An Analysis of Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971: The Appellate Mechanism

An Analysis of Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971: The Appellate Mechanism

Introduction

The Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter "PP Act") was enacted to provide a summary procedure for the eviction of unauthorised occupants from public premises and for certain incidental matters.[1, 5] A cornerstone of this statutory framework is Section 9, which provides for an appellate mechanism against orders passed by the Estate Officer. This article seeks to critically analyze Section 9 of the PP Act, examining its scope, the nature of the appellate authority, procedural aspects, and significant judicial interpretations that have shaped its application. The provision for appeal is crucial in ensuring adherence to principles of natural justice and providing a check on the powers exercised by the Estate Officer under the Act.

Legislative Framework of the Public Premises Act, 1971

Before delving into Section 9, it is pertinent to understand the broader scheme of the PP Act. The Act defines "public premises"[5] and "unauthorised occupation"[3] extensively. Estate Officers are appointed under Section 3 with the authority to conduct inquiries.[6] Section 4 mandates the issuance of a show-cause notice before an order of eviction,[6, 13] and Section 5 empowers the Estate Officer to pass an eviction order after considering the cause shown and evidence produced.[6] Section 5A deals with the removal of unauthorised constructions,[8, 9] Section 5B with the power to demolish unauthorised constructions, and Section 5C with the power to seal unauthorised constructions.[8] Section 7 confers power upon the Estate Officer to require payment of rent or damages in respect of unauthorised occupation.[6]

The PP Act is designed for the speedy recovery of public premises and arrears of rent.[6] It has been consistently held to be a special Act that overrides general statutes like the Rent Control Act in respect of premises covered by both.[3, 4, 14] Section 10 of the PP Act accords finality to orders passed by the Estate Officer or the appellate officer, stipulating that they shall not be called in question in any original suit, application, or execution proceedings, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken under the Act.[8] Furthermore, Section 15 bars the jurisdiction of civil courts to entertain any suit or proceeding in respect of matters which the Estate Officer or appellate officer is empowered to determine.[6, 8]

Section 9: The Appellate Provision - Detailed Analysis

Section 9 of the PP Act provides the statutory right of appeal against certain orders of the Estate Officer. Its structure and interpretation have been the subject of considerable judicial scrutiny.

Scope of Appeal

Section 9(1) stipulates that an appeal shall lie from every order of the Estate Officer made in respect of any public premises under Section 5 (eviction of unauthorised occupants), Section 5B (demolition of unauthorised constructions), Section 5C (sealing of unauthorised constructions), or Section 7 (recovery of rent or damages).[8, 12]

A significant issue has been the appealability of orders passed under Section 5A (removal of unauthorised constructions). In Yogesh Agarwal v. Estate Officer & 2 Ors., a Full Bench of the Allahabad High Court was constituted to determine whether an order passed under Section 5A is appealable under Section 9.[12] This reference arose because a prior Division Bench in Sanjay Agarwal v. Union of India had held such an appeal to be maintainable, despite Section 9 not explicitly listing Section 5A. The learned Single Judge referring the matter opined that the right to appeal is purely a statutory creation, and if the statute does not provide for an appeal against a Section 5A order, one cannot be maintained.[12] The outcome of such references is crucial for clarifying the extent of appellate review available under the PP Act.

Appellate Authority

An appeal under Section 9 lies to an "appellate officer." This officer is defined as "the District Judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the District Judge may designate in this behalf."[8, 15] For presidency-towns, the chief judge or the principal judge of the city civil court is deemed to be the District Judge.[15]

The qualification and designation of "such other judicial officer" have been contentious. In Mir Akhtar Hussain v. District & Sessions Judge, the Delhi High Court addressed whether an Additional District Judge (ADJ) not having 10 years' standing as a "Judicial Officer" could be designated to hear appeals under Section 9.[16, 17] The Court, referring to Section 21(2) of the Punjab Courts Act, 1914 (applicable to Delhi), held that an ADJ discharges the functions of a District Judge as assigned and exercises the same powers. Therefore, an ADJ, by virtue of being able to discharge any function of the District Judge, could hear such appeals irrespective of the 10-year standing requirement, which applies when the District Judge designates "such other judicial officer" who is not an ADJ.[16, 17, 20] The Delhi High Court in Akhtar Hussain expressly disagreed with the view in Bawa Gopal Singh v. Union of India (AIR 1980 Punjab 69) and concurred with the Division Bench in Tara Singh v. Addl. District Judge, Ferozepur (AIR 1984 Punjab and Haryana 175), which held that an ADJ with less than 10 years' standing could dispose of appeals under Section 9, relying on Article 236 of the Constitution and Section 21(2) of the Punjab Courts Act.[20]

Nature of the Appellate Officer: Persona Designata v. Court

Historically, there was a debate on whether the appellate officer under Section 9 acts as a court or as a persona designata (an individual acting in a personal capacity, not as a judge). Early decisions, such as Nanak Chand v. The Estate Officer (referring to the 1958 Act), held the appellate officer to be a persona designata, implying that a reference under Section 113 of the Code of Civil Procedure (CPC) would not be competent.[18] In Shri N.P Berry v. Delhi Transport Corporation, while discussing the maintainability of a petition under Article 227 of the Constitution, the Delhi High Court considered arguments distinguishing a judge acting as a persona designata from one acting as a court.[15]

However, the legal position has evolved. The Supreme Court's decision in Life Insurance Corporation of India v. Nandini J. Sah ([2018] 15 SCC 356), as cited by the Gauhati High Court in MANOJ PRASAD v. THE GENERAL MANAGER, clarified that the appellate officer, while exercising power under Section 9 of the PP Act, does not act as a persona designata but in their capacity as a pre-existing judicial authority (District Judge or designated judicial officer).[19] Being part of the district judiciary, the judge acts as a court, and the order passed is an order of a subordinate court.[19] This interpretation has significant implications, including the nature of further remedies available against the appellate order.

Procedural Aspects

Section 9 lays down specific procedural requirements for appeals:

  • Time Limits: An appeal from an order under Section 5 must be preferred within fifteen days from the date of publication of the order under sub-section (1) of that section. An appeal from an order under Section 7 must be preferred within fifteen days from the date on which the order is communicated to the appellant.[15] The 1958 Act initially had a 45-day period for appeals under Section 5, which was later amended to 30 days, and then to 15 days in the 1971 Act.[11]
  • Condonation of Delay: The proviso to Section 9(2) empowers the appellate officer to entertain an appeal after the expiry of the said period if satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.[15]
  • Stay of Enforcement: Under Section 9(3), where an appeal is preferred, the appellate officer may stay the enforcement of the Estate Officer's order for such period and on such conditions as deemed fit.[15]
  • Expeditious Disposal: Section 9(4) mandates that every appeal shall be disposed of by the appellate officer as expeditiously as possible.[15]
  • Costs: Section 9(5) states that the costs of any appeal under this section shall be in the discretion of the appellate officer.[15]

While the PP Act provides for a summary procedure, principles of natural justice must be adhered to. The Supreme Court in New India Assurance Company Ltd. v. Nusli Neville Wadia And Another, while dealing with the question of who should lead evidence before the Estate Officer, emphasized the importance of fairness and reasonable opportunity.[1, 13] Such principles would inherently extend to the appellate stage, ensuring a fair hearing.

Judicial Interpretation and Key Issues Arising from Section 9

Appealability of Orders under Section 5A

As discussed, the non-inclusion of Section 5A (orders for removal of unauthorised constructions) in the list of appealable orders under Section 9(1) has led to judicial uncertainty. The reference to a Full Bench in Yogesh Agarwal[12] highlights a critical gap or ambiguity in the statute. If no appeal lies, the only remedy against an adverse Section 5A order would be writ jurisdiction, which has a more limited scope of review compared to a statutory appeal.

Qualification and Designation of Appellate Officers

The interpretation by the Delhi High Court in the Mir Akhtar Hussain cases,[16, 17, 20] affirming that an ADJ can hear appeals under Section 9 by virtue of powers under the Punjab Courts Act without necessarily having 10 years' standing as a judicial officer, facilitates the distribution of judicial workload. This pragmatic interpretation ensures that the appellate mechanism does not become bottlenecked due to a restrictive reading of the qualification criteria for "other judicial officer."

Nature of Proceedings and Scope of Review

The appellate officer under Section 9 is empowered to re-examine the findings of fact and law made by the Estate Officer. The scope of appeal is generally wider than judicial review under writ jurisdiction. While the PP Act aims for speedy disposal, the appellate process must ensure that complex issues of fact and law are adequately addressed. The Delhi High Court in Vikas Jain v. Union Of India & Ors noted earlier Supreme Court observations that matters involving complex contractual breaches or detailed evidence might not be suitably decided in a summary manner under the PP Act,[10] suggesting that appellate authorities must be mindful of the complexity of issues before them.

Subsequent Challenges to Appellate Orders

Given the finality attached to appellate orders under Section 10 of the PP Act and the bar of jurisdiction of civil courts under Section 15, the primary recourse against an order of the appellate officer is judicial review by the High Court under its writ jurisdiction. As established by the Supreme Court in LIC v. Nandini J. Sah (cited in MANOJ PRASAD[19]), since the appellate officer acts as a subordinate court, a challenge to such an order would lie under Article 227 of the Constitution of India, which pertains to the High Court's power of superintendence over subordinate courts and tribunals. A challenge under Article 226 (general writ jurisdiction) may not be the appropriate remedy.[19]

Interaction with Other Laws

The PP Act, including its appellate mechanism under Section 9, operates as a self-contained code for eviction from public premises. The Supreme Court in cases like Ashoka Marketing Ltd. And Another v. Punjab National Bank And Others[4, 8] and Jain Ink Manufacturing Company v. Life Insurance Corporation Of India And Another[3] has firmly established the supremacy of the PP Act over general laws like the Delhi Rent Control Act, 1958, where both apply. This means that an occupant of public premises cannot typically invoke the protections of rent control legislation to resist eviction proceedings initiated under the PP Act. Disputes concerning such matters, once decided by the Estate Officer, are appealable under Section 9, and the appellate officer's decision is made within the framework of the PP Act's overriding provisions.

Conclusion

Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, provides a vital safeguard within a legislative scheme designed for the expeditious recovery of public property. It offers a statutory right of appeal against key orders of the Estate Officer, ensuring a review by a judicial authority. Judicial interpretations have played a crucial role in clarifying the scope of appealable orders, the qualifications and nature of the appellate officer, and the procedural nuances of the appellate process. The evolution of the understanding of the appellate officer from a persona designata to a court has significant implications for the remedies available against such appellate decisions, primarily channeling them through Article 227 of the Constitution.

Despite clarifications, areas such as the appealability of orders under Section 5A continue to be subjects of judicial deliberation, as seen in the Yogesh Agarwal reference. The effective functioning of Section 9 is paramount to balancing the objective of speedy eviction from public premises with the principles of fairness, natural justice, and the rule of law, thereby ensuring that the summary powers under the PP Act are exercised judiciously and are subject to appropriate appellate scrutiny.

References