Bombay High Court
Anand Devrao Shinde Died Through Lrs ... vs The Chief Officer Municipal Council ... on 10 June, 2024
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5373 OF 2024
Ashok Murlidhar Utikar
VERSUS
The Chief Officer Municipal Council
WITH
WRIT PETITION NO. 5385 OF 2024
Haribhau Shankarrao Toke Died Thorugh Lr Bhausaheb Haribhau
Toke
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5389 OF 2024
Mohammad Bin Syed Chaus Died Through Lrs Shabana Mohd Bin
Kileb And Others
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5390 OF 2024
Mohd Azhar Mohd Idris
VERSUS
The Chief Office Municipal Council Pathri
WITH
WRIT PETITION NO. 5393 OF 2024
Chandrakala Shivaji Chinchane
VERSUS
The Chief Officer Municipal Council Pathri
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WITH
WRIT PETITION NO. 5384 OF 2024
Namdeo Bapurao Chinchane
VERSUS
The Chief Officer Municipal Council
WITH
WRIT PETITION NO. 5386 OF 2024
Shivaji Bapurao Chinchane
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5383 OF 2024
Mohd Yunus Halimji Ansari
VERSUS
The Chief Officer Municipal Council
WITH
WRIT PETITION NO. 5382 OF 2024
Laxman Pralhad Khatri
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5392 OF 2024
Hanuman Ravan Ambegaonkar
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5374 OF 2024
Anand Devrao Shinde Died Through Lrs Pravin Anantrao Shinde
VERSUS
The Chief Officer Municipal Council Pathri
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WITH
WRIT PETITION NO. 5379 OF 2024
Mohd Babar Mohd Idris
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5381 OF 2024
Mohd Akbar Abdul Gaffarr Bagwan
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5391 OF 2024
Masoom Shaikh Amin
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5377 OF 2024
Babulal Ramgopal Mantri Died Through Lrs Ramsukh Babulal
Mantri
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5378 OF 2024
Shaikh Rasool Shaikh Ashraf
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5376 OF 2024
Ram Pralhad Khatri
VERSUS
The Chief Officer Municipal Council Pathri
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WITH
WRIT PETITION NO. 5380 OF 2024
Murlidhar Ramnath Mundada Died Through Lrs Sanjaykumar
Ratanlal Mundada
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5387 OF 2024
Subhash Munjaji Bedre
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5388 OF 2024
Badroddin Mohammad Khajamiya
VERSUS
The Chief Officer Municipal Council Pathri
WITH
WRIT PETITION NO. 5375 OF 2024
Vithal Kondiba Kawale Died Through Lrs Rukhmini Vithal Kawale
VERSUS
The Chief Officer Municipal Council Pathri
Mr. M. B. Kolpe, Advocate holding for Mr. V. B. Deshmukh, Advocate
for the Petitioners.
Mr. M.P. Tripathi, Advocate for the Respondent.
CORAM : R. M. JOSHI, J.
RESERVED ON: 10th JUNE, 2024
PRONOUNCED ON : 1st JULY, 2024.
PER COURT :
1. These Petitions involve issue for determination as to
whether a District Judge who has put in less than 10 years of judicial
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service can entertain and decide appeal under Section 7 of Bombay
Government Premises (Eviction) Act, 1955 (for short 'the Act').
2. Petitioners filed appeals under Section 7 of the Act
against order passed by Competent Authority directing eviction of
about 30 persons, in a proceedings filed by Municipal Council,
Pathri. Principal District Judge, Parbhani, assigned those appeals to
District Judge - 4 (Now District Judge -3) for its decision. During the
pendency of these appeals an application was moved before the
Principal District Judge, Parbhani, for transfer under Section 24 of
the Code of Civil Procedure (for short 'CPC') of these appeals pending
on the file of District Judge - 3 to the Court of Principal District
Judge, Parbhani, or to any Judicial Officer with 10 years standing.
Since the said applications were rejected by order dated 06.03.2024,
these Petitions.
3. Learned counsel for the Petitioners submits that the
learned Principal District Judge, Parbhani fell in error in rejecting the
applications for transfer in ignorance of the provisions of Act and that
the Appellate Authority being persona designata, only the Principal
District Judge of the District or other Judicial Officer of not less than
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10 years of standing could entertain such appeal. To support his
submission, he drew attention of the Court to the provisions of
Section 7 of the Act which according to him, indicate that the District
Judge who is renamed as Principal District Judge, only could
entertain appeals even though not having 10 years standing but
other District Judges can-not. It is further submitted that admittedly
District Judge - 3 who is seized with these appeals has not completed
10 years of judicial services and therefore, he has no jurisdiction to
entertain appeals.
4. Learned counsel for the Respondent opposed the said
submission by contending that any District Judge would be
competent to decide these appeals under Section 7 of the Act as
Appellate Authority, in absence of any amendment to the said
provision. To support his submission, he placed reliance on the
judgment of Delhi High Court in case of Young Men S. Tennis Club
versus NDMC, 2022 SCC OnLine Del 3341.
5. There is no dispute about the fact that the learned
District Judge - 3, Parbhani does not have 10 years of standing as a
Judicial Officer. Petitioners, therefore, relying upon Section 7 of the
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Act sought to contend that District Judge - 3 would be a "Judicial
Officer" as contemplated by second part and since he has less than
10 years standing, he would not have jurisdiction to entertain such
appeals.
6. For the purpose of deciding the controversy involved in
these Petitions, it would be necessary to take into consideration the
relevant provisions of the Act as well as the provisions of
Maharashtra Civil Court Act (for short 'Civil Court Act').
Section 7 of the Act reads thus :
7. (1) An appeal shall lie from every order of the
competent authority, made in respect of any Government
premises, under section 4 or section 5 to an appellate
officer who shall be the District Judge of the district in
which the Government premises are situate, or such
other judicial officer in that district, being, a judicial
officer of not less than ten years' standing, as the District
Judge may designate in this behalf.
(2) xxx
(3) xxx
(4) xxx
(5) xxx
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7. According to this provision, an appeal would lie from
every order of the competent authority under Sections 4 or 5 to the
Appellate Officer who shall be the District Judge of the District or
such other Judicial Officer in that District, being a Judicial Officer of
not less than 10 years standing, who may be designated by the
District Judge in this behalf.
8. In order to ascertain the powers of District Judges and
other Judges in the State of Maharashtra, it would be relevant to take
into consideration the provisions of Civil Courts Act. Section 5 of the
said Act states that there shall be in each District a District Court
presided over by a Judge to be called as District Judge. There is
provision of appointment of Joint Judge under Section 12 and
Assistant Judge under Section 14 of Civil Courts Act. By virtue of
amendment to these provisions in 1984, nomenclature of these posts
is changed to 'Joint District Judge' and 'Additional District Judge',
respectively. Thus, Section 12 permits the State Government to
appoint a Joint District Judge who shall be invested with powers co-
extensive and concurrent jurisdiction with the District Judge except
that he shall not keep a file of civil suit and shall transact civil
business only as he may receive from the District Judge. This
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indicates that under Civil Courts Act, apart from District Judge,
there existed posts of Joint District Judge and Additional District
Judge. According to Section 14, one or more Additional District
Judges can be appointed in a District. Section 19 of the Act
empowers the State Government by notification in the Official Gazette
to invest all or any power of a District Judge within a particular part
of a District. Thus, Civil Courts Act not only provides for
appointment of District Judge but Joint and Additional District
Judges as well and they hold co-extensive powers and concurrent
jurisdiction with the District Judge.
9. After acceptance of recommendations of Justice Shetty
Commission, there is merger of posts in cadre of District Judge in the
District Judiciary. Thereafter, the nomenclature of District Judge has
been changed to Principal District Judge. Posts of Joint District
Judge as well as Additional District Judges are replaced by the
District Judges. Though Maharashtra Civil Services Rules, 2008 are
amended in exercise of powers conferred by Articles 233 and 234 and
proviso to Article 309 of the Constitution of India read with Article
235, State of Maharashtra in consultation with High Court whereby
(i) District Judges (ii) Additional District Judges (iii) Principal Judge,
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Additional Principal Judge and Judge of City Civil Court and
Sessions Court Mumbai are redesignated as 'District Judges'.
Surprisingly, though such change is effected, no amendment to that
extent is yet effected by the appropriate Government to Civil Courts
Act. Similarly no amendment is effected in Section 7 of the Act. At
present, District Judges exercise all judicial powers exercised by
Principal District Judge except control and inspection over Courts in
District and power to transfer/assign proceedings to Courts/Judges.
Now the question arises as to when the posts of Joint District Judge
and Additional District Judges were conferred similar powers as
exercisable by the Principal District Judge except for administration
and power to withdraw and assign matters to the other Courts, why
same powers/jurisdiction cannot be exercised by District Judges.
The notifications issued by the Government clarify this situation.
One of such notifications issued by the Law and Judicial Department
with regard to the appointment of District Judges is reproduced
below :-
NOTIFICATION
Law and Judiciary Department,
Madam Kama Road,
Hutatma Rajguru Chowk,
Mantralaya, Mumbai 400 032,
Dated the 9th July, 2012.
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No CRC 1309/170/(30)/XII. - In exercise of
the powers conferred by section 19 of the Bombay Civil
Courts Act, 1869 (Act No. XIV of 1869), the Government
of Maharashtra hereby directs that, with effect from the
22th day of July, 2012. -
(a) there shall be a Court of District Judge at Vaijapur
in Aurangabad District and the said Court shall be
presided over by the District Judge - 1.
(b) the local limits of the ordinary jurisdiction of the
said court shall be co-extensive with the existing
jurisdiction of Court of Civil Judge, Senior Division,
Vaijapur, Civil Judge, Junior Division, Vaijapur and Civil
Judge, Junior Division, Vaijapur and Gangapur in
Aurangabad District.
(c) all the powers of the Principal District Judge,
Aurangabad shall vest in the said District Judge -1,
except those vested in the Principal District Judge,
under section 9 of the said Act and his power of assign
to District Judge, at Aurangabad of withdraw unto
himself or to assign to another Court of competent
jurisdiction, such matters as he thinks fit.
By order and in the name of the
Governor of Maharashtra
(xxx)
Solicitor (M.L.) -cum-Joint Secretary"
10. A conjoint reading of provisions of Section 12, 14 and 19
of the Civil Court Act coupled with the Notification issued under
Section 19 of the Act, unquestionably shows that judicial powers and
jurisdiction exercised by the District Judge (now Principal District
Judge) vest with District Judges except for the control and inspection
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of Courts and power to transfer proceedings from one Court to
another. No exception therefore can be made thereto to enable him to
act as Appellate Officer under Section 7 of the Act, for want of specific
prohibition/exception made to by legislature.
11. Basic rule of interpretation/construction of any statute is
to avoid absurd results. If it is interpreted that the term "Judicial
Officer" as contemplated in Section 7 of the Act covers District Judge
and therefore a District Judge, who has not put in 10 years of judicial
service, then he would not have authority/power to entertain said
appeal. In a given case a District Judge who has completed 9 years
of Judicial service would not be allowed to entertain the appeal
whereas even a Civil Judge Junior Division who has completed 10
years of service could do so. This would lead to a absurd situation as
the District Judge who is appellate authority over the orders passed
by the Civil Judge Junior Division and Civil Judge Senior Division (to
the extent of pecuniary jurisdiction of the District Court) would not
be permitted to entertain appeal under Section 7 of the Act unless he
has 10 years judicial standing. In considered view of this Court,
even while interpreting the provisions of Section 7 to the extent of the
term 'Judicial Officer', no interpretation would be permissible which
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would create such absurd situation. Having regard to the nature and
scope of the proceedings as contemplated by Section 7 of the Act and
powers exercised by District Judges at par with Principal District
Judge, term 'Judicial Officer' must be held to be any Judicial Officer
other than then Joint and Additional District Judge and present
District Judges. Thus, for a District Judge, condition of 10 years of
judicial service would not apply to enable him to act as appellate
officer under Section 7 of Act. It is, therefore, held that District
Judge 3, Parbhani has authority/power to entertain and decide
appeals under Section 7 of the Act. In the result, the impugned order
passed by the Principal District Judge, Parbhani does not deserve
any interference.
12. Learned counsel for the Respondents submits that the
Petitioner never raised objection to the proceedings before District
Judge -3 for substantial period and the said objection is now raised
with the intention to protract the said proceedings. It is submitted
that having regard to the nature of the proceedings it would be in the
interest of justice that the concerned Court directs to decide the said
proceedings expeditiously.
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13. It is not in dispute that these proceedings were pending
before the same Judicial Officer for 2 years or so and that learned
Judge has granted interim protection to the Petitioners herein. It is
only when these appeals were due for hearing, objection to the
authority of Judge is raised. This Court, therefore, finds substance
in the contention of Respondent that such objection is raised in order
to delay the proceedings. Having regard to the nature and scope of
the proceedings, it is possible for the Court to decide the same
expeditiously. In such circumstances, learned District Judge - 3 to
decide proceedings within a period of six (06) months from date of
passing of this order. Registry to communicate this order to the
learned Judge for its compliance.
14. Petitions stand dismissed in above terms.
( R. M. JOSHI)
Judge
dyb
