Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 998 (AP)

Boya Palappa v. District Judge, Ananthapur

2005-10-25

B.PRAKASH RAO, G.YETHIRAJULU

body2005
B. PRAKASH RAO, J. ( 1 ) THIS case is coming up before us on a reference made by a learned single Judge Sri Justice M. H. S. Ansari as per the order dated 13. 08. 1996 on the question as to the jurisdiction of the Vacation Civil Judge to entertain petitions under the A. P. Tenancy Act and the further question whether the orders passed by the Vacation Civil Judge could have been set aside by the District Judge in appeal under Section 16 (2) of the A. P. Tenancy Act when an appeal would lie only to the High Court. ( 2 ) THE facts, which are necessary for disposal of this Revision, are that the main Revision is filed under Article 227 of the Constitution of india seeking to assail the orders passed by the learned District Judge, ananthapur in I. A. No. 174 of 1996 in A. T. A. No. 1 of 1996. The petitioners and the respondents 5 and 6 filed a petition under Section 10 of the andhra Pradesh (Andhra Area) Tenancy Act. Along with the said petition, an interlocutory application was filed for grant of ex parte temporary injunction. As the Courts were closed for Summer Recess, the said petition was filed before the Vacation Civil judge, who granted an ex parte injunction in favour of the petitioners. However, the respondents filed an appeal in A. T. A. No. 1 of 1996 before the District Judge, Anantapur and the district Judge by orders dated 10. 07. 1996 in I. A. No. 174 of 1996, granted stay of the operation of the injunction on the sole ground that the vacation Civil Judge had no jurisdiction to pass orders in Tenancy matters. It would be convenient to extract the said order in its entirety, which reads as under:"heard both sides. The Vacation Civil Judge had no jurisdiction to pass orders in Tenancy matters. Hence, the order is illegal. In the circumstances stay of operation of the order is granted. Petition allowed. It would be convenient to extract the said order in its entirety, which reads as under:"heard both sides. The Vacation Civil Judge had no jurisdiction to pass orders in Tenancy matters. Hence, the order is illegal. In the circumstances stay of operation of the order is granted. Petition allowed. " ( 3 ) THE real controversy centers around the point is whether the special Officer cum District Munsif is a persona designata and whether the vacation Civil Judge, would have jurisdiction to entertain the petition filed under Section 10 of the Tenancy Act and pass any orders thereon during vacations and whether the appellate authority constituted under the tenancy Act has jurisdiction to entertain an Appeal against an order of the vacation Civil Judge. In V. RAMA RAO v. K. BALA KOTAIAH, 1985 (2) ALT 276. a learned single Judge of this Court held that:"an appeal against the orders of the Vacation Civil Judge shall lie only to the High Court and that by an appointment of a Vacation Civil Judge, the power exercisable by the concerned Presiding Officer of the Court stands transferred to the Vacation Civil Judge by virtue of the deeming provisions under sub-section (5) of Section 32 of the A. P. Civil Courts Act, 1972". This view was affirmed by a Division Bench of this Court in REV. T. ANANTHAM vs. P. C. BENJAMIN, 1991 (2) ALT 572 . ( 4 ) THE controversy, however is whether the Special Officer-cum- district Munsif, who is the authority under Section 10 of the Tenancy Act is a persona designata or a Civil Court and whether the Civil Vacation judge would have jurisdiction to entertain the petition filed under Section 10 of the Tenancy Act which if the Courts were in Vacation. In c. RAMACHANDRA REDDY vs. S. ASWARTHANARAYANA, 1993 (1) ALT 585 a single Judge of this Court, while considering whether the provisions of Section 5 of the Limitation Act would apply to proceedings before the Special officer-cum-District Munsif to extend time beyond the prescribed period of limitation for filing an application to set aside the ex parte or default order, held as follows:"since the Special Officer is not a Civil Court as discussed earlier, though manned by an officer of a judicial cadre, the Limitation Act had no application to the proceedings before him. . . ". . . ". ( 5 ) IN MURAMALLA AMMANNARAJU vs. BABBA seetaratnam, 1993 (3) ALT 221 (D. B.) the following observations are made:"it must be noted here itself that prior to the amendment of the A. P. (A. A.) Tenancy Act, 1956 the tenancy Courts presided ov. 2r by the Tahsildars and the revenue Divisional Officers were not considered as courts, but were considered only as Tribunals. By virtue of the amendment to the above Act, brought under Act no. 39 of 1974, the expressions Tahsildars and revenue divisional Officers were substituted by the words special officers and district Judges , and the Government, in exercise of the powers conferred under the Act, by a notification, appoints the District Munsifs as Special officers under the Act, and the District Judges as the appellate authority. So except the change brought in by the Legislature by replacing the Judicial Officers in the place of revenue personnel through the amendment Act no. 39 of 1974, there is no other change in the Act in regard to the applicability, scope or nature of the Act. So, the position as was prevailing prior to the amendment, that the tenancy Courts presided over by the Revenue personnel are not the civil Courts still continues even after the amendment Act came into force. " ( 6 ) IN the light of the above, it was held as follows:"the District Munsifs or the District Judges discharging functions under the Andhra Pradesh (Andhra Area) tenancy Act are not civil Courts but only Tribunals, and as such, we hold that a revision does not lie to the High court under Section 115 of the Code of Civil Procedure against the orders passed by such Tribunals, as the tribunals are not subordinates to the High Court". The District Munsifs functioning under the A. P. Tenancy Act held to be persona designate and not Civil Court but only Tribunal. The Supreme court in its recent pronouncement in MUKRI GOPALAN vs. CHEPPILAT puthanpurayil ABOOBACKER, AIR 1995 (5) SCC 5 . considered the question whether the District Judges who by a notification published by the Government of kerala, were conferred jurisdiction within which the provisions of the kerala Rent Control Act have been extended, the powers of appellate authorities for the purposes of the said Act were Courts or persona designata. Applying the tests laid down in CENTRAL TALKIES LTD. considered the question whether the District Judges who by a notification published by the Government of kerala, were conferred jurisdiction within which the provisions of the kerala Rent Control Act have been extended, the powers of appellate authorities for the purposes of the said Act were Courts or persona designata. Applying the tests laid down in CENTRAL TALKIES LTD. , vs. DWARAKA PRASAD, AIR 1961 SC 606 . and to the observations made therein which were to the following effect:"a 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 . In the words of Schwabe, C. J. in parthasaradhi NAIDU vs. KOTESWARA RAO, AIR 1924 Mad. 561. personae designata are persons selected to act in their private capacity and not in their capacity as Judges . The same consideration applies also to a well-known officer like the District Magistrate named by virtue of his Office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act. The decision of Sapru, J in the Allahabad case, with respect, was erroneous". held that the appellate authorities as stated under Section 18 of the kerala Rent Control Act being the District Judges, they constituted a Class and cannot be considered to be persona designata. It was further observed that once it is held that the appellate authority is not a persona designata, it becomes obvious that it functions as a Court. ( 7 ) IN the above background, the question as mentioned has come up for consideration. While referring to the decisions as cited across the Bar, it is seen that another decision of a Division Bench of this Court in g. SRIRAMAMURTHY v. MAJJI NARASAIAH, 1995 (3) ALT 615 . to which the learned single Judge was also a party. ( 7 ) IN the above background, the question as mentioned has come up for consideration. While referring to the decisions as cited across the Bar, it is seen that another decision of a Division Bench of this Court in g. SRIRAMAMURTHY v. MAJJI NARASAIAH, 1995 (3) ALT 615 . to which the learned single Judge was also a party. While considering the provisions of the andhra Pradesh (Andhra Area) Tenancy Act 1956 and the rules made there under visa-a-vis the applicability of the provisions of Section 5 read with Section 29 (2) of the Limitation Act 1963, it was held that the District judge functioning as an appellate authority against the order of the special Officer under Section 16 (2) of the Tenancy Act is a Tribunal persona designata and not a Civil Court. Since Section 5 of the Limitation act applies only to the proceedings in Civil Court, it does not apply to the tribunal. Therefore, it was further held that the District Judge has no power to condone the delay in filing an appeal under Section 5 read with section 29 (2) of the Limitation Act. In the said decision, the Division bench sought to rely on the principles laid down in BIRLA CEMENT works v. G. M. WESTERN RAILWAYS, AIR 1995 SCW 1140 wherein it was held that the provisions of the Limitation Act have no application as it is not a Civil court. A reference was also made to the decision reported in KERALA s. E. BOARD v. T. P. KUNHALIUMMA, AIR 1977 SC 282 wherein the question was whether the petition under Section 16 (3) of the Telegraph Act claiming enhanced compensation falls within the scope of Article 137 of the limitation Act and held that:"in many statutes reference is made to the District Judge under this particular title while the intention is to refer to the Court of the District Judge. The Telegraph Act in Sec. 16 contains intrinsic evidence that the District Judge is mentioned there as the Court of the District Judge. . . . . The District Judge under the telegraph Act acts as a civil Court in dealing with applications under Section 16 of the Telegraph Act. The Telegraph Act in Sec. 16 contains intrinsic evidence that the District Judge is mentioned there as the Court of the District Judge. . . . . The District Judge under the telegraph Act acts as a civil Court in dealing with applications under Section 16 of the Telegraph Act. "basing on these observations of the Apex Court, it was reasoned in the above case of G. Sriramamurthy (8fh referred supra) it is clear that though petition under Section 16 (3) of the Telegraph Act was to be filed before the District Judge, number of provisions of the statute make reference to the District Judge as Presiding Judge of the District Court. However, by referring to the other decisions cited from this Court, it was held that the appellate authority mentioned in Sec. 16 (2) of the Act, namely, the District Judge, is only a persona designata, but not a Court. However, in MUKRI GOPALAN s case (5th referred supra) which was also referred to by a learned single Judge at the time of reference, the Apex Court considering the provisions of Kerala Rent Control Act visa- a-vis the provisions of the Limitation Act 1963, it was held that the District judges function as appellate authorities under Section 18 thereof, such authorities are courts and not persona designata. While coming to the said conclusion, the principles as enunciated are:"the jurisdiction to entertain proceedings under the special laws is some times given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. "the view that since the appellate authority under Section 18 of the Kerala Rent Control Act is a persona designate and therefore, he cannot resort to Section 5 of the Limitation Act for condoning the delay in filing appeal before him is not correct. An authority can be styled to be persona deslgnata If powers are conferred on a named person or authority and such powers cannot be exercised by anyone else. The appellate authority constituted under Section 18 (1) has to decide lis between parties in a judicial manner and subject to the revision of its order, the decision would remain final between the parties. Such an authority is constituted by designation as the District judge of the district having jurisdiction over the area over which the said Act has been extended. Such an authority is constituted by designation as the District judge of the district having jurisdiction over the area over which the said Act has been extended. Even though the District judge concerned might retire or get transferred or may otherwise cease to hold the office of the District Judge his successor-in-office can pick up the thread of the proceedings from the stage where it was left by his predecessor and can function as an appellate authority under Section 18. If the district Judge was constituted as an appellate authority being a persona designate or as a named person being the appellate authority as assumed in the present case, such a consequence, on the scheme of the Act would not follow. It must, therefore, be held that appellate authorities as constituted under Section 18 of the Rent Act being the District Judges they constituted a class and cannot be considered to be persona designata. Since all the District Judges having jurisdiction over the areas within which the provisions of the Rent Act have been extended are constituted as appellate authorities under Section 18 by the government notification and these District Judges have been conferred the powers of the appellate authorities while adjudicating upon the dispute between the landlord and tenant and while deciding the question whether the Rent Control court s order is justified or not such appellate authorities would be functioning as courts. All the trappings to constitute such an authority as a court are found to be present. ( 8 ) IT is not possible to accept the submission that Sections 4 to 24 of the Limitation Act would apply to civil courts as duly constituted under the Civil Procedure Code and if that is so even if they are to be made applicable to suit, appeal or application governed by periods of limitation prescribed by any special or local law, they necessarily require such suit, appeal or application to be filed under special or local law before full- fledged civil courts as otherwise Sections 4 to 24 by themselves would not apply to them. Section 29 (2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these sections of the limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand. " ( 9 ) HAVING regard to the aforesaid principles as laid down by the Apex court, it is now too late in the day to hold that the Tribunals or authorities as constituted under the Special Acts would not be Courts but only a persona designata. The distinction as drawn between the trappings of a Court and persona designata are amply made clear and there is no difference in regard to the constitution of the Tribunals under the A. P. (A. A.) Tenancy Act with that of the Tribunals as constituted under the said rent Control Legislation. Therefore, the view which was held by the division Bench in G. SRIRAMAMURTHY s case (8th referred supra) no longer holds good and it stands overruled in view of the decision reported in MUKRI GOPALAN (5th referred supra ). Thus, for the reasons mentioned in the above, it has to be held that the Tribunals constituted under the Tenancy Act are the Courts for-all Rurposes including that of the a. P. Civil Courts Act 1972. The reference is answered accordingly.