Hem Chandra Chakraborty vs Union of India and another

R.S. Bindra, J.C.

Civil Miscellaneous Second Appeals Nos. 54 and 55 of 1970 are between the same parties and raise identical questions of law. As such they can be conveniently dealt with by a common judgment.

The Estate Officer, Dum-Dum. Calcutta, passed two separate orders, each dated 22nd of August 1968, one directing the appellant Hem Chandra Chakraborty to pay a sum of Rs. 10.289-31 as damages on account of unauthorised occupation of Airport Restaurant in the Passenger Lounge. Civil Aerodrome. Agartala and the other calling upon him to pay a sum of Rs. 6.116.19 on account of arrears of rent in connection with the same Restaurant. Aggrieved by the two orders Hem Chandra filed separate appeals before the District Judge, Tripura u/s 9 of the Public Premises (Eviction of Unauthorised Occupants) Act. 1958 hereinafter referred to as the Act-Both the appeals were dismissed by the District Judge, one on the 3rd of August, 1970 and the other on 4th of August. 1970. It is against those orders of dismissal that the present second appeals were lodged by Hem Chandra.

It having not been indicated in the memoranda of appeals under what provision of law the appeals had been filed. I called upon Shri J. K. Roy the learned Advocate representing the appellant, to satisfy this Court about the competency and maintainability of the appeals. All that Shri J. K. Roy has been able to urge in that respect is that since Section 10 of the Act provides that save as otherwise expressly provided in the Act, every order made by an estate officer or appellate officer under the Act shall be final and shall not be called in question in any original suit, application or execution proceeding, and since that section does not prohibit the right to file a second appeal against the order of the District Judge, the aggrieved party has the right to take the matter to the High Court in second appeal in terms of Section 100 of the Civil Procedure Code. In support of that contention Shri J. K. Roy has also invited this Court''s attention to Section 8 of the Act which runs as under:

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. 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.

Shri J. K. Roy argues that since by Section 8 the estate officer has been given the same powers as are vested in a civil court under the Code when trying a suit, it follows that the order made by him if appealable to the District Judge, as provided by Section 9 of the Act. a second appeal shall lie to the High Court against the order passed by the District Judge in appeal In my opinion, the entire approach of Shri J. K. Roy to the matters in issue is misconceived.

It is settled principle of law that a right of appeal is not a natural right which the aggrieved litigant can claim and that a right of appeal is a creature of the statute and so it does not exist and cannot be assumed unless expressly given by a statute, or by some rule having the force of a statute. Reference in this connection may be made to AIR 1935 5 (Privy Council) . The Privy Council specifically held therein that all appeals exist merely by statute and unless the statutory conditions are fulfilled, no jurisdiction is given to any Court of justice to entertain them. It follows that the High Court has no inherent right to sit in appeal against all the decisions given by the District Judge. Nasiruddin Haider Vs. Hakim Muhammad Tahir and Others, . is an authority for the proposition that a wrong decision, even though it relates to jurisdiction. would not give a right of appeal unless one is provided for. In this background of law bearing on the right of appeal, it looks obvious that the burden squarely rests on the appellant to satisfy the Court that he has got the right to challenge the decision of the District Judge given under the Act by way of appeal. It is in the light of these settled principles of law that I proceed to examine the arguments addressed at the bar by Shri J. K. Roy.

Section 100 (1) of the Code provides that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed ha appeal by any Court subordinate to a High Court on one of the three grounds mentioned therein. Likewise, Section 96 which relates to first appeals from decrees, states that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Evidently Section 100 contemplates a second appeal only against a decree of a subordinate court. Therefore, it is incumbent on the present appellant to establish that the two orders made by the District Judge amount to decrees. According to Section 2 (2) of the Code, "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It Is further provided that the decree shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144 of the Code. Rule 1 of Order IV of the Code enjoins that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. It is manifest that a decree can be passed only in a suit instituted by presenting a plaint to a Court and not in any miscellaneous proceedings filed before an authority like an estate officer. Undeniably, the proceedings initiated by the estate officer against Hem Chandra were not in the nature of a suit nor the estate officer acted as a Court while deciding those proceedings. Therefore, the two orders made by the estate officer against Hem Chandra cannot be described as decrees. The corollary that follows is that the two appeals lodged by Hem Chandra with the District Judge were not appeals filed u/s 96 of the Code. It is conceded, and it looks pretty plain. that those appeals had been filed u/s 9 of the Act. That Act very obviously does not provide any second appeal to the High Court against the appellate order of the District Judge. Consequently, it is not open to Shri J. K. Roy to avail of the provisions of Section 100 of the Code for the purpose of filing the second appeals.

The argument raised on the basis of Section 8 of the Act is clearly fallacious. That section gives limited powers vesting in a civil court under the Code to the estate officer "for the purpose of holding any enquiry under this Act". The last mentioned words make it abundantly clear that the estate officer is not clothed with the status of a civil court while deciding matters that come up before him for decision under the Act. Even if the estate officer can be said to have been raised to the pedestal of a civil court by virtue of Section 8 of the Act, then too the orders passed by him as held above, cannot be described as decrees, and as such no appeal would be competent against those orders u/s 96 of the Code. It is germane to point out that the powers of the civil court given to the estate officer for the purpose of holding any enquiry under the Act are confined only to the summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents, and any other matter which may be prescribed by the rules framed under the Act. Evidently, the plenary powers exercised by a civil court under the Code have not been given to the estate officer.

The preamble of the Act reads: "An Act to provide for the eviction of unauthorised occupants from public premises and for certain incidental matters". The various steps to be taken and functions to be discharged in connection with the eviction of the unauthorised occupants from public premises and other incidental matters, such as recovery of arrears of rent and the recovery of damages from unauthorised occupants and the disposal of property left on public premises by the latter, are assigned to the estate officer, who is to be appointed by the Central Government u/s 3 of the Act. It is only the right of appeal u/s 9 of the Act which has been given to an outside authority, namely, the District Judge or his nominee. Section 10 of the Act prescribes that every order made by an estate officer or appellate officer under the Act shall be final and shall not be called in question in any original suit application or execution proceeding, except, of course, as otherwise expressly provided in that Act. This section leaves no room for doubt on the point that the Parliament envisaged only one appeal against the order of the estate officer and that appeal could be taken to the District Judge concerned or his nominee. Therefore, the scheme of the Act clearly discounts the contention of Shri J. K. Roy that the second appeal can be taken to the High Court against the appellate order of the District Judge u/s 100 of the Code. If the Parliament meant to provide a second appeal in respect of orders made under the Act, it would have said so in express language in the body of the Act itself and not left such an important matter to be the subject of a controversy.

The matters in issue yield identical conclusion when examined from another standpoint. Section 100 of the Code, which relates to second appeals. states that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court. In terms of this section the second appeal can be taken to the High Court from a decree made by a subordinate court and not a subordinate officer. Section 9 of the Act also states that an appeal shall lie from the order of the estate officer "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". According to my reading of Section 9, the right of appeal to an aggrieved party against an order of the estate officer is given not to the Court of the District Judge but to the District Judge as persona designata. Consequently the appellate order of the District Judge cannot be said to be an order made by him as a Court. As such no second appeal would be competent against his order u/s 100 of the Code.

As a result of the conclusions recorded above. I hold that no second appeal is competent against the appellate order of the District Judge passed u/s 9 of the Act and as such the two appeals filed by Hem Chandra stand rejected in limine.