Case Note & Summary
The petitioner, Mr. Nusli Neville Wadia, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court challenging an order passed by the Principal Judge, City Civil Court, Mumbai, under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The petitioner's appeal against the eviction order had been dismissed by the Principal Judge on 21st July 2009. The respondents, The New India Assurance Co., Ltd. and its Estate Officer, raised two preliminary objections regarding the maintainability of the petition. First, they argued that under Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960, the petition must be heard by a Single Judge, not a Division Bench. Second, they contended that since a revision application lies to the High Court against the appellate order, the court should not exercise its extraordinary writ jurisdiction. The court, after hearing arguments from both sides, addressed these preliminary issues. The court noted that the petition was filed under Article 226 and that the existence of an alternative remedy does not bar the High Court's jurisdiction. Regarding the jurisdiction of the Division Bench, the court examined Rule 18 and held that the petition did not arise from a decree or order under the Code of Civil Procedure, 1908, and thus was not covered by Rule 18(3). Consequently, the court overruled the preliminary objections and proceeded to hear the petition on merits. The judgment was delivered by a Division Bench consisting of Justices F.I. Rebello and J.H. Bhatia on 23rd February 2010.
Headnote
A) Civil Procedure - Maintainability of Writ Petition - Alternative Remedy - The court considered whether a writ petition under Article 226 is maintainable against an appellate order under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, when a revision lies to the High Court. The court held that the existence of an alternative remedy does not bar the High Court's extraordinary jurisdiction under Article 226, and the petition is maintainable. (Paras 4-5)
B) High Court Rules - Jurisdiction of Division Bench - Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960 - The court examined whether a writ petition arising from proceedings under the Public Premises Act must be heard by a Single Judge. The court held that the petition is not covered by Rule 18(3) as it does not arise from a decree or order under the Code of Civil Procedure, 1908, and thus a Division Bench has jurisdiction. (Paras 4-5)
Issue of Consideration
Whether a writ petition under Article 226 of the Constitution of India is maintainable before a Division Bench of the Bombay High Court against an appellate order under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, and whether the petition is barred by availability of an alternative remedy of revision.
Final Decision
The court overruled the preliminary objections regarding maintainability and jurisdiction, holding that the writ petition is maintainable before a Division Bench and that the availability of a revision does not bar the exercise of extraordinary jurisdiction under Article 226. The court then proceeded to hear the petition on merits.
Law Points
- Maintainability of writ petition under Article 226 despite alternative remedy
- Jurisdiction of Division Bench to hear writ petition under Public Premises (Eviction of Unauthorised Occupants) Act
- 1971
- Interpretation of Bombay High Court Appellate Side Rules 1960 Chapter XVII Rule 18
Case Details
2010 LawText (BOM) (02) 38
Writ Petition No.7946 of 2009
F.I. Rebello, J.H. Bhatia
Mr. Rafiq Dada, Senior Counsel with Mr. Percy Ghandy and Mr. Vinayak Vengurlekar i/b. M/Crawford Bayley & Co., for the Petitioner; Mr. V.Y. Sanglikar, for Respondents
The New India Assurance Co., Ltd. & Shri S.D. Dhokrikar
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging an appellate order under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
Remedy Sought
The petitioner sought to challenge the order of the Principal Judge, City Civil Court, Mumbai, dismissing his appeal under the Public Premises Act.
Filing Reason
The petitioner's appeal against an eviction order was dismissed by the Principal Judge, City Civil Court, Mumbai, on 21st July 2009.
Previous Decisions
The Principal Judge, City Civil Court, Mumbai, dismissed the petitioner's appeal under the Public Premises Act by judgment and order dated 21st July 2009.
Issues
Whether a writ petition under Article 226 is maintainable before a Division Bench of the Bombay High Court against an appellate order under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971?
Whether the petition is barred by the availability of an alternative remedy of revision?
Submissions/Arguments
Respondents argued that under Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960, the petition must be heard by a Single Judge, not a Division Bench.
Respondents argued that since a revision application lies to the High Court against the appellate order, the court should not exercise its extraordinary writ jurisdiction.
Petitioner argued that the petition is not covered by Rule 18(3) as it does not arise from a decree or order under the Code of Civil Procedure, 1908, and that the existence of an alternative remedy does not bar the High Court's jurisdiction under Article 226.
Ratio Decidendi
The existence of an alternative remedy does not bar the High Court's extraordinary jurisdiction under Article 226 of the Constitution of India. A writ petition under Article 226 arising from proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, is not covered by Rule 18(3) of the Bombay High Court Appellate Side Rules, 1960, and thus a Division Bench has jurisdiction to hear it.
Judgment Excerpts
The petition arises from an order passed by the Principal Judge, City Civil Court, Mumbai under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
The preliminary contentions urged on behalf of the respondents are (1) That considering Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules 1960 ... the Petition, in terms of Rule 18(3) must be heard by a learned Single Judge of this Court. (2) ... that against the order passed in Appeal by the Principal Judge, City Civil Court, a Revision Application lies to this Court.
Procedural History
The petitioner filed an appeal under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, which was dismissed by the Principal Judge, City Civil Court, Mumbai on 21st July 2009. The petitioner then filed the present writ petition under Article 226 of the Constitution of India before the Bombay High Court. The respondents raised preliminary objections regarding maintainability and jurisdiction, which were heard and overruled by the Division Bench on 23rd February 2010.
Acts & Sections
- Public Premises (Eviction of Unauthorised Occupants) Act, 1971:
- Bombay High Court Appellate Side Rules, 1960: Chapter XVII Rule 18
