MUNICIPAL CORPORATION OF GREATER MUMBAI AND OTHERS versus VIVEK V. GAWDE ETC. ETC.

Summary

The Supreme Court set aside a Bombay High Court order that framed nine points for decision by the Inquiry Officer in eviction proceedings under Chapter V-A of the Mumbai Municipal Corporation Act, 1888 against retired municipal employees and their heirs. The writ petitions were not maintainable under Article 226 against the appellate order of the City Civil Court, no case for Article 227 interference existed, and by framing issues in a summary proceeding the High Court took over a function the Act gives the statutory authority.

Issues

1. Whether an order of the Principal Judge, City Civil Court, as appellate officer under Section 105F of the Act can be challenged by a writ of certiorari under Article 226, or only under Article 227.
2. Whether the High Court, in writ or supervisory jurisdiction, could frame points for determination for the Inquiry Officer in summary eviction proceedings under Chapter V-A.
3. Whether Section 3 of, and Article 137 of the Schedule to, the Limitation Act, 1963 apply to eviction proceedings under Section 105B.
4. Whether the proceedings were vitiated by institutional bias because the Inquiry Officer is an officer of the Corporation and a delegate of the Municipal Commissioner.
5. Whether eviction proceedings can continue without regulations under Section 105H.

Provisions considered

• Section 105F(1), Mumbai Municipal Corporation Act, 1888Following LIC v. Nandini J. Shah, the Court held that the Principal Judge of the City Civil Court, as appellate officer, exercises judicial power as a civil court and not as persona designata, so the appellate order could be challenged only under Article 227. (¶¶ 4.4, 12, 13, 14)
• Articles 226 and 227, Constitution of IndiaRelying on Radhey Shyam v. Chhabi Nath, the Court held that judicial orders of civil courts are not amenable to certiorari under Article 226. Under Article 227, which is supervisory and not appellate, a mere wrong decision after a hearing does not justify interference; and the Inquiry Officer's reasoned order showed no ground for review under Article 226. (¶¶ 11, 14, 15, 16, 18, 19, 20, 21, 22)
• Section 105B and Chapter V-A, Mumbai Municipal Corporation Act, 1888The Court treated Chapter V-A as governing summary proceedings for eviction from corporation premises, in which the Inquiry Officer, after evidence, identifies and decides the issues; the High Court could not frame them for him. (¶¶ 3, 8, 22, 35)
• Section 3, Section 2(j) and Article 137 of the Schedule, Limitation Act, 1963The Court held that Section 3 relates to suits, appeals and applications before judicial fora and could not apply to eviction proceedings before the Inquiry Officer, which are administrative in character though quasi-judicial; the High Court overlooked the Preamble, Section 2(j) and the heading of the Third Division in invoking Article 137. (¶¶ 6, 25)
• Section 53A, Transfer of Property Act, 1882The respondents' claim to remain in possession under part performance was left open for the Inquiry Officer to decide if raised, as it was not a demurrer going to jurisdiction and had not been examined earlier. (¶¶ 6, 26)
• Section 105H, Mumbai Municipal Corporation Act, 1888Because the provision says the Commissioner 'may' make regulations, the Court held it is not mandatory and does not bar the Inquiry Officer from proceeding without regulations, provided natural justice is observed. (¶¶ 4.4, 33, 34)
• Section 68, Mumbai Municipal Corporation Act, 1888The Commissioner may delegate the eviction function to a municipal officer; relying on Maganlal Chhaganlal, the Court held that such an officer acts as an independent quasi-judicial authority, subject to appeal to a judicial officer. (¶¶ 5, 30, 31)

Held

• An appellate officer under Section 105F, being the Principal Judge of the City Civil Court or a designated judicial officer, acts as a civil court and not as persona designata; a writ of certiorari under Article 226 does not lie against such an order, so the writ petitions were not maintainable for their primary relief. (¶¶ 13, 14, 15)
• Article 227 jurisdiction is supervisory and to be exercised sparingly; where the parties were heard by the civil court, a merely erroneous decision cannot be corrected under that article. (¶¶ 16, 18)
• Judicial review of an administrative or quasi-judicial order under Article 226 is confined to errors apparent on the face of the record, perversity, irrationality or procedural impropriety; a reasoned order of the Inquiry Officer answering each contention, which had in any case merged in the appellate order, disclosed none of these. (¶¶ 19, 20, 21)
• By framing points for determination in summary eviction proceedings at the stage of notice, the High Court exceeded both its writ and supervisory jurisdiction and assumed a function the Act entrusts to the statutory authority; at most it could mould the relief. (¶¶ 22, 35)
• The status of the premises as staff quarters and the unauthorised nature of occupation after retirement were barred by res judicata, having been decided against the occupants in an earlier High Court judgment that became final when this Court dismissed the SLP; impleading the State Government was superfluous. (¶¶ 24, 32)
• Section 3 of the Limitation Act, which applies to suits, appeals and applications before judicial fora, is not attracted to eviction proceedings before the Inquiry Officer, which are basically administrative though quasi-judicial in character. (¶ 25)
• Institutional bias cannot be imputed merely because the Inquiry Officer is an officer of the Corporation; the rule against being a judge in one's own cause applies only on proof of personal bias or interest or prior personal involvement, and the officer acts as a quasi-judicial authority subject to appeal to a judicial officer. (¶¶ 27, 28, 29, 30, 31)
• Since Section 105H only enables the Commissioner to make regulations, eviction proceedings may continue without them, subject to adherence to the principles of natural justice. (¶¶ 33, 34)

Result

Appeals allowed; the High Court's order set aside. The Inquiry Officer is to let both parties lead evidence and raise available defences, except those already concluded by earlier judicial orders, to identify and decide the issues independently in keeping with natural justice, and to proceed with expedition; no order as to costs.