Abide Ali v. District Judge — 1986 DIGILAW 247 (ALL)

JUDGMENT S.C. Mathur, J. - This petition arises from the proceedings for release u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (Act No. 13 of 1972) for short, 'Buildings Act'. Opposite Parties No. 4 and 5 Girlish Kumar and Rajesh Kumar filed application against Petitioner Abide Ali seeking release of the shop in question on the ground that the same was required by them for their own use. The application was rejected by the Prescribed Authority Massif, Bacharach Opposite Party No. 3 by his Order dated 08.02.1985, Annexure No. 3. Opposite Parties No. 4 and 5 thereafter preferred Appeal u/s 22 before the learned District Judge, Bacharach who transferred it for hearing to the Civil Judge, Bacharach. Opposite Party No. 2 allowed the appeal and released the shop in question in favor of Opposite Parties No. 4 and 5. Aggrieved by this order of the learned Civil Judge tenant-Petitioner has approached this Court Under Article 226 of the Constitution. 2. Apart from challenging the order of the learned Civil Judge on merits, Petitioner has raised a purely legal ground which pertains to the jurisdiction of the Civil Judge, to hear the appeal. The Petitioner admits that this question was not raised before the learned Civil Judge but his learned Counsel has pressed that since the matter relates to inherent lack of jurisdiction he may be permitted to raise it before this Court in the present proceedings. In my opinion, the question raised by the learned Counsel does go to the root of the jurisdiction of the learned Civil Judge to hear and decide the appeal and therefore, Petitioner should be permitted to raise the plea in the present proceedings despite the fact that the plea was not raised before the appellate authority below. 3. According to the learned Counsel for the Petitioner an appeal u/s 22 could be heard either by the District Judge himself or by an Additional District Judge and no other officer was comps tent to hear and decide such an appeal. For making the submission the learned Counsel has placed reliance upon Sections 22 and 10 of the Buildings Act. Section 22 provides as follows: 22. For making the submission the learned Counsel has placed reliance upon Sections 22 and 10 of the Buildings Act. Section 22 provides as follows: 22. Appeal-Any person aggrieved by an order u/s 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge, and in other respects, the provisions of Section 10 shall mutatis mutandis apply in relation to such appeal. This provision prescribes forum for appeal in respect of proceedings u/s 21 of the Act. Apart from providing the forum it also provides the limitation for filing the appeal against the order u/s 21. Thereafter, it provides that in respect of other matters Section 10 would be applicable mutatis mutandis. Section 10 provides for appeal against orders passed Under Sections 8 and 9. Under this provision also appeal lies to the District Judge. Sub-section (1) of Section 10 reads as follows: 10(1). Any person aggrieved by an order of the District Magistrate u/s 8 or Section 9 may, within 30 days from the date of the order, prefer an appeal against it to the District Judge, and the District Judge may either dispose it of himself or assign it for disposal to an Additional District Judge under his administrative control, and may recall it from any such officer or transfer it to any other such officer. This Section first provides the appellate forum which is the District Judge. Thereafter it prescribes the manner in which the District Judge may deal with an appeal filed before him. The Section lays down that the District Judge may either dispose it of him or assign it for disposal to an Additional District Judge. It further provides that even after transferring an appeal to an Additional District Judge he can recall it from such Additional District Judge and transfer it to any other 'such' officer. Use of this word 'such' before the word 'officer' is significant. Use of this word indicates that further transfer can also be only to an Additional District Judge and to no other officer. 4. Apart from Section 10 there is no other provision in the Buildings Act relating to transfer of appeals from the Court of District Judge to other courts and under this provision transfer is possible only to the court of Additional District Judge and to no other court. 4. Apart from Section 10 there is no other provision in the Buildings Act relating to transfer of appeals from the Court of District Judge to other courts and under this provision transfer is possible only to the court of Additional District Judge and to no other court. Therefore, transfer of the appeal in question to the court of Civil Judge was incompetent and without jurisdiction. 5. The transfer of the appeal by District Judge to the Civil Judge has been supported by learned Counsel for the Opposite Parties No, 4 and 5 by reference to the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887, for short Courts Act, and Section 24 of the Code of Civil Procedure. According to the learned Counsel the "District Judge" mentioned in Section 22 and 10 of Courts Act (?) is not a persona designate but it is a court created under the provisions of the Courts Act, and therefore, powers of the District Judge, including the power to transfer a case filed before him shall have to be determined with reference to the provisions of the said Act. According to the learned Counsel Under Sub-section (1) of Section 22 of this Act it is competent for the District Judge to transfer an appeal to any Civil Judge under his administrative control Learned Counsel submits that the Civil Judge who decided the present appeal was a Civil Judge under the administrative control of the District Judge, Bacharach and therefore, fanfare of appeal to his court was fully covered by Sub-section (1) of Section 22. In my opinion no assistance can be derived from the general provision contained in the Courts Act as the same cannot supersede the provisions of a Special enactment like the Buildings Act. 6. The learned Counsel has also placed reliance upon Section 34 of the Buildings Act and Rule 22 framed there under. Section 34 makes applicable the Code of Civil Procedure, 1908 (Act No. v. of 1908), for short, 'Code' to proceedings under the Buildings Act. On this basis learned Counsel submits that the power of transfer was available to the learned District Judge u/s 24 of the Code also. Section 34 makes applicable the Code of Civil Procedure, 1908 (Act No. v. of 1908), for short, 'Code' to proceedings under the Buildings Act. On this basis learned Counsel submits that the power of transfer was available to the learned District Judge u/s 24 of the Code also. Section 24 of the Code does confer power upon the District Judge to transfer cases from one court to another, including cases pending before him, but Section 34 of the Buildings Act does not make all the provisions of the Code applicable to proceedings under the Buildings Act. Only the provisions of the C ode specified in Clauses to (f) of Sub-section (1) of Section 34 apply to such proceedings. Section 24 of the Code is not included in these Clauses. Clause states" Any other matter which may be prescribed. "Section 41 of the Buildings Act confers power on the State Government to frame Rules. In exercise of this power State Government has framed U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, Rule 22 whereof makes applicable certain further provisions of the Code to proceedings under the Buildings Act. These provisions are enumerated in Clauses (a) to (f). None of these clauses includes Section 24 of the Code. 7. From the above discussion it would appear that the transfer of the Appeal by the District Judge to the Civil Judge cannot be justified even by reference to the provisions of the Code of CPC and the 'Courts Act.' Further the Buildings Act is a special act while the Code and the Courts Act are general enactments. It is settled law that the provisions of Special enactment prevail over the provisions of general enactment. This principle has bee specifically adopted in Section 38 of the Buildings Act wherein it has been provided that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in Transfer of Property Act or in the Code of Civil Procedure, 1908. In view of this provision provisions of the Code will have no general application to proceedings under the Buildings Act. The said provisions will have application only to the extent they have been specifically adopted. Although the Courts Act has not been specifically mentioned in Section 3x, intention of the legislature is apparent that the provisions of the Buildings Act will have precedence over the provisions of any other enactment. The said provisions will have application only to the extent they have been specifically adopted. Although the Courts Act has not been specifically mentioned in Section 3x, intention of the legislature is apparent that the provisions of the Buildings Act will have precedence over the provisions of any other enactment. This consequence follows whether the ' District Judge ' mentioned in Sections 22 and 10 is treated to be a persona designated or Court contemplated by Courts Act. 8. Learned Counsel for the Opposite Parties No. 4 and 5 has placed reliance on certain authorities. These authorities may be briefly noticed. Central Talkies Limited, Kanput v. Dwarka Prasad, 1961 AWR 238 (SC) was a case under the provisions of the U.P. Temporary Control of Rent and Eviction Act, 1947. The question which arose before their Lordships in this case was whether a person authorized to discharge the functions of the District Magistrate under the Act was a persona designate or otherwise. It was held by their Lordships that such an officer was not a persona designate. In view of my rending that the conclusion to which I have arrived is arrived even if the District Judge is treated as a Court under the provisions of the Court Act, this authority is of no assistance to the Opposite Parties. 9. Gopal Ram v. A.S.D.O. Etamadpur, Firozabad, Agra, 1967 ALJ 988 was a case, arising under the provisions of U.P. Panchayat Raj Act, 1947. The petition in this Court was directed against an order passed by A.S.D.O. Etamadpur, suspending the Parham of Gaon Sabha. The plea raised in the petition by the suspended Parham was that the power of suspension could not be exercised by the Addl. Sub-Divisional Officer. Section 95(g) of the Panchayat Raj Act conferred power on the State Government to suspend a Parham. Section 96A authorized the State Government to delegate its power in this behalf to any officer or authority subordinate to it. It appears that in exercise of power conferred u/s 96A power had been conferred by the State Government upon Sub- Divisional Officer The term Sub-Divisional Officer has been defined in Section 2(ss) of the Act. In this definition Sub-Divisional Officer included Addl. Sub-Divisional Officer also. On an interpretation of the provisions of the Panchayat Raj Act it was held by the Division Bench of this Court that tube Sub-Divisional Officer included Addl. Sub-Divisional Officer also. In this definition Sub-Divisional Officer included Addl. Sub-Divisional Officer also. On an interpretation of the provisions of the Panchayat Raj Act it was held by the Division Bench of this Court that tube Sub-Divisional Officer included Addl. Sub-Divisional Officer also. This authority is based on inter predation of the provisions of the U.P. Panchayat Raj Act and cannot be said to lay down a law of general application. This authority also is, therefore, of no assistance to the Opposite Parties. 10. The question that arose for determination before the Full Bench of this Court in Dharmendra Prasad Singh v. State of U.P. 1969 AWR 66 was whether the Taxing Judge or and the Chief Justice while hearing reference under the Court Fees Act could make a reference u/s 5 of the Act to a larger Bench. No such question arises in the present case. 11. In Kashi Nath Singh v. District Magistrate and Collector, Marzipan 1970 AWR 577 the Full Bench reiterated view taken in Ganga Ram's case (supra) with certain elaboration. 12. 1984 AWC 577 , Samiullah v. Special Additional District Judge was a case arising under the provisions of U.P. Kshettra Samities (Election of Pramukhs and UP Pranwkhs and Settlement of Election Disputes) Rules, 1968. Under these Rules an Election Petition was to be preferred before the Judge. Under the definition clause the term 'Judge' meant District Judge and included any other subordinate Civil Judicial Officer named or designated by District Judge in that behalf. The Election Petition in this case was filed before the District Judge. He transferred it to the Special Judge for decision.... This transfer was challenged before this Court. A learned Single Judge of this Court held that the Special Judge was a Civil Judicial Officer named and designated by the District Judge and was therefore, competent to hear and decide the Election Petition. With this finding the Writ Petition was dismissed and the transfer of the Election Petition by District Judge to the Court of Special Judge was up-held. This authority is based upon the interpretation of the provisions of the Act and cannot be utilised for any general purpose. The learned Counsel for the opposite party has relied upon it mainly in support of his submission that the District Judge referred to in the Rules was not a persona designate. This authority is based upon the interpretation of the provisions of the Act and cannot be utilised for any general purpose. The learned Counsel for the opposite party has relied upon it mainly in support of his submission that the District Judge referred to in the Rules was not a persona designate. I have already observed hereinabove that the conclusion to which I have arrived follows even if the District Judge in the present case is held to be not a persona designate but Court under the Courts Act. This authority also is, therefore, of no assistance to the Opposite Parties. 13. In S. Chand and Co. Vs. II Addl. District Judge, Lucknow and Others, AIR 1986 All 26 and Moolchand Motumal Tekwani v. The Additional District Judge II 1985 AWC 462 it was held by two learned Single Judges of this Court that revision u/s 115 of the CPC was maintainable against order passed in proceedings u/s 30 of the Buildings Act. Section 30 of the Buildings Act authorizes a tenant to deposit rent in the court of Massif having jurisdiction. The question that arose in these two cases was whether Massif mentioned in Sub-section (3) of Section 30 was a persona designate or a Court so as to attract the provisions of Section 115 of the Code. Both the learned Judges held that Massif was not a persona designate but was the lowest court in the hierarchy of regularly constituted Civil Courts and as such Section 115 of the Code was applicable and that Section 38 of the Buildings Act was not a bar to the maintainability of such revision. These were not cases of transfer and there lore, they have no application to the facts of the present case. As already noticed in respect of transfer of an appeal filed either u/s 10 or u/s 22 specific provision has been made and therefore, this authority is of no assistance to the learned Counsel. 14. In view of the above discussion, in my opinion, the learned District Judge Bacharach was not competent to transfer the appeal preferred by Opposite Parties Nos. 4 and 5 to the Civil Judge, Bacharach Opposite Party No. 2. The judgment of the learned Civil Judge is, therefore, without jurisdiction and is liable to be quashed. 15. 14. In view of the above discussion, in my opinion, the learned District Judge Bacharach was not competent to transfer the appeal preferred by Opposite Parties Nos. 4 and 5 to the Civil Judge, Bacharach Opposite Party No. 2. The judgment of the learned Civil Judge is, therefore, without jurisdiction and is liable to be quashed. 15. In view of this finding it is not necessary to consider the other pleas raised by learned Counsel for the petitioner oak the merits of the finding recorded by learned Civil Judge on the landlord's claim of bonfire requirement u/s 21. 16. The learned Counsel for the Opposite Parties No. 4 and 5 has pressed that a date may be fixed for the appearance of the parties before the learned District Judge so that there is no loss of time. 17. For the discussion herein, the Writ Petition is allowed and the judgment and Order dated 21.11.1985 made by learned Civil Judge, Bacharach, Annexure No. 4, is hereby quashed. The appeal shall now be heard either by District Judge, Bacharach himself or he may transfer it to an Additive nil District Judge subordinate to him but it shall be transferred to no other court. The cost of this petition shall be easy. The Petitioner and Opposite Parties No. 4 and 5 shall appear before learned District Judge, Bacharach on 11.04.1986 for taking a date for the hearing of the Appeal. 18. A certified copy of this judgment shall be issued to the parties applying therefore within 3 weeks of their applying, provided application in that behalf is made within 3 days of the pronouncement of this judgment. A copy of this judgment shall be transmitted to the learned District Judge, Bacharach also within one month of the pronouncement of this judgment.