Bombay High Court

Smt.Meera R. Khanna vs Arun Kumar Ohri on 19 December, 2009

Bench: A.S. Oka

                                         1

     mst




                                                                            
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   ORDINARY ORIGINAL CIVIL JURISDICTION




                                                    
                           NOTICE NO.1099 OF 2009
                                    IN
                   EXECUTION APPLICATION NO.228 OF 2009




                                                   
                                    IN
                    EVICTION PROCEEDINGS NO.37 OF 2004


     Smt.Meera R. Khanna,




                                      
     R/o.Flat No.33, Building 17, MHADA Flats,
     Bandra Reclamation, Bandra (W),
                       
     Mumbai 400 050.                                                       Applicant

             VERSUS
                      
     Arun Kumar Ohri, Flat No.11,
     Maharashtra Fisheries Co-op. Hsg. Soc;
     Kaustubha, Plot No.8, Bandra Reclamation,
     Bandra (W), Mumbai 400 050 having his
     office at Ad factors Advertising, 2nd floor,
      


     Manek Mahal, Veera Nariman Road,
     Mumbai 400 020.                                                    Respondent
   



     Ms.H.B.Gandhi for the applicant.
     Mr.Gaurav Mehta for the respondent.





                                      CORAM : A.S.OKA, J.

DATE : 19th December 2009

JUDGEMENT :-

1. A notice was taken out by the applicant under Rule 22 of Order

XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the

said Code"). With a view to appreciate the submissions made, it will be

necessary to consider the factual matrix of the case. An application was

filed by the applicant under section 24 of the Maharashtra Rent Control

Act, 1999 (hereinafter referred to as "the said Act"). The applicant claimed

that she was a licensor of a residential premises and she had granted

leave and license to the respondent to use and occupy the said premises.

An order of eviction was prayed for. By judgment and order dated 27th

December 2004, the Competent Authority passed an order of eviction and

also directed the respondent to pay the damages @ Rs.50,000/- per

month from 1st June 2004 till handing over of vacant possession of the

said premises.

2. The Competent Authority by order dated 26th March 2009

transferred the order of payment of compensation to this Court for

execution. The claim under the said order was of Rs.3,50,000/-.

Accordingly, an execution application was filed by the applicant praying for

various reliefs including attachment of assets of the respondent. In the

execution, present notice under Rule 22 of Order XXI of the said Code

was issued. The respondent has submitted objections to the execution by

filing an affidavit. Accordingly, I have heard the learned counsel for the

parties on the objections raised to the execution.

3. The learned counsel appearing for the respondent invited my

attention to section 24 of the said Act and submitted that under section 24,

the Competent Authority is conferred with the jurisdiction only to pass an

order of eviction. He submitted that on conjoint reading of sub- sections

(1) and (2) of section 24 of the said Act, the Competent Authority is not

conferred with the power to pass an order directing the licensee to pay the

damages at double the rate of agreed license fee of the premises. He

invited my attention to the provisions of Chapter-VIII of the said Act and in

particular section 45 thereof. He submitted that under section 45 a power

is conferred on the Competent Authority to forcibly evict the licensee

against whom an order of eviction has been made under sub-section (1)

of section 24 of the said Act. He submitted that the very fact that there is

no provision made in the said Act for execution of an order of Competent

Authority regarding payment of damages shows that the legislature never

intended to confer any power on the Competent Authority to pass an order

directing the licensee to pay the damages. He submitted that the order

sought to be executed is nullity.

4. Without prejudice to the aforesaid contentions , learned counsel for

the respondent submitted that the order passed by the competent

authority of directing payment of compensation is neither an order within

the meaning of section 2(14) nor a decree within the meaning of section

2(2) of the said Code. He submitted that the Competent Authority is not a

Civil Court. He placed reliance on a decision of the Apex Court in the

case of Prakash S. Jain Vs. Marie Fernandes [2004(5)-ALL M.R.(SC)-1.

He submitted that the Apex Court has held that the Competent Authority

exercising the jurisdiction under section 24 of the said Act is not a Court

and, therefore, the Competent Authority has no power to condone the

delay in filing an affidavit seeking leave to defend contemplated by sub

section 4(a) of section 43 of the said Act. He submitted that as the Apex

Court has already held that the Competent Authority is not a Court, by no

stretch of imagination it can be said that the order passed by the

Competent Authority is either an order or a decree within meaning of

section 2 of the said Code. He, therefore, submitted that the Competent

Authority had no jurisdiction to transfer the order to this Court for the

purposes of execution. He submitted that for the aforesaid reasons the

order of Competent Authority is not capable of being executed and the

applicant will have to file a civil suit for recovery of the amount of

damages.

5. The learned counsel for the applicant submitted that the Competent

Authority had made adjudication on the rights of the parties and,

therefore, the order passed by the Competent Authority has force of a

decree. She submitted that the Competent Authority has a right to

adjudicate upon all the disputes between the licensor and the licensee

and to pass an order of eviction. She submitted that the Competent

Authority is a Court and, therefore, the order is capable of being executed.

Reliance is placed on decision of this Court in case of Fundacio Privada

Intervida Vs. Additional Commissioner, Pune Division, Pune and

another [2005(2)-Mh.L.J.-769. Her submission is that there is no merit in

the objection raised by the respondent.

6. Broadly following issues arise for consideration viz. :-

I. Whether the Competent Authority under the said Act has a

jurisdiction to issue a direction directing the licensee to pay the

damages as contemplated by sub- section (2) of section 24 of

the said Act ?

II. Whether the Competent Authority can be considered as a

Court?

III. Whether final order of eviction and payment of damages passed

by the Competent Authority can be termed as an order or a

decree which is capable of being executed under the provisions

of the said Code?

7. Section 24 of the said Act reads thus :-

"24. Landlord entitled to recover possession of

premises given on licence on expiry.-

(1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to

him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making

an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.

(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.

(3) The competent Authority shall not entertain any claim

of whatever nature from any other person who is not a licensee according to the agreement of licence.

Explanation.- For the purposes of this section,-

(a) the expression "landlord" includes a successor-in- interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a

tenant or a sub-tenant who has given premises on licence;

(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein."

Sub-section (1) of section 24 confers jurisdiction on the Competent

Authority to pass an order of eviction against a licensee on being satisfied

that the license period has expired. Sub-section (2) lays down that a

licensee who does not vacate the licensed premises on expiry of license

and continues to be in possession thereof till the time the Competent

Authority passes an order of eviction, the licensee shall be liable to pay

the damages at double the rate of licensee fee or charge of the licensed

premises fixed under the agreement. Sub-section (2) of section 24 thus

makes the licensee liable to pay the damages from the date on which the

license expires at double the rate of agreed license fee. When an

application for eviction is made before the Competent Authority on the

ground that the period of license has expired either by efflux of time or by

revocation thereof, the competent authority is required to adjudicate upon

the question whether the period of license has expired. Before making

such adjudication, the competent authority has to come to a conclusion

that the applicant is the licensor and the respondent is the licensee. Sub

section (2) of section 24 creates a liability on the part of the licensee and a

corresponding right in favour of the licensor. The liability follows from the

fact that the licensee does not vacate the licensed premises on expiry of

period of license or on revocation of the period of license. Therefore,

once a Competent Authority after adjudication comes to a conclusion that

the licensee continues to occupy the premises after expiry of license

period or after due revocation of license, the order for payment of

compensation under sub section 2 of section 24 must follow. If the

submission made by the counsel for the respondent is accepted, it will

follow that even after the Competent Authority passes an order of eviction

on finding that the license has come to an end, the licensor will have to

proceed against the licensee by filing appropriate proceedings such as a

suit for recovery of the amount. As stated earlier, the liability of the

licensee to pay the damages as provided under sub section 2 of section

24 is a logical consequence of order of eviction being passed under sub-

section (1). Therefore, once the Competent Authority passes an order of

eviction, the order for payment of damages follows , as the said licensor

becomes liable to pay compensation as provided under sub-section (2) of

section 24 , on the Competent Authority finding that the licensee has not

vacated the premises after expiry of period of licensee.

8. On this aspect it will be necessary to consider the decision of this

Court in the case of Fundacio Privada Intervida (supra). This was a case

where an application was made under section 24 of the said Act by the

licensor. During pendency of the proceedings, the licensee vacated the

licensed premises. A pursis was filed by the licensor acknowledging

receipt of possession in which the licensor stated that he has right to

recover the license charges, damages etc. The Competent Authority

dropped the proceedings. An application for review of the said order was

made by the licensor. The said application came to be rejected. A

revision application was filed before the revisional authority which ended

in an order of remand to the Competent Authority. The issue which was

considered by this Court was whether the Competent Authority has

jurisdiction to pass an order determining the compensation or damages.

Paragraphs 20 and 21 of the said decision read thus :-

"20. The concept of jurisdiction also needs consideration. Jurisdiction means authority to decide. Whenever a judicial Tribunal is required to inquire into a question of law or fact, for the purpose of giving decisions on it. The question whether the Tribunal has jurisdiction depends upon the

section to which it owes its birth. The Tribunal empowered to determine claim under a particular legislation has the

jurisdiction to determine all questions of law and fact relating to that claim subject to the provisions of the Act. Thus, a Tribunal like the one in this case, is empowered to determine claim for compensation for loss of office has a jurisdiction to determine all questions of law and fact

relating to the measure of compensation. It does not exceed its jurisdiction by determining any such questions. Section 24 of the said Act, which lays, "notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the

landlord on expiry of the period of license; and on the failure of the licensee to so deliver possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired shall pass an order for eviction of a licensee." "Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages

at double the rate of the licence fee or charge of the premises fixed under the agreement of licence."

21. The dissection of the above section makes it clear that any licensee, who does not deliver possession of the

premises to the landlord on the expiry of the period of license and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority is liable to pay damages at double the rate of the license fee or charge of the premises fixed under the Agreement of

Licence. Section 40 deals with the appointment of the Competent Authority for the purpose of exercising powers conferred, and for performing duties imposed, on him under the Act. If that be so the conjoint reading of sections 24 and 40 and the scheme of the said Act would make it

absolutely clear that the Competent Authority is not only entitled to recover possession of the premises or

dispossess the licensee but also has power to award compensation as contemplated under section 24(2) of the said Act. Thus, the power to determine an award

and/or compensation and/or damages and/or monetary part of the liability is not only incidental to the power to evict but a specific duty coupled with power, to determine this liability, is bestowed on the Competent Authority. The Competent Authority vide its order dated

26th February, 2002 could not have dropped the proceedings without determining compensation or damages

under section 24(2) of the said Act. Merely because possession was delivered by the license that by itself was not sufficient to take away jurisdiction of the Competent Authority to decide claim for damages. In my opinion, the view of the Competent Authority was based on mitaken

reading of section 42. Even if possession is delivered by the licensor before initiation of the eviction proceedings till the Competent Authority will have jurisdiction to entertain and determine claim under section 24(2) of the said Act. In this view of the matter, the petition has no substance. The view taken in the

impugned order by the revisional authority is in consonance with the provisions of the said Act."

(Emphasis added)

9. Therefore, this Court upheld the power and jurisdiction of the

Competent Authority to pass an order of awarding the compensation as

contemplated under sub- section (2) of section 24 of the said Act. In fact,

this Court went to the extent of holding that in a given case where the

licensee hands over possession of the licensed premises after expiry of

the period of license, the competent authority has a jurisdiction to pass an

order under sub-section 2 of section 24 of the said Act. In the

circumstances, the first question will have to be answered in favour of the

applicant by holding that the competent authority has a jurisdiction to pass

an order directing the licensee to pay the damages under sub section (2)

of section 24 of the said Act.

10.

The next two questions formulated above will have to be

considered now together. Before dealing with the submissions, what is

held by this Court in paragraph 19 of the decision in the case of Fundacio

Privada Intervida (supra) will have to be noted which reads thus :-

"19. The shortage of housing during the Second World War resulted in the power of the landlords to evict tenants and their freedom to fix rent for their premises. Since the shortage has been persisting, the control is still continuing

and various statutes have been enacted by the States in India. The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as amended by the Maharashtra Rent Control Act, 1999 is one of such example. The statute empowers the State Government to appoint Courts and/or Competent Authority to decide disputes, such as fixation of

standard rent and eviction of tenants. Before making any order that prejudicially affects any person, the authority under the said Act is required to give that person reasonable opportunity of being heard. In or before him, he has to follow as far as may be, the practice and procedure of a Court including the recording of evidence which means as far as possible the provisions of the Code of Civil Procedure are required to be followed. He is empowered to award such costs to any party as he considers reasonable.

He has the powers of Civil Court under the Code of Civil Procedure when trying an application in respect of summoning and enforcing the attendance of any person

and examining him on oath, requiring discovery and production of documents, etc. The orders passed under

the said Act are executable, if passed by the Civil Court as a decree, and if passed by the Competent Authority, then that authority itself has been given the power to

execute even by using such force as may be necessary to comply with the order of eviction." (Emphasis added)

The conclusion of this Court was that the orders passed by the Competent

Authority are executable as if passed by a Civil Court. The argument of

the learned counsel for the respondent was that the only power conferred

under section 24 of the said Act on the Competent Authority is to pass an

order of eviction and there is no power vested to pass an order for

payment of damages. What is held by this Court in the aforesaid decision

is that an order passed by the competent authority is executable as if it

was a decree passed by the Civil Court. Thus, there is a pronouncement

of law by this Court that the orders of the competent authority are

executable.

11. Before proceeding to consider the decision in the case of Prakash

S. Jain (supra), certain decisions of this Court require attention of this

Court. In the case of Mohammad Salam Anamul Haque Vs. S.A.Azmi

and others [2001(1)-Mh.L.J.-249, the issue which arose for consideration

of this Court was whether the orders passed by the School Tribunal

established under the Maharashtra Employees of Private Schools

(Conditions of Service) Regulation Act, 1977 are executable. This Court

examined the scheme of the said Act of 1977. Under section 9 of the said

Act of 1977, a remedy of an appeal to the School Tribunal is provided to

an employee of a private school who has been dismissed or removed

from the employment. Section 10 thereof lays down that for the purposes

of admission, hearing and disposal of appeals, the Tribunal shall have the

same powers as are vested in an Appellate Court under the said Code.

The learned Judge of this Court also dealt with section 12 of the said Act

of 1977 which lays down that the decision of the Tribunal shall be final

and no suit, appeal or other legal proceeding shall lie in any Court in

respect of the matters decided by the Tribunal. This Court dealt with

section 13 of the said Act of 1977 which is a penal provision for penalizing

a person who fails to comply with the orders passed by the School

Tribunal. This Court considered section 10 of the said Act of 1977 which

conferred limited powers of the Appellate Court under the said Code on

the School Tribunal. After considering the law on the aspect, the learned

Single Judge of this Court recorded following conclusions :-

(i) When the Legislature expressly confers power, grant of that

statutory power carries with by necessary implication the authority to

make such grant effective;

(ii) Therefore, the Tribunal constituted under the said Act has all

powers necessary to enforce its order;

(iii) An order made by the School Tribunal is an order within the

meaning of the said Code;

(iv) a person who desires to execute an order of the School Tribunal

has to approach the Tribunal for execution and then it is the duty of the

Tribunal to either execute the order itself or if it is found necessary, to

transfer it for execution to Civil Court in accordance with the provisions of

the said Code.

12. The same issue was considered by a Full Bench of this Court in the

case of St.Ulai High School and another Vs. Devendraprasad

Jagannath Singh and another [2007(1)-Mh.L.J.-597. The Full Bench

had an occasion to consider the scope of powers conferred on School

Tribunal under the said Act of 1977. This Court considered the decision of

learned Single Judge in the case of Mohammad Salam Anamul Haque

(supra). Paragraph 12 of the decision of the Full Bench specifically deals

with the powers to enforce the orders of the School Tribunal. After

considering the law on the aspect, the Full Bench approved the decision

in the case of Mohammad (supra) holding that the order passed by the

Tribunal would satisfy the description of that expression in section 2(14) of

the said Code. The Full Bench quoted following portion of the decision in

the case of Mohammed (supra) with approval. What is approved by the

Full Bench in the said decision reads thus:-

"Therefore, when the School Tribunal makes an order for reinstatement and for payment of back wages, the appellant in whose favour such an order is made can definitely approach the School Tribunal, which made the order for execution of that order in the same manner in which the decree under the provisions of the Civil Procedure Code is to be executed. In such situation either the tribunal may itself execute the decree or it may transfer the decree for execution to another Court in accordance with the provisions contained in the Civil Procedure Code.

It is thus clear to my mind that an order made by the School Tribunal is an order which is executable under the

provisions of the Civil Procedure Code."

Thus, the law laid down by the Full Bench of this Court is that the School

Tribunal which possesses certain powers under section 107 of the said

Code can pass an order which can be termed as an order within meaning

of sub section 2 of section 14 of the said Code.

13. Now, turning back to the provisions of the said Act, Chapter-VIII

contains the procedure which applies to section 24 of the said Act. Under

sub- section (2) of section 40 it is provided that a person can be appointed

as a Competent Authority who has held the office which is not lower in

rank than that of a Deputy Collector or who is holding or has held the post

of a Civil Judge, Junior Division or who has been an advocate for not less

than five years.

14. Under section 42 of the said Act it is provided that an application

under section 24 is required to be signed and verified in the manner

provided under Order VI of the said Code as if it were a plaint. Section 43

lays down the actual procedure. Sub- sections (4) and (5) of section 43

are relevant which read thus :-

"43. Special procedure for disposal of applications.-

           (1)    ...    ...    ...

           (2)    ...    ...    ...

           (3)    ...    ...    ...







           (4)    (a)    The tenant or licensee on whom the summons

is duly served in the ordinary or by registered post in the manner laid down in sub- section (3) shall not contest the prayer for eviction from the premises, unless within thirty

days of the service of summons on him as aforesaid, he files an affidavit stating grounds on which he seeks to contest the application for eviction and obtains leave from the Competent Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or

his obtaining such leave, the Statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or the licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground aforesaid.

(b) The Competent Authority shall give to the tenant or

licensee leave to contest the application if the affidavit filed by the tenant or licensee discloses such facts as would disentitle the landlord from obtaining an order for the

recovery of possession of the premises on the ground specified in section 22 or 23 or 24.

(c) Where leave is granted to the tenant or licensee to contest the application, the Competent Authority shall

commence the hearing of the application as early as practicable and shall, as far as possible, proceed with the

hearing from day to day, and decide the same, as far as may be, within six months of the order granting of such leave to contest the application.

(5) The Competent Authority shall, while holding an

inquiry in a proceeding to which this chapter applies, follow the practice and procedure of a Court of Small Causes, including the recording of evidence."

What is important is sub- section (5) which provides that the Competent

Authority shall, while holding an inquiry in a proceeding under section 24,

follow the practice and procedure of a Court of Small Causes including

recording of evidence. Thus, the proceeding has to be initiated by an

application which is required to be signed and verified as if it is a plaint

and while holding an inquiry, a procedure which is followed by the Court of

Small Causes while trying a suit has to be followed. Thus, the law

contemplates trial of the application under section 24 as if it is a suit tried

by a Court of Small Causes. Though there is no appeal provided against

an order of recovery of possession, under section 44 a revision

application is provided. There are other sections forming part of the said

Chapter which provide that the competent authority shall be deemed to be

a Civil Court for the purposes of sections 345 and 346 of the Code of

Criminal Procedure, 1973.

15. There are two submissions made by the learned counsel for the

respondent. The first submission is based on the decision of the Apex

Court in the case of Prakash Jain (supra). The second submission is

based on an order dated 23rd October 2008 passed by this Court in

Notice of Motion No.193 of 2006 in Notice No.N/255/2006. The said

Notice was taken out by the applicant invoking section 9(2) of the

Presidency Towns Insolvency Act, 1909 (hereinafter referred to as "the

said Act of 1909") on the ground that the order of the Competent Authority

is a decree within the meaning of section 9(2) of the said Act of 1909.

16. It will be necessary to consider the decision of the Apex Court in

the case of Prakash S. Jain (supra). The issue which arose for

consideration of the Apex Court was whether the Competent Authority has

power to condone the delay in applying for leave to defend contemplated

by sub section 4(A) of section 43 of the said Act. What was considered by

the Apex Court was a question whether the Competent Authority was a

Court for the purposes of applicability of section 5 of Limitation Act, 1963.

No other issues such as nature of the order passed by the Competent

Authority and whether an order of the Competent Authority is executable

arose before the Apex Court. Heavy reliance has been placed by the

learned counsel for the respondent on what is held in paragraph 12 of the

said decision which read thus :-

"12. The provisions of Chapter VIII stand apart, distinctly and divorced from the rest of the Act except to the extent indicated therein itself and for that matter has been given

overriding effect over any other provisions in the very Act or any other law for the time being in force, though for

enforcement of other remedies or even similar remedies under the provisions other than Chapter VIII, altogether different procedure has been provided for. It is

unnecessary to once over again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority constituted thereunder is not `Court' and the mere fact that such authority is deemed to

be Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate

for the purpose of either making the provisions of the Limitation Act, 1963 attracted to proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act. It is by now well settled by innumerable judgements of various Courts

including this Court, that when a statute enacts that anything shall be deemed to be some other thing the only meaning possible is that whereas that the said thing is not in reality that something, the legislative enactment requires it to be treated as if it is so. Similarly, though full effect must be given to the legal fiction, it should not be extended

beyond the purpose for which the fiction has been created and all the more when the deeming clause itself confines as in the present case, the creation of fiction for only a limited purpose as indicated therein. Consequently, under the very scheme of provisions enacted in Chapter VIII of the Act and the avowed legislative purpose obviously made known patently by those very provisions, the Competent Authority can by no means be said to be Court for any and every purpose and that too for availing of or exercising powers under the Limitation Act, 1963."

In earlier part of paragraph 12, the Apex Court has observed that mere

fact that such authority is deemed to be a Court only for a limited and

specific purpose cannot make it a Court for all or any other purposes. In

the last part of paragraph 12 the Apex Court observed that the Competent

Authority can by no means be said to be a Court for any or every purpose

and that too for availing of exercising the powers under the Limitation Act,

1963. It must be borne in mind that under the said Act of 1999, a special

procedure has been created for evicting a licensee. An agreement for

leave and license relating to a license granted for residential use has been

made compulsorily registrable under section 55(1) of the said Act. Even

under the Bombay Rents, Hotel and Lodging House Rates Control Act,

1947, in the year 1987, by an amendment, section 13(A)(2) was

introduced which was pari materia with section 24 of the said Act. The

Legislature had taken note of scarcity of accommodation in the

metropolitan as well as in the bigger cities in the State of Maharashtra.

The intention for providing a speedy remedy of acquiring possession of

licensed premises was to encourage the landlords to give the premises on

leave and license.

17. As far as decision of the Apex Court in the case of Prakash S. Jain

(supra) is concerned, the question which was examined by the Apex Court

was whether a Competent Authority is a Civil Court for applicability of

section 5 of the said Act of 1963. The issue whether an order passed by

the Competent Authority is executable or not did not arise for

consideration of the Apex Court. The learned counsel for the respondent

contends that the ratio of the decision of the Apex Court is that for no

purpose except those expressly specified in Chapter-VIII, The Competent

Authority is a Civil Court. Therefore, it will be necessary to ascertain as to

what is the ratio of the said decision. The legal position as regards law of

precedents is well settled. For ready reference , a decision of the Apex

Court in the case of State of Andhra Pradesh Vs. M.Radha Krishna

Murthy [(2009)5-SCC-117] will have to be considered. Paragraphs 17

and 18 of the said decision are relevant which read thus :-

17.

"15. ... Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.

Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been

stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a

statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not inter- pret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving

Dock Co. Ltd. v. Horton (AC at p. 761), Lord Mac Dermot ob- served:

'The matter cannot, of course, be settled merely by treating the ipsissima verba of

Willes, J., as though they were part of an Act of Parliament and applying the rules of inter- pretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most dis- tinguished Judge....'

16. In Home Office v. Dorset Yacht Co. Ltd. Lord Reid said (AC at p. 1027 A-B) 'Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require quali- fication in new circumstances.' Megarry, J. in Shepherd

Homes Ltd. v. Sandham (No. 2) observed: (AC at p. 1069 H) '... One must not, of course, construe even a reserved

judgment of even Russell, L.J. as if it were an Act of Parlia- ment....' And, in British Railways Board v. Herrington Lord Morris said: (AC p. 902 D)

'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be re-

membered that judicial utterances made in the setting of the facts of a particular case.'

17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two

cases. Disposal of cases by blindly placing reliance on a de- cision is not proper.

18. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

'Each case depends on its own facts and a close similarity between one case and an- other is not enough because even a single significant detail may alter the entire as-

pect, in deciding such cases, one should avoid the temptation to decide cases (as

said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to anoth-

er case is not at all decisive.'

* * *

Precedent should be followed only so far as it marks the path

of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of ob-

structions which could impede it." (Emphasis added)

Thus, what has been held by the Apex Court is that the observations of

the Court are neither to be read as Euclid's theorem nor as provisions of

the statute and that too taken out of their context. As stated earlier, the

Apex Court in the case of Prakash H. Jain (supra) was never called upon

to decide the issues as regards nature of the order passed by the

Competent Authority and whether the order of the Competent Authority

will fall within four corners of section 2(14) of the said Code. The ratio of

the said decision is that the Competent Authority is not a Court insofar as

the applicability of provision of section 5 of the Limitation Act, 1963 to sub-

section 4A of section 43 is concerned. Therefore, the said decision

cannot be read as laying down ratio that the order of the Competent

Authority passed under section 24 is not an order within the meaning of

the said Code. As stated earlier, the Competent Authority has jurisdiction

to pass an order granting damages in terms of section 24(2). There is no

reason why the ratio of the decision of this Court in the case of

Mohammad (supra) approved in the case of St.Ulai (supra) should not

apply to an order of Competent Authority under the said Act.

18. Now turning to the decision of this Court dated 23rd October 2008

by which the insolvency notice taken out by the applicant was held as not

maintainable, it must be noted here that the issue before the learned

Single Judge was whether an order passed by the Competent Authority is

a decree for the purposes of section 9 of the Presidency Towns

Insolvency Act, 1909. In the context of the question whether the order

becomes a decree or order within the meaning of section 9(2) of the said

Act of 1909, this Court examined the case as is apparent from the fact

that reliance was placed by this Court on the decision of Apex Court in the

case of Paramjeet Singh Patheja Vs. ICDS Ltd. [JT-2006-(10)-SC-4]. In

the said decision what was held by the Apex Court in paragraphs 17 and

41 read thus :-

17. We are of the view that the Presidency Towns In- solvency Act, 1909 is a statute weighed down with the grave consequence of "civil death" for a person sought to be adjudged an insolvent and therefore the Act has

to be construed strictly.

41. Issuance of a notice under the Insolvency Act is fraught with serious consequences: it is intended to bring about a drastic change in the status of the person against whom a notice is issued viz. to declare him an insolvent with all the

attendant disabilities. Therefore, firstly, such a notice was intended to be issued only after a regularly consti-

tuted court, a component of the judicial organ estab- lished for the dispensation of justice, has passed a de- cree or order for the payment of money. Secondly, a notice under the Insolvency Act is not a mode of enfor-

cing a debt; enforcement is done by taking steps for execution available under CPC for realising monies.

(Emphasis added)

The Apex Court held that while construing the provisions of the said Act of

1909 the Court has to consider the grave consequence of a civil death of

a person sought to be adjudged as an insolvent. The Apex Court held

that the provisions of the said Act of 1909 are, therefore, required to be

construed strictly. The Apex Court was examining the question whether

an award of an arbitrator was a decree or an order within the meaning of

section 9(2) of the said Act of 1909. Thus, while passing the order dated

23rd October 2008 what is held by this Court is that the order of the

Competent Authority is not a decree for the purposes of section 9 of the

said Act of 1909 as the provisions of the said statute call for strict

interpretation. Therefore, the ratio of the said decision is that the order

was not covered by section 9(2) of the said Act of 1909. Therefore, even

the said decision will not help the respondent.

19. At this juncture a useful reference will have to be made to the

decision of the Apex Court in the case of Brijnandan Sinha Vs. Jyoti

Narain (AIR-1956-SC-66). The Apex Court considered the essential

ingredients necessary to constitute a Court. Paragraph 18 of the decision

of the Apex Court reads thus :-

"18. It is clear, therefore, that in order to constitute a

Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal,

power to give a decision or a definitive judgement which has finality and authoritativeness which are the essential tests of a judicial pronouncement."

(Emphasis added)

20. Now turning back to the provisions of the said Act, the Competent

Authority is conferred with a jurisdiction to decide whether the license has

expired. As pointed out earlier, for that purpose the proceedings are

required to be commenced by an application which is required to be

signed and verified as a plaint. The procedure which is followed by the

Court of Small Causes trying a suit has to be followed while deciding an

application under section 24. Section 47 of the said Act reads thus :-

"47. Bar of jurisdiction.- Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Competent Authority or the State Government or an officer authorised by it is empowered by or under this Act, to decide, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance

of any power so conferred on the Competent Authority or the State Government or such Officer."

21. Section 47 shows that exclusive jurisdiction has been conferred on

the competent authority to adjudicate upon the claim of a licensor to

recover possession of the licensed premises on expiry of period of license

either by efflux of time or by revocation thereof. Therefore, insofar as

jurisdiction of the Competent Authority to pass final order of eviction and

payment of compensation is concerned, the Competent Authority satisfies

the tests laid down by Apex Court in the case of Brijnandan Sinha (supra).

In the circumstances the only conclusion which can be drawn is that the

final order passed by the competent authority under sub-section (1) read

with sub-section (2) of section 24 is an order within the meaning of section

2(14) of the said Code. By virtue of section 36 of the said Code, the said

order can be executed as if it is a decree. Considering the law laid down

by the Full Bench of this Court in the case of St. Ulai (supra), the

Competent Authority can entertain an application for execution of the

order in the same manner in which a decree under the provisions of the

said Code is to be executed. The competent authority may itself execute

the order or may transfer it for execution to a competent Civil Court in

accordance with section 39 of the said Code.

22. Thus, the final conclusion is that the objection raised to the