunity of being heard and to pass a fresh order and until then to keep in abeyance his earlier notice. The petitioner has no case that he was not given an adequate opportunity to put forward his case. The Estate Officer noted that the petitioner had admitted in an affidavit filed before him that the land belonged to the Railways. For the reasons stated in the order Ext. P1, the Estate Officer passed an order directing the petitioner to vacate the premises. The petitioner filed an appeal before the appellate Officer. It is seen from the judgment of the Appellate Officers, the District Judge that the main contention raised was that the property was occupied by the father of the petitioner as a kudikidappukaran under Ernakulam Devaswom and that the Railway had absolutely no right either in the property or in the building and that the order for eviction passed under the Public Premises (Eviction of Unauthorized Occupants) Act was improper. The petitioner also produced certain additional evidence before the Appellate Officer. The Appellate Authority on a re-apprisal of the materials came to the conclusion that there was nothing to show that the father of the petitioner had occupied the property under the Ernakulam Devaswom as a Kudikidappukaran, that no evidence was adduced by the petitioner to show that the property belonged to Ernakulam Devaswom on absolute right and that the fact that the petitioner had started occupation of the building from the year 1979 would not establish that the property belonged to him absolutely or go to counter the title of the Railways over that property. The Appellate Authority also noticed that no contention was raised on behalf of the appellant that the order of the Estate Officer was passed against him without complying with the requirements under the act. It is in that view that the appellate Authority dismissed the appeal. It is necessary to notice that no contention was raised before the Appellate authority that there was no jurisdiction in the Estate Officer to initiate proceedings under the Act.