Bharat Petroleum Corporation Ltd. v. The Estate Officer The New India Assurance Co. Ltd. And ANR.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE WRIT PETITION NO. 6744 OF 2015 Bharat Petroleum Corporation Ltd.
.. Petitioner
Versus
The Estate Officer, The New India Assurance Co. Ltd. & Anr.
.. Respondents ...
Mr. S. J. Chaurasia i/b. Ashoka Law Firm for Petitioner. Mr. V. Y. Sanglikar for Respondent No. 1.
CORAM : M. S. SONAK, J.
DATE : SEPTEMBER 14, 2015.
P.C.:
This petition challenges the order dated 25th June 2015, by which, the Estate Officer under the Public Premises (Eviction of Unauthorized Occupant) Act, 1971 (said Act) as declined to frame a preliminary issue on the point of jurisdiction. 2] There is no arbitrariness or error of jurisdiction involved in the making of the impugned judgment. The issue of jurisdiction, in the present case, is a mixed question of law and fact. If therefore, the Estate Officer decided to consider such issue along with all other issues that arise in the proceeding, it cannot be said that there is failure to exercise jurisdiction.
3] The learned counsel for the petitioner points out that the Estate Officer, in paragraph No. 6 has made an observation that since the proceeding under the said Act are summary in nature, there is no
obligation to frame issues. Learned counsel for the petitioner expresses apprehension that on the basis of such observation, the issue of jurisdiction will not even be considered by the Estate Officer. 4] Such apprehension is quite misplaced. In any case, is clarified that the Estate Officer is duty bound to consider whether it has jurisdiction in the matter, whether or not, the proceedings under the said Act are summary in nature.
5] The learned counsel for the petitioner place reliance upon the decision of the Apex Court in the case of Cantonment Board & Anr V/s. Church of North India AIR 2011 SC 2339. In the said decision, the Hon'ble Apex Court has held that even where the jurisdiction is not raised in the earliest instance, since, such issue goes to the root of the matter, the same is required to be decided by the Estate Officer. Obviously in this case also, the Estate Officer shall have to decide the issue of jurisdiction. However, the decision of the Apex Court, is not an authority for the proposition that such issue has to be decided as a preliminary issue and the same cannot be decided along with all other issues, even though, the issue of jurisdiction may be a mixed question of law and facts.
6] This Court, in the case Walchandnagar Industries Ltd., Mumbai vs. Indraprastha Developers, Pune and others has held that
jurisdiction under Section 115 of the CPC should not normally be exercised were, the court declines to frame any preliminary issue under Section 9A of the CPC or having framed such issue holds it has jurisdiction to proceed further in the matter. In this case, the provisions of Section 9 (A) of CPC obviously are not invoked. Further, the present petition invokes the provisions in Article 227 of the Constitution of India. Nevertheless, the principle laid down by this Court will still apply. This Court in paragraph 77 has observed thus ; 77.
The question is, should this Court in aforestated situation exercise its jurisdiction under Section 115 of Civil Procedure Code. The High Court may not exercise its jurisdiction in such situation.
and effective manner in wider jurisdiction of appeal; (viii) it is possible that if the suit is dismissed on merits, the decision on preliminary issue may lose its significance; and (ix) if any appeal is preferred against dismissal of suit, then in terms of subsection
(1) of section 105 read with Order XLIII, Rule 1A or under Order XLI, Rules 22 and 33 of CPC, it can be urged in such appeal by the defendant that the Trial Court could not have passed such an order and the Appellate Court is bound to decide the same on its own merits.
7] Accordingly, except for the clarification as aforesaid there is no reason to interfere with the impugned order. This petition is dismissed. There shall be no order as to costs. (M. S. SONAK, J.)
CERTIFICATE Certified to be true and correct copy of the original signed Judgment/Order.