Allahabad High Court: Deciding upon a reference, a Full Bench of the Allahabad High Court has held that an order of eviction in respect of public premises passed by the Estate Officer under Section 5-A of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 is not appealable under Section 9 and that the High Court in exercise of its jurisdiction under Article 226 cannot create a remedy of an appeal when the statute does not provide for one. The power and jurisdiction to legislate for an appeal lies in the legislature.
The 1971 Act has been held to be a special statute relating to eviction of unauthorised occupants from public premises and Sections 5-A (power to remove unauthorised constructions, etc.,); 5-B (order of demolition of unauthorised construction) and 5-C (power to seal unauthorised constructions) were introduced by an amendment by the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 with effect from 20 December 1980. Parliament provided in Section 9 an appeal against an order which has been passed either under Section 5 or 5-B or 5-C or 7 but omitted Section 5-A.
The Bench comprising of Dr D.Y. Chandrachud, C.J., Manoj Kumar Gupta and Yashwant Varma, JJ. set aside the decision of the Division Bench in Sanjay Agarwal v. Union of India [Writ (C) No. 14580 of 2012 decided on 26 March 2012] observing that no appeal has been provided against an order of the Estate Officer made under Section 5-A and that the Division Bench had founded its rationale on the ground that otherwise such a party against whom an order was passed under Section 5-A would be remediless, which is contrary to the well-settled principle of law.
Citing various precedents, the Court observed that “An appeal, it is well settled, is a creation of statute. The remedy of an appeal owes its existence to the law by which it is brought into being.” Where the legislature has provided for an appeal against orders passed under certain specific provisions but not against other orders, it would not be open to the court by a process of interpretation to expand the ambit of the appellate remedy, which exercise is impermissible. Moreover, even though an appeal has not been provided against an order passed under Section 5-A, the legality of such an order is subject to judicial review under Article 226. [Yogesh Agarwal v. Estate Officer, 2016 SCC OnLine All 26, decided on 12-1-2016]
