Shanti Pershad and anr. Vs. Competent Authority Under the Slum Areas and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - for a moment i thought that even in a case like the present when an application whose application has been refused under section 19 of the act obtains such a copy on his own application of the order of the competent authority the date on which he obtains such a copy may be considered as the date of the communication of the order of the competent authority to such an applicant within the scope of rule 8 but in the face of the clear words of sub-section (4) of section 19 has been refused it is the competent authority who has to furnish a copy of the order of refusal to the applicant such an approach is not admissible and for this very reason the argument of the learned meaning of the word 'communication' in rule 8 order made by the competent authority no matter whether it is conveyed orally or in writing.order1. the facts of this petition under article 226 and 227 of the constitution so far as relevant are these. the petitioners have a decree in their favour for eviction of khazano devi respondent 3 the decree having been ultimately passed by this court in proceeding under the delhi and ajmer rent control act 1952, the premises are situate in a slum area and thus attract the provisions of the slum area (improvement and clearance ) act, 1956(act 96 of 1956) and hence under section 19 of this last mentioned act the petitioner applied to the competent authority for permission to the execute the decree (2) the competent authority dismissed that the application on may 21, 1962. on that date petitioner 1, shanti pershad was present before the competent authority. he therefore had knowledge of the dismissal of their application by the competent authority.(3) an appeal against the order of the competent authority to the administrator was filed on july 21 1962, rule 8 of the slum areas (improvement and clearance) rules 1957 provides-'every appeal under section 20 of the act shall be file i within a period of 30 days of the date of communication of the order of the competent authority. any appeal preferred after the said period shall be dismissed.'the petitioners, appeal filed some 60 days after the order of the competent authority. on july, 23 1962, the administrator as the appellate authority proceed to dismiss the appeal of the petitioner as barred by time obviously that was in the wake of rule 8.(4) the petitioners have arrested in paragraph 7 of their petition that while the competent authority announced its order on may, 21 1962, it had not communicated its order to the petitioners even up to the date of the petition which is october 3, 1962. in paragraph 9 it is further explained that while petitioner i was present when the order was announced but the competent authority also said that as the order had not been written on that date it would be communicated to the petitioners in due time. the position of the petitioners is that there has been no formal communication of the order by the competent authority to them even to this day. no return has been field by or on behalf of respondent 1 and 2., the competent authority and the administrator. in the return on behalf of respondent 3 the fact that the order was not communicated to the petitioners on may, 21 1962, is accepted as correct but in so far as the averments in paragraph 9 of the petition are concerned lack of knowledge is pleaded on behalf of respondent 3.(5) the learned counsel for respondent 3 contends that communication of the order of the competent authority under rule 8 was competent was complete as soon as the order was announced to petitioner i, and this is the meaning of the word 'communication' as it is used in the rule. it is possible approach, but the difficulty is created by sub-section (4) of section 19 of the act. that sub-section reads-'where the competent authority refused to grant the permission it shall be record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.'now, the requirement of this sub-section that the competent authority has to 'furnish a copy thereof to the applicant', apparently means that a copy of the order of the competent authority is to be furnished by that authority without even an application on the part of the applicant when the application has been refused. in the present case although it is stated in the petition that the petitioners obtained copy of the order of the administrator in august, 1962, but there is not statement when the application has been refused under section 19 of the act obtains a copy on his own application of the order of the competent authority was made and when the copy was ready for delivery. for a moment i thought that even in a case like the present when an application whose application has been refused under section 19 of the act obtains such a copy on his own application of the order of the competent authority the date on which he obtains such a copy may be considered as the date of the communication of the order of the competent authority to such an applicant within the scope of rule 8 but in the face of the clear words of sub-section (4) of section 19 has been refused it is the competent authority who has to furnish a copy of the order of refusal to the applicant such an approach is not admissible and for this very reason the argument of the learned meaning of the word 'communication' in rule 8 order made by the competent authority no matter whether it is conveyed orally or in writing.(6) in my opinion in view of sub-section (4) of section 19 and rule 8 it is only when the competent authority on refusal of an application under section 19 furnishes a copy of the order to the applicant that there is communication of its order to the applicant, and it is from the date of such communication of the order of the competent authority that 30 days must be reckoned under rule 8. the result then if that patently that patently the order of the administrator that the appeal of the petitioners is barred by time is contrary to rule 8 and cannot be maintained. so, that order is quashed.(7) there has even up to today been no communication of the order of the competent authority to the petitioners within the scope of rule 8 and the learned counsel for respondent 3 then says that not until there is such communication of the order of the competent authority communication of the order of the competent authority can there be a competent appeal by them. but in the rules there is no prohibition against the petitioners from filing an appeal even when the competent authority has not complied with sub-section (4) of section 19 and rule 8. the directions under article 227 of the constitution now are (a) that the competent authority, respondent 1, will now proceed to furnish a copy of his order to the petitioners in the terms of sub-section (4) of section 19 of the act, which the petitioners will file with their appeal, and (b) the administration respondent 2 as the appellate authority, will then proceed to the disposal of the appeal of the petitioners according to law. the petition of the petitioners according to law. the petition of the petitioners succeeds, but in the circumstances of the case there is no order in regard to costs.(8) petition allowed.

Judgment:
ORDER

1. The facts of this petition under Article 226 and 227 of the Constitution so far as relevant are these. The petitioners have a decree in their favour for eviction of Khazano Devi respondent 3 the decree having been ultimately passed by this Court in proceeding under the Delhi and Ajmer Rent Control Act 1952, The premises are situate in a slum area and thus attract the provisions of the Slum area (Improvement and Clearance ) Act, 1956(Act 96 of 1956) and hence under section 19 of this last mentioned Act the petitioner applied to the Competent Authority for permission to the execute the decree

(2) The Competent Authority dismissed that the application on May 21, 1962. On that date petitioner 1, Shanti Pershad was present before the Competent Authority. He therefore had knowledge of the dismissal of their application by the Competent Authority.

(3) An appeal against the order of the Competent Authority to the Administrator was filed on July 21 1962, Rule 8 of the Slum Areas (Improvement and Clearance) Rules 1957 provides-

'Every appeal under section 20 of the Act shall be file I within a period of 30 days of the date of communication of the order of the competent authority. Any appeal preferred after the said period shall be dismissed.'

The petitioners, appeal filed some 60 days after the order of the Competent Authority. On July, 23 1962, the Administrator as the appellate authority proceed to dismiss the appeal of the petitioner as barred by time obviously that was in the wake of rule 8.

(4) The petitioners have arrested in paragraph 7 of their petition that while the Competent Authority announced its order on May, 21 1962, it had not communicated its order to the petitioners even up to the date of the petition which is October 3, 1962. In paragraph 9 it is further explained that while petitioner I was present when the order was announced but the Competent Authority also said that as the order had not been written on that date it would be communicated to the petitioners in due time. The position of the petitioners is that there has been no formal communication of the order by the Competent Authority to them even to this day. No return has been field by or on behalf of respondent 1 and 2., the Competent Authority and the Administrator. In the return on behalf of respondent 3 the fact that the order was not communicated to the petitioners on May, 21 1962, is accepted as correct but in so far as the averments in paragraph 9 of the petition are concerned lack of knowledge is pleaded on behalf of respondent 3.

(5) The learned counsel for respondent 3 contends that communication of the order of the competent authority under rule 8 was competent was complete as soon as the order was announced to petitioner I, and this is the meaning of the word 'communication' as it is used in the rule. It is possible approach, but the difficulty is created by sub-section (4) of section 19 of the Act. That sub-section reads-

'Where the competent authority refused to grant the permission it shall be record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.'

Now, the requirement of this sub-section that the Competent Authority has to 'furnish a copy thereof to the applicant', apparently means that a copy of the order of the Competent Authority is to be furnished by that authority without even an application on the part of the applicant when the application has been refused. In the present case although it is stated in the petition that the petitioners obtained copy of the order of the Administrator in August, 1962, but there is not statement when the application has been refused under section 19 of the Act obtains a copy on his own application of the order of the Competent Authority was made and when the copy was ready for delivery. For a moment I thought that even in a case like the present when an application whose application has been refused under section 19 of the Act obtains such a copy on his own application of the order of the Competent Authority the date on which he obtains such a copy may be considered as the date of the communication of the order of the Competent Authority to such an applicant within the scope of rule 8 but in the face of the clear words of sub-section (4) of section 19 has been refused it is the Competent Authority who has to furnish a copy of the order of refusal to the applicant such an approach is not admissible and for this very reason the argument of the learned meaning of the word 'communication' in rule 8 order made by the Competent Authority no matter whether it is conveyed orally or in writing.

(6) In my opinion in view of sub-section (4) of section 19 and rule 8 it is only when the Competent Authority on refusal of an application under section 19 furnishes a copy of the order to the applicant that there is communication of its order to the applicant, and it is from the date of such communication of the order of the Competent Authority that 30 days must be reckoned under rule 8. The result then if that patently that patently the order of the Administrator that the appeal of the petitioners is barred by time is contrary to rule 8 and cannot be maintained. So, that order is quashed.

(7) There has even up to today been no communication of the order of the Competent Authority to the petitioners within the scope of rule 8 and the learned counsel for respondent 3 then says that not until there is such communication of the order of the Competent Authority communication of the order of the Competent Authority can there be a competent appeal by them. But in the rules there is no prohibition against the petitioners from filing an appeal even when the Competent Authority has not complied with sub-section (4) of section 19 and rule 8. The directions under Article 227 of the Constitution now are (a) that the Competent Authority, respondent 1, will now proceed to furnish a copy of his order to the petitioners in the terms of sub-section (4) of section 19 of the Act, which the petitioners will file with their appeal, and (b) the Administration respondent 2 as the appellate authority, will then proceed to the disposal of the appeal of the petitioners according to law. The petition of the petitioners according to law. The petition of the petitioners succeeds, but in the circumstances of the case there is no order in regard to costs.

(8) Petition allowed.