w w w . L a w y e r S e r v i c e s . i n



Faisal v/s Vikas Chacko


Company & Directors' Information:- T M CHACKO AND CO PVT LTD [Active] CIN = U01119KL1957PTC001726

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- VIKAS PVT LTD [Strike Off] CIN = U99999MH1949PTC007334

Company & Directors' Information:- THE VIKAS LIMITED [Strike Off] CIN = U24231UP1934PLC000592

    O.P.(RC) No. 2 of 2019 & Connected Cases

    Decided On, 12 July 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A. HARIPRASAD & THE HONOURABLE MRS. JUSTICE V. SHIRCY

    For the Petitioner: B. Premnath, Mani Govinds Marar, S. Nirmal, Veena Hari, Jacob P.Alex, P. Manu Sankar, Joseph P. Alex, V.V. Surender, C.S. Manilal, S. Nidheesh, Babu Cherukara, C.T. Mathew, P.A. Salim, K.K. Alias, Rosamma Mathew, C.M. Mohammed Iquabal, Advocates. For the Respondent as Amicus Curiae: M. Shajna, Government Pleader, Nirmal V. Nair, P.K. Muraleedharan, K.M. Firoz, P.A. Harish, Advocates.



Judgment Text


A. Hariprasad, J.

1. Common challenge in the captioned cases is against the ratio in Ratheesh v. A.M.Chacko and another (2018 (4) KLT Online 2055 = 2018(5) KHC 35) rendered by a Division Bench of this Court, wherein it is held that the Limitation Act, 1963 (in short 'the Limitation Act') is not applicable to the proceedings before the Rent Control Court, constituted under Section 3 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short 'the Act').

2. We heard the learned counsel, who challenge the ratio in Ratheesh's case (supra) as well as those learned counsel, who support the ratio.

3. Before going into various legal issues raised, we shall first consider the facts in Ratheesh's case. First respondent in Ratheesh's case filed an eviction petition before the Rent Control Court, seeking eviction of the second respondent from three rooms. The petitioner before this Court is the second respondent, who suffered an ex parte order of eviction at the hands of the Rent Control Court. He moved an application to get the ex parte order set aside as per R.13(3) of the Kerala Buildings (Lease and Rent Control) Rules, 1979 (in short 'the Rules'). The application should have been filed within 15 days from the date of order. In Ratheesh's case, the application for setting aside the ex parte order was filed beyond the prescribed time and therefore an application for condonation of delay was also filed under Section 5 of the Limitation Act. It was contended before the Rent Control Court that Section 5 of the Limitation Act could not be applied in a proceeding before the Rent Control Court. That contention was accepted in the light of the ratio in M.P Steel Corporation v. Commissioner of Central Excise (2015 (2) KLT 996 (SC) = (2015) 7 SCC 58). In the appellate court also, the second respondent did not succeed. Hence, he approached this Court with a Rent Control Revision. Here, ratio in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (1995 (2) KLT 205 (SC) = (1995) 5 SCC 5) was considered. In that case, the Apex Court held that under Section 18 of the Act, the appellate authority, being a District Judge and the Act being a special law by application of Section 29(2) of the Limitation Act, all the provisions in Sections 4 to 24 of the Limitation Act would apply to a proceedings before the Appellate Authority. In that context, in Mukri Gopalan's case it was held that Section 5 of the Limitation Act is applicable to proceedings before the appellate authority under the Act. However, no pronouncement was made therein regarding the power of the Rent Control Court to apply Section 5 of the Limitation Act to proceedings before it.

4. In Ratheesh's case, this Court taking note of the ratio in M.P. Steel Corporation's case and Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department (2008 (2) KLT OnLine 1103 (SC) = (2008) 7 SCC 169), entered a finding that the Rent Control Court is powerless to apply Section 5 of the Limitation Act to extend the prescribed time.

5. Learned counsel seriously challenged this finding on the following grounds : Firstly, it is contended that the Rent Control Court is a court, although it may be having only limited jurisdiction. Still, it is a court and therefore the Limitation Act in its entirety is applicable, of course, subject to Section 29(2) of the Limitation Act. Learned counsel placed reliance on Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi (1950 KLT Online 802 (SC) = AIR 1950 SC 188), a Constitution Bench decision, laying down the test to distinguish between a judicial forum and a quasi-judicial or administrative body. In paragraph 56, the following proposition is laid down:

"56. The other fundamental test which distinguishes a judicial from a quasi-judicial or administrative body is that the former decides controversies according to law, while the latter is not bound strictly to follow the law for its decision. The investigation of facts on evidence adduced by the parties may be a common feature in both judicial and quasi-judicial tribunals, but the difference between the two lies in the fact that in a judicial proceeding the Judge has got to apply to the facts found, the law of the land which is fixed and uniform. The quasi judicial tribunal on the other hand gives its decision on the difference between the parties not in accordance with fixed rules of law but on principles of administrative policy or convenience or what appears to be just and proper in the circumstances of a particular case. In other words, the process employed by an administrative tribunal in coming to its decision is not what is known as 'judicial process'. See Ribson's Justice and Administrative Law, p. 74. Sir Maurice Gwyer in his deposition before the Committee on Minister's Powers appointed by the English Parliament in 1929 stated that "a clear distinction is to be drown between judicial and quasi-judicial powers." The 'judicial power' was defined by the witness as a power to decide a question of legal right in a dispute between parties involving either a finding of fact or the application of a fixed rule or principle of law or involving both. "The quasi-judicial power", he defined as meaning "the power of giving decisions on questions of difference of an administrative and not justiciable character which cannot be determined by reference to any fixed law or principle of law but are matters of administrative discretion and judgment. "Vide Committees of Minister's Powers, Minutes of Evd., Vol. II pages 15-16 and also Robson's Justice and Administrative Law, p. 319." In Cooper v. Wilson, (1937) 2 K. B. 309 : (106 L. J. K. B. 728), Scott L. J. quoted with approval and adopted as the basis of his judgment the following passage for the report of the above committee:

"A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2) but does not necessarily involve (3) and never involves. (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister's free choice."

In our opinion these statements correctly bring out the distinction between a judicial tribunal and an administrative body which exercises quasi-judicial functions. These being the essential features which distinguish the two classes of tribunals, we would have to ascertain with reference to the provisions of the Industrial Disputes Act, which class or category of tribunals an Industrial Tribunal comes under."

6. In the same decision, In paragraph 23, following observations are made :

"23. As pointed out in Halsbury's Laws of England, the word "Court" originally meant the King's Palace but subsequently acquired the meaning of, (1) a place where justice was administers and (2) the person or persons who administer it. in the Evidence Act, it is defined as including all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This definition is by no means exhaustive and has been framed only for the purposes of the Act. There can be no doubt that to be a Court, the person or persons who constitute it must be entrusted with judicial functions, that is, of deciding litigated questions according to law. However, by agreement between parties arbitrators may be called upon to exercise judicial powers and to decide a dispute according to law but that would not make the arbitrators a Court. It appears to me that before a person or persons can be said to constitute a Court, it must be held that they derive their powers from the State and are exercising the judicial powers of the State. In R.v. London Country Council (1931) 2 K.B. 215 : (100 L.J. K.B. 760), Savilla L.J. gave the following meaning to the word "Court" or "judicial authority"

"It is not necessary that it should be a Court in the sense that this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rightly after hearing evidence and application."

As pointed out in picturesque language by Lord Sankey L. C. in Shell Cc. of Australia v. Federal Commissioner of Taxation, (1931) A.C. 275 : (100 LJ P.C. 55), there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. It seems to me that such tribunals though they are not full-fledged Courts, yet exercise quasi-judicial functions are within the ambit of the word "tribunal" in Article 136 of the Constitution. It was pointed out in the above case that a tribunal is not necessarily a Court in this strict sense because it gives a final decision, nor because it hears witnesses on oath, nor because two or more contending parties appear before it between whom it has to decide, not because it gives decisions which affect the rights of subjects nor because there is an appeal to a Court, nor because it is a body to which a matter is referred by another body. The intention of the Constitution by the use of the word "tribunal" in the article seems to have been to include within the scope of Article 136 tribunals adorned with similar trappings as Court but strictly not coming within that definition. Various definitions of the pharse "Judicial power" have been given from time to time. The best definition of it on high authority is the one given by Griffith C.J. in Huddari Parker and Co. v. Moorached, (1909) 8 C.L.R. 330 at p. 357, wherein it is defined as follows :

"The words "Judicial power'as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between it subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.""

7. Another decision relied on by the learned counsel is Brajnandan Sinha v. Jyoti Narain (AIR 1956 SC 66), which actually followed the principle in Bharat Bank Ltd. 's case.

8. On the basis of the above decisions, it is argued that by no stretch of reasoning, it can be held that Rent Control Court is either a Tribunal or persona designata. In a recent decision by a three Judge bench of the Supreme Court in Life Insurance Corporation of India v. Nandini J. Shah and others (2018 (2) KLT SN 2 (C.No.4) SC = 2018 (2) KLT OnLine 2004 (SC)=AIR 2018 SC 1197), the court examined the power of District Judge functioning as Appellate Officer under Section 9 of the Public Premises (Eviction of Unauthroised Occupants) Act 1971. The following observations in paragraphs 30, 39, 40 and 41 are quoted hereunder:

"30. Sub-section (1) of Section 9 is the core provision to be kept in mind for answering the point in issue. It postulates that an appeal shall lie from every order of the estate Officer, passed under the Act, to an Appellate Officer. As to who shall be the Appellate Officer, has also been specified in the same provision. It predicates the District Judge of the district in which the public premises are situated or such other judicial officer in that district of not less than 10 years standing as the District Judge to be designated for that purpose. The first part of the provision does suggest that the appeal shall lie to an Appellate Officer, however, it does not follow there from that the Appellate Officer is persona designata. Something more is required to hold so. Had it been a case of designating a person by name as an Appellate Officer, the concomitant would be entirely different. However, when the Appellate Officer is either the District Judge of the district or any another judicial officer in that district possessing necessary qualification who could be designated by the District Judge, the question of such investiture of power of an appellate authority in the District Judge or Designated Judge would by no standards acquire the colour or for that matter trappings of persona designata. In the first place, the power to be exercised by the Appellate Officer in terms of Section 9 is a judicial power of the State which is quite distinct from the executive power of the State. Secondly, the District Judge or designated judicial officer exercises judicial authority within his jurisdiction. Thirdly, as the Act predicates the Appellate Officer is to be a District Judge or judicial officer, it is indicative of the fact of a pre-existing authority exercising judicial power of the State. Fourthly, District Judge is the creature of Section 5 of the Maharashtra Civil Courts Act, 1869, who presides over a District Court invariably consisting of more than one Judge in the concerned district. The District Court exercises original and appellate jurisdiction by virtue of Sections 7 and 8 respectively, of the 1869 Act and is the principal Court of original civil jurisdiction in the district within the meaning of C.P.C., as per Section 7 of that Act. As per Section 8 of the Act of 1869, the District Court is the Court of appeal from all decrees and orders passed by the subordinate Courts from which an appeal lies under any law for the time being in force. As per Section 16 of that Act, the District Judge can refer to any Additional District Judges subordinate to him, any original suits and proceedings of a civil nature, applications or references under Special Acts and miscellaneous applications. The Additional District Judges have jurisdiction to try such suits and to dispose of such applications or references. Section 17 of that Act envisages that an Additional District Judge shall have jurisdiction to try the appeals as may be referred to him by the District Judge. Section 19 of that Act, is a provision to invest power on the Additional District Judges, with powers of District Judge. The hierarchy of judicial officers of the District Court can be culled out from the 1869 Act. On the similar lines, the Bombay City Civil Court has been constituted under Section 3 of the Bombay City Civil Court Act, 1948, with jurisdiction to receive, try and dispose of all suits and other proceedings of a civil nature arising within the Greater Bombay except a suit or proceedings which are cognizable by the High Court referred to therein and by Small Causes Court. Section 7 of this Act envisages that when the City Civil Court consists of more than one Judge, each of the Judges may exercise all or any of the powers conferred on the Court by the said Act or any other law for the time being in force. Clause (b) of Section 7 stipulates that the State Government may appoint any one of the Judges to be the Principal Judge and any two other Judges to be called the Additional Principal Judges. The Principal Judge has been given authority to make such arrangements as he may think fit for the distribution of the business of the Court among the various Judges thereof. In other words, the District Judge or Principal Judge exercises judicial power of the State and is an authority having its own hierarchy of superior and inferior Courts, the law of procedure according to which it would dispose of matters coming before it depending on its nature and jurisdiction exercised by it, acting in judicial manner. The District Judge or Principal Judge of the City Civil Court is the officer presiding over the Court and derives his description from the nomenclature of the Court. Even if the District Judge/Principal Judge of the City Civil Court might retire or get transferred, his successor-in office can pick up the thread of the proceedings under Section 9 of the 1971 Act from the stage where it was left by his predecessor and can function as an appellate authority. The District Judge/Principal Judge of the City Civil Court and other judicial officers of these Courts possessing necessary qualifications constitute a class and cannot be considered as persona designata. The Appellate Officer, therefore, has to function as a Court and his decision is final in terms of Section 10 of 1971 Act. The legislative intent behind providing an appeal under Section 9 before the Appellate Officer to be the District Judge of the concerned District Court in which the public premises are situated or such other judicial officer in that district possessing necessary qualification to be designated by the District Judge for that purpose, is indicative of the fact that the power to be exercised by the Appellate Officer is not in his capacity as persona designata but as a judicial officer of the pre-existing Court. The historical background of the 1971 Act would make no difference to the aforementioned analysis.

xxx xxx xxx

39. Notably, the expression "appellate officer" has not been defined in the 1971 Act, unlike the definition of "estate officer" contained in Section 2(1 )(b) of that Act. The appellate officer cannot be considered as a statutory authority, as defined in the dictionary clause in Section 2(1 )(fa) of the 1971 Act. In the case of Thakur Das (AIR 1978 SC 1) (supra), in paragraph 9, while analyzing the cleavage of opinion of the High Courts, it is noticed that the expression "judicial authority" would comprehend the Additional Sessions Judge or the Sessions Judge could transfer such appeal pending before him to Additional Sessions Judge which was a pointer to the fact that he was not a persona designata. Even in respect of the appeal under Section 9 of the 1971 Act, the Principal Judge of the City Civil Court or District Judge is competent to hear the appeal himself or designate some other judicial officer within his jurisdiction possessing requisite qualification. It will be useful to advert to Section 7 of the City Civil Courts Act and Sections 3,5 and 7 of the Maharashtra Civil Courts Act. It is implicit in Section 9 read with the provisions of the Acts constituting the District Judiciary that the head of the district judiciary is the District Judge or Principal Judge of the City Civil Court and Section 9 of the 1971 Act makes it explicit, by investing authority in the District Judge or Principal Judge of the City Civil Court, to designate any other judicial officer within his jurisdiction possessing essential qualifications, to hear such appeals. This is a clear departure from the appointment of a District Judge as a persona designata. The Additional District Judge or judicial officer possessing essential qualification, therefore, is not an inferior appellate officer within the meaning of Section 9 of the 1971 Act. In our opinion, there is enough indication in Section 9 of the 1971 Act to spell out the legislative intent that the remedy of appeal before the appellate officer is not before a persona designata but a pre-'existing judicial authority in the district concerned.

40. The Delhi High Court also considered the question as to whether the power exercised by the appellate officer is in his capacity of a Court or otherwise. Relying on Mulla's Code of Civil Procedure, 13th Edition Volume I, Page 500, it has been observed that where the word used in the enactment giving the special jurisdiction is not "Court" but "Judge", the entire enactment is to be looked into to find out whether the matter is to be decided by him as a Court or in his personal capacity. It went on to observe that no authority is forthcoming to show that when the word "Court" is not used at all, the District Judge or a Subordinate Judge functioning under a statute is held to be a Court even when the statute itself shows that he is to function as an appellate officer or with some designation other than that of a Court, and further when CPC has not been applied as a procedure to be followed by the Judge and when there is no indication that the Judge is to function as a Court. It then observed that the Court is a creation of a statute either under CPC or Punjab Courts Act. In the final analysis, the Delhi High Court concluded that the appellate officer cannot be regarded as a Court and must, therefore, be regarded as a persona designata.

41. The fact that there is no express indication in the 1971 Act about the procedure to be adopted or followed by the appellate officer, it would not follow therefrom that the District Judge or designated judicial officer who hears the appeals under Section 9, does so not as a Court but as a persona designata. For the reasons already alluded to we have no hesitation in holding that the remedy of appeal under Section 9 before the Appellate Officer is not as a persona designata but to a pre-existing judicial authority. In that case, the procedure for hearing of the appeals will be governed by the provisions under the 1971 Act and Rules framed thereunder and including the enactment under which the judicial authority has been created, such as Maharashtra Civil Courts Act and City Civil Courts Act. [See para 26 of Maharashtra State Financial Corporation (1991 AIR SCW 612) (supra), reproduced in earlier part of this judgment in para 26], Such a pre-existing judicial authority, by implication, would be bound to follow the procedure underlying the said enactments and also observe the doctrine of fairness in affording opportunity. Since the edifice on which the conclusions reached by the Delhi High Court, that an appellate officer is persona designata and not a Court, cannot be countenanced in law, the Bombay High Court decisions in Nusli Neville Wadia's case (2010 (4) AIR Bom R (NOC) 397) (supra) and also Prakash Securities Pvt. Ltd. (supra), cannot hold the field to that extent for the same logic."

9. It is contended by the counsel that if we apply the principles, it will be clear that the Rent Control Court is not a quasi-judicial tribunal or persona designata. In Mukri Gopalan's case, the Supreme Court had examined the meaning of the expression "persona designata" in a great detail. Quoting from Osborn's Concise Law Dictionary, it was held that "persona designata" is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. Reckoning the various decisions on the point, the learned Judges ruled in Mukri Gopalan's case that the appellate authority constituted under Section 18 of the Act cannot be regarded as persona designata. We have already extracted the ratio in Life Insurance Corporation of India's case (supra)., wherein also guidelines have been laid down for identifying if a particular authority is a persona designata or a judicial authority or a court functioning as per the statutory provisions.

10. It is brought to our notice that Section 2(5) of the Act defines "Rent Control Court" as a Court constituted under Section 3. Section 3 is quoted hereunder for profit:

"3.Constitution of Rent Control Courts and appointment of Accommodation Controllers.-- (1) The Government may, by notification in the Gazette, appoint a person who is or is qualified to be appointed, a Munsiff to be the Rent Control Court for such local areas as may be specified therein.

(2) The Government may, by notification in the Gazette, appoint any Officer not below the rank of a Tahsildar to be the Accommodation Controller for any area to which this Act applies.

(3) The Accommodation Controller shall exercise his powers and perform his functions subject to such general directions as the Government may issue."

11. On a perusal of the above Section, it will be clear that the Government has power to appoint a Munsiff to be the Rent Control Court for such local areas as may be specified. Similarly, the Government also has power to appoint a person, who is qualified to be appointed a Munsiff, to be the Rent Control Court for such local area. But as per notification, S.R.O No.390/73, it can be seen that both Principal and Additional Munsiffs functioning in the State having jurisdiction over the areas within which the provisions of the Act have been extended, shall be the Rent Control Court for the said areas. In other words the Government has chosen to appoint judicial officers of the rank of Munsiffs only as Rent Control Courts, despite its power to appoint persons having qualification to be Munsiffs. We shall quote the notification hereunder:

"S.R.O No.390/73.- In exercise of the powers conferred by sub-section (1) of Section 3 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965), and in suppression of all previous notifications on the subject, the Government of Kerala hereby appoint the Munsiffs both Principal and Additional, if any, having jurisdiction over the areas within which the provisions of the Act have been extended, to be the Rent Control Court for the said areas (Notn. N0.39445/B2/72/PW dated 30-5-73 in KG No.25dt. 19-6-73."

12. It is therefore argued that Article 234 of the Constitution of India, dealing with recruitment of persons other than District Judges to the judicial service, including the Munsiffs, who function as the Rent Control Court in the State, will have to be taken into consideration to find that they are not persona designata, but they function as courts under the Act.

13. In this context, reliance is placed on Chandra Mohan v. State of Uttar Pradesh and Others (1966 KLT OnLine 1224 (SC) = AIR 1966 SC 1987), wherein the Supreme Court considered whether the expression "judicial officers" would take in the members of Executive department, who discharge some revenue and magisterial duties. In that context, the Supreme Court held as follows :

"16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as District Judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a District Judge? The acceptance of this position would take us back to the pre-independence days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Article 233 (1) stood alone, it may be argued that the Governor may appoint any person as a District Judge, whether legally qualified or not, if he belongs to any service under the State. But Article 233 (1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of District Judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in Clause (2) thereof. Under Clause (2) of Article 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution "the service of the Union or of the State" means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate Courts, in which the expression "the service" appears indicates that the service mentioned therein is the service pertaining to Courts. That apart, Article 236(2) defines the expression "judicial service" to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. If this definition, instead of appearing in Article 236, is placed as a clause before Article 233(2), there cannot be any dispute that "the service" in Article 233(2) can only mean the judicial service. The circumstance that the definition of "judicial service" finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression "the service" is used whereas in Arts 234 and 235 the expression "judicial service" is found is not decisive of the question whether the expression "the service" in Article 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with District Judges. The expressions "exclusively" and "intended" emphasise the fact that the judicial service consists only of persons intended to fill up the posts of District Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined "judicial service" in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district Judge.

17. Reliance is placed upon the decision of this Court in Rameshwar Dayal v. State of Punjab (AIR 1961 SC 816), in support of the contention that "the service" in Article 233(2) means any service under the State. The question in that case was, whether a person whose name was on the roll of advocates of the East Punjab High Court could be appointed as a District Judge, in the course of the judgment S.K.Das, J., speaking for the Court, observed:

"Article 233 is a self-contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under Clause (1) the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already in service, a qualification is laid down in Clause (2) and all that is required is that he should be an advocate or pleader of seven years' standing."

This passage is nothing more than a summary of the relevant provisions. The question whether "the service" in Article 233(2) is any service of the Union or of the State did not arise for consideration in that case nor did the Court express any opinion thereon.

18. We, therefore, construe the expression "the service" in Clause (2) of Article 233 as the judicial service.

19. But, it is said that this construction ignores Article 237 of the Constitution. We do not see how Article 237 helps the construction of Article 233(2). Article 237 enables the Governor to implement the separation of the judiciary from the executive. Under this Article, the Governor may notify that Articles 233,234,235 and 236 of the Constitution will apply to magistrates subject to certain modifications or exceptions; for instance, if the Governor so notifies, the said Magistrates will become members of the judicial service, they will have to be appointed in the manner prescribed in Article 234, they will be under the control of the High Court under Article 235 and they can be appointed as District Judges by the Governor under Article 233(1). To state it differently, they will then be integrated in the judicial service which is one of the sources of recruitment to the post of District Judges. Indeed, Article 237 emphasises the fact that till such an integration is brought about, the Magistrates are outside the scope of the said provisions. The said view accords with the constitutional theme of independent judiciary and the contrary view accepts a retrograde step.

20. The history of the said provisions also supports the said conclusion. Originally the posts of District and Sessions Judges and Additional Sessions Judges were filled by persons from the Indian Civil Service. In 1922 the Governor-General-in-Council issued a notification empowering the local Government to make appointments to the said service from the members of the Provincial Civil Service (Judicial Branch) or from the members of the Bar. In exercise of the powers conferred under Section 246(1) and Section 251 of the Government of India Act, 1935, the Secretary of State for India framed rules styled Reserved Posts (Indian Civil Service) Rules, 1938. Under those Rules, the Governor was given the power to appoint to a district post a member of the judicial service of the Province or a member of the Bar. Though Section 254(1)of the said Act was couched in general terms similar to those contained in Article 233(1) of the Constitution, the said rules did not empower him to appoint to the reserved post of District Judge a person belonging to a service other than the judicial service. Till India attained independence, the position was that District Judges were appointed by the Governor from three sources, namely, (i) the Indian Civil Service, (ii) the Provincial Judicial Service, and (iii) the Bar. But after India attained independence in 1947, recruitment to the Indian Civil Service was discontinued and the Government of India decided that the members of the newly created Indian Administrative Service would not be given judicial posts. Thereafter District Judges have been recruited only from either the judicial service or from the Bar. There was no case of a member of the executive having been promoted as a District Judge. If that was the factual position at the time the constitution came into force, it is unreasonable to attribute to the makers of the Constitution, who had so carefully provided for the independence of the judiciary, an intention to destroy the same by an indirect method. What can be more deleterious to the good name of the judiciary than to permit at the level of District Judges, recruitment from the executive departments? Therefore, the history of the services also supports our construction that the expression "the service" in Article 233 (2) can only mean the judicial service.

21. For the aforesaid reasons, we hold that the Rules framed by the Governor empowering him to recruit District Judges from the "judicial officers" are unconstitutional and, therefore, for that reason also the appointment of respondents 5, 6 and 7 was bad.

22. In this view, it is not necessary to express our view on the last two questions.

23. In the result, we hold that the U.P. Higher Judicial Service Rules providing for the recruitment of District Judges are constitutionally void and, therefore, the appointments made thereunder were illegal. We set aside the order of the High Court and issue a writ of mandamus to the 1 st respondent not to make any appointment by direct recruitment to the U.P.Higher Judicial Service in pursuance of the selections made under the said Rules. The 1 st respondent will pay the costs of the appellant. The other respondents will bear their own costs. Order Accordingly."

14. Reliance is also placed on Shri Kumar Padma Prasad v. Union of India & Ors. (1992 (1) KLT OnLine 905 (SC) = (1992) 2 SCC 428), wherein the expression "judicial office" has been interpreted by the Supreme Court with reference to Article 217 of the Constitution of India :

"22. It is in the above context that we have to interpret the meaning of expression "judicial office" under Article 217(2)(a) of the Constitution of India. The High Court Judges are appointed from two sources, members of the Bar and from amongst the persons who have held "judicial office" for not less than ten years. Even, a subordinate judicial officer manning a court inferior to the District Judge can be appointed as a Judge of a High Court. The expression "judicial office" in generic sense may include wide variety of offices which are connected with the administration of justice in oneway or the other. Under the Criminal Procedure Code, 1973 powers of judicial Magistrate can be conferred on any person who holds or has held any office under the Government. Officers holding various posts under the executive are often vested with the Magisterial powers to meet a particular situation. Did the framers of the Constitution have this type of 'offices' in mind when they provided a source of appointment to the high office of a Judge of High Court from amongst the holders of a "judicial office". The answer has to be in the negative. We are of the view that holder of "judicial office" under Article 217(2)(a) means the person who exercises only judicial functions, determines causes inter-partes and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of judiciary."

15. Yet another decision relied on by the learned counsel is State of Maharashtra v. Labour Law Practitioners' Association & Ors. (1998 (1) KLT OnLine 1119 (SC) = (1998) 2 SCC 688), wherein it has been held thus:

"10. The District Judge, therefore, covers a judge of any Principal Civil Court of original jurisdiction. With an increase in the numbers of specialised courts and tribunals which are being set up to deal with specific kinds of civil litigation which would otherwise have been dealt with by the ordinary civil courts, we now have a number of specialised courts exercising different categories of civil original jurisdiction. It can be specialised civil original jurisdiction pertaining to labour and industrial disputes specified in the relevant Acts as in the case of Labour and Industrial Courts, or it could be pertaining to recovery of bank debts and so on. The structure of civil courts exercising original jurisdiction is no longer monolithic. The judge of the Principal Civil Court heading the set of courts concerned under him and exercising that jurisdiction can also fall in the category of a "District Judge" by whatever name called. Learned Single Judge and learned Judges of the Division Bench have, therefore, held that an Industrial Court is a civil court exercising civil original jurisdiction; and the person presiding over it could well be termed as a District Judge. The term "District Judge" should not be confined only to the judge of the Principal Civil Court in the hierarchy of general civil courts.

The term would now have to include also the hierarchy of specialised civil courts, such as a hierarchy of Labour Courts and Industrial Courts. The fact that the Chief Presidency Magistrate and the Sessions Judge were also included in the definition of "District Judge" indicates that a wide interpretation is to be given to the expression "District Judge". The extensive definition of a District Judge under Article 236 is indicative of the same.

11. Under Article 236(b), the expression "judicial service" is defined to mean "a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge". Judicial service thus postulates a hierarchy of courts with the District Judge as the head and other judicial officers under him discharging only judicial functions."

16. The above decisions clearly lay down the principles to understand meaning of the expression "judicial service" and therefore, the Rent Control Court manned by Munsiffs functioning under the Kerala Judicial Service Rules, 1991, are to be regarded as judicial officers and they, by themselves, form a class.

17. Learned counsel pointed out that another Division Bench in Balakrishnan v. Mariyumma (1997 (1) KLT 205), had occasion to find in paragraph 14 of the judgment that the Rent Control Court under the Act is a Court and not a persona designata. However, it was found that it is not a Civil Court for the purpose of section 115 of the Code of Civil Procedure, 1908. But then, it has been clearly stated that the Munsiff functioning as Rent Control Court is not a persona designata. This decision was not referred to in Ratheesh's case.

18. Yet another reason pointed out for contending that Rent Control Court is a court is the implication of Section 14 of the Act which says that an order of eviction should be deemed to be a decree.

19. Apart from the above reasons, learned counsel for the petitioners placed reliance on various provisions under the Limitation Act, 1908 and the Kerala Buildings (Lease and Rent Control) Act, 1959 (in short the 'the Act of 1959'). Section 31 of the Act of 1959 reads thus:

" 31. Application of the Limitation Act - The provisions of Section 5 of the Indian Limitation Act, 1908 (9 of 1908) shall apply to all proceedings under this Act."

20. On a perusal of Section 5 of the Limitation Act, 1908, it can be seen that it applied to proceedings under any enactment if the statute permitted the application of Section 5 of the Limitation Act, 1908. Section 5 of the Limitation Act is extracted hereunder for clarity:

"5. Extension of period in certain cases.- Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.- The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."

21. On a conjoint reading of Section 31 of the Act of 1959 and Section 5 of the Limitation Act, 1908, it can be seen that the said provision applied to the Rent Control Proceedings under the old Act by express inclusion.

22. Learned counsel for the petitioners contended that in the light of express mentioning in section 29(2) of the Limitation Act, 1963, even if we do not find a provision akin to Section 31 of the old Act of 1959, in the present Act, it does not make any difference, because the Rent Control Court is a court and the Act being a special law, Section 29(2) of the Limitation Act will operate enabling it to exercise all powers under the provisions in Sections 4 to 24 of the Limitation Act. This is also a reason projected in support of the view that Section 5 of the Limitation Act is applicable to Rent Control Proceedings.

23. Learned counsel supporting the view in Ratheesh's case contended that a distinction has to be drawn between persona designata and a quasi-judicial tribunal functioning under the Act. According to the view expressed by the learned counsel in support of the ratio in Ratheesh's case, the Rent Control Court although may not a persona designata, but it cannot be elevated to the status of a regular court. Reliance is also placed on Prakash H.Jain v. Marie Fernandes (2003 (3) KLT OnLine 1220 (SC) = (2003) 8 SCC 431) to contend the following propositions:

"7. Per contra, the learned counsel appearing for the respondent, while placing strong reliance upon Sections 39 and 43 of the Act, contended with equal vehemence that Chapter VIII is a distinct and separate one standing apart and disassociated from the other provisions of the Act and according to the scheme underlying the said Chapter and the various provisions contained therein, the powers of the competent authority are limited as specifically delineated and indicated therein and no further or other powers outside the provisions contained in the said Chapter could be invoked by the said authority. Argued the learned counsel for the respondent further that the competent authority is neither a "court" in the eye of the law as would denote a court of ordinary jurisdiction nor the provisions of the Limitation Act or the principles enshrined therein could be invoked or exercised by the said authority in relation to any of the proceedings arising under the said Chapter.

xxx xxx xxx

10. We have carefully considered the submissions of the learned counsel appearing on either side. Questions of the nature raised before us have to be considered not only on the nature and character of the authority, whether it is court or not but also on the nature of powers conferred on such authority or court, the scheme underlying the provisions of the Act concerned and the nature of powers, the extent thereof or the limitations, if any, contained therein with particular reference to the intention of the legislature as well, found expressed therein. There is no such thing as any inherent power of court to condone delay in filing proceedings before a court/authority concerned, unless the law warrants and permits it, since it has a tendency to alter the rights accrued to one or the other party under the statute concerned. So far as the Maharashtra Rent Control Act, 1999 is concerned, different provisions seem to have been made constituting different authorities conferred with different nature of powers as well in dealing with claims before such authorities/courts constituted for the purpose as well as in relation to further avenue of remedies against orders passed by the original authority. Chapter VIII of the Act is itself with a caption, "Summary disposal of certain applications" and Section 39 reads that the provisions of Chapter VIII or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force. Therefore, there is hardly any scope to have recourse to any other provisions in the very Act or any other law, when particularly there are specific and clear provisions or stipulation in Chapter VIII itself as to how a particular situation has to be handled and what are the powers of the authorities constituted for the purpose of Chapter VIII of the Act. Section 40 envisages the appointment of a competent authority by the Government for purposes of exercising powers therein. Section 41 has its own definition of landlord for the purposes of the said Chapter and Section 42 provides a special procedure for seeking eviction under the said Chapter, and Section 43 provides special procedure, as the legislature itself calls it to be, for disposal of applications. Sub-section (2) of Section 43 mandates the issue of summons in the form specified in Schedule III, which form indicates, apart from informing the person concerned about the filing of an application seeking for his eviction, the need to appear and contest the application for eviction on the ground mentioned therein and that in default whereof the applicant will be entitled, at any time after the expiry of the period stipulated therefor, to obtain an order for his eviction from the said premises and further, as to how the said application should be filed as well. Section 44 states that the order of the competent authority is not appealable and only revision could be sought before the Government or the authority designated for the purpose. Section 49 deems the competent authority under the Chapter to be a public servant within the meaning of Section 21 of IPC, while all proceedings before such authority are deemed to be judicial proceedings for the purposes of Sections 193 and 228 I.P.C. under Section 50, and Section 51 deems the competent authority to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973.

xxx xxx xxx

13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefore and subject to such conditions and limitations stipulated by the very provision of law under which the competent authority itself has been created. Clause (a) of sub-section (4) of Section 43 mandates that the tenant or licensee on whom the summons is duly served should contest the prayer for eviction by filing, within thirty days of service of summons on him, an affidavit stating the grounds on which he seeks to contest the application for eviction and obtain the leave of the competent authority to contest the application for eviction as provided therefore. The legislature further proceeds to also provide statutorily the consequences as well laying down that in default of his appearance pursuant to the summons or obtaining such leave, by filing an application for the purpose within the stipulated period, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant or licensee, as the case may be, and the applicant shall be entitled to an order for eviction on the ground so stated by him in his application for eviction. It is only when leave has been sought for and obtained in the manner stipulated in the statute that a hearing is envisaged to be commenced and completed once again within the stipulated time. The net result of an application/affidavit with grounds of defence and leave to contest not having been filed within the time as has been stipulated in the statute itself as a condition precedent for the competent authority to proceed further to enquire into the mer

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its of the defence, the competent authority is obliged, under the constraining influence of the compulsion statutorily cast upon it, to pass orders of eviction in the manner envisaged in clause (a) of sub-section (4) of Section 43 of the Act. The order of the learned Single Judge of the High Court under challenge in this appeal is well merited and does not call for any interference in our hands." 24. Placing reliance on Om Prakash v. Ashwani Kumar Bassi(2010 (3) KLT Suppl. 120 (SC) = AIR 2010 SC 3971), it is contended that Rent Control Court cannot be regarded as a court to which Section 5 of the Limitation Act applies for the view taken by the Supreme Court in the following lines : " 17. Section 13-B is a power given to a Non-Resident Indian owner of a building to obtain immediate possession of a residential building or scheduled building when required for his or her use or for the use of any one ordinarily living with and dependent on him or her. The right has been limited to one application only during the life time of the owner. Section 18-A(2) of the aforesaid Act provides that after an application under Section 13-B is received, the Controller shall issue summons for service on the tenant in the form specified in Schedule II. The said form indicates that within 15 days of service of the summons the tenant is required to appear before the Controller and apply for leave to contest the same. There is no specific provision to vest the Rent Controller with authority to extend the time for making of such affidavit and the application. The Rent Controller being a creature of statute can only act in terms of the powers vested in him by statute and cannot, therefore, entertain an application under Section 5 of the Limitation Act for condonation of delay since the statute does not vest him with such power." In this case, the Supreme Court was examining the powers of Rent Controller under the East Punjab Urban Rent Restriction Act, 1949. 25. Learned counsel, who support the above view in Ratheesh's case contended that clear distinction in the phraseology in Sections 3,14 and 18 will have to be considered for deciding whether the Rent Control Court is a quasi-judicial tribunal or a regular court. According to the learned counsel, Section 3 of the Act says that a person who is or is qualified to be appointed a Munsiff could be appointed as Rent Control Court, whereas in Section 14 of the Act, it is mentioned that only a principal Munsiff shall be the executing court. In Section 18 of the Act, it is stated that the Government may, by general or special order confer on such officers and authorities not below the rank of a subordinate Judge the powers of appellate authorities. According to the learned counsel, this distinction speaks volumes because in Section 3 of the Act, it is a person having a prescribed qualification to be appointed, whereas in Section 18 of the Act, the class of officers has been selected. For this reason also, it is contended that the Rent Control Courts cannot be deemed to be regular courts to which Section 5 of the Limitation Act would apply. 26. After hearing the arguments on both sides and also bestowing our attention to the observations in Ratheesh's case based on M.P.Steel Corporation, we notice one fact that in M.P.Steel Corporation's case, two Judge bench of the Supreme Court clearly found that the ratio in Mukri Gopalan's case does not square with the observations of the three Judge bench in Consolidated Engineering Enterprises's case as the latter decision unequivocally held that the Limitation Act will not apply to quasijudicial bodies or tribunals. According to the decision in M.P.Steel Corporation to that extend Mukri Gopalan is in conflict with the judgment in the Consolidated Engineering Enterprises. On a close reading of the decisions in Mukri Gopalan's case and M.P. Steel Corporation's case, we do not find any reason to hold that in M.P. Steel Corporation the propositions laid down in Mukri Gopalan, that the District Judges, functioning under Section 18 of the Act as appellate authorities, are District Judges as such and not persona designata, are in anyway affected. It is clearly mentioned in M.P Steel Corporation that the fact that a District Judge himself happened to be the appellate authority under the Act would have been sufficient for the Limitation Act to apply without going into the proposition that the Limitation Act could apply to Tribunals too. 27. In the light of the aforementioned principles, we find that the view taken in Ratheesh's case that Section 5 of the Limitation Act will not apply to Rent Control Courts needs a deeper scrutiny, especially when there are pronouncements by larger benches of the Supreme Court indicating that the Rent Control Courts cannot be regarded as persona designata. Having regard to judicial propriety and decorum, it may not be proper on our part to pronounce on the correctness or otherwise of the ratio in Ratheesh's case. Therefore, we deem it fit to refer the question regarding correctness of the ratio in Ratheesh's case to be decided by a larger bench after taking orders of the Hon'ble Chief Justice. Registry is therefore directed to place the captioned cases before the Hon'ble Chief Justice to refer it to a larger bench for considering correctness of the above ratio in Ratheesh's case. Similar issues are pending in various courts across the length and breadth of the State, we deem it fit to instruct the Registry to take urgent steps to see that the matter is placed before a larger bench at the earliest.
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