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Allahabad High Court · body

2001 DIGILAW 744 (ALL)

GANGA RAM DOHREY v. STATE OF UTTAR PRADESH

2001-07-26

I.M.QUDDUSI

body2001
M. QUDDUSI, J. ( 1 ) THIS application has been filed under Section 24, C. P. C. for transfer of Appeal No. 257 of 2000, Ganga Ram Dohrey v. State of U. P. , preferred under Section 9 of the U. P. Public premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as the Act)from the Court of VII Additional District Judge, Lucknow to any other competent court having the same jurisdiction. ( 2 ) I have heard learned counsel for the applicant. ( 3 ) THE applicant has filed this application after rejection of his application for transferring the appeal, by the District Judge. ( 4 ) SECTIONS 9 (1) to (6) of the Act provide as under : "9, Appeals.-- (1) An appeal shall He from every order of the prescribed authority made in respect of any public premises under Section 5 or Section 7 to an appellate officer who shall be the District Judge of the district in which the public premises are situate or such other Judicial officer not below the rank of Civil Judge as the District Judge may designate in this behalf. (2) An appeal under Sub-section (1) shall be preferred,- (a) in the case of an appeal from an order under Section 5. within twelve days from the date of publication of the order under Sub-section (1) of that section ; (b) in the case of an appeal from an order under Section 7, within fifteen days from the date on which the order is communicated to the appellant ; and provided that the appellate officer may entertain the appeal after the expiry of the said period of fifteen days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) Where an appeal Is preferred from an order of the prescribed authority, the appellate officer may stay the enforcement of that order for such period and on such conditions as he deems fit ; (4) Every appeal under this section shall be disposed of by the appellate officer as expeditiously as possible ; (5) The cost of any appeal under this section shall be In the discretion of the appellate officer ; (6) The District Judge may withdraw any appeal pending with any judicial officer referred to in sub-section (1) and either dispose of the same or transfer it to any other judicial officer referred to In that sub-section. " ( 5 ) SECTION 10 provides regarding finality of orders passed by prescribed authority or the appellate officer. The provisions of Section 10 of the Act are quoted below : "10. Finality of orders.--Save as otherwise expressly provided in this Act, every order made by a prescribed authority or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken In pursuance of any power conferred by or under this Act. " ( 6 ) SECTION 24, C. P. C. provides that on the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or withdraw any suit, appeal or other proceeding pending in any court subordinate to it, and try or dispose of the same : or transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or retransfer the same for trial or disposal to the Court from which It was withdrawn. The provisions of Section 24, C. P. C. are also quoted as under : "24. The provisions of Section 24, C. P. C. are also quoted as under : "24. General power of transfer and withdrawal.-- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of Its own motion without such notice, the High Court or the District Court may at any stage : (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same ; or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same ; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same ; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the court which is thereafter to try or dispose of such suit or proceeding, may. subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section : (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District court ; (b) "proceeding" includes a proceeding for the execution of a decree or order. (4) The Court trying any suit transferred or withdrawn under this section from a court of small causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (4) The Court trying any suit transferred or withdrawn under this section from a court of small causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it," ( 7 ) THE question before this Court is that when there is specific provision given in the Act to transfer the appeal and there is no provision in the Act by which Section 24, C. P. C. may be made applicable and also in Section 8 of the Act, in the Rules made under the Act by the State government in exercise of powers conferred to it under Section 18 of the Act, the specific provisions of Code of Civil Procedure applicable to the proceedings under the Act have been given, in which applicability of Section 24. C. P. C. has not been indicated, how this application moved under Section 24. C. P. C. can be held maintainable. ( 8 ) THE provisions of Section 8 of the Act as well as Rule 10 of the Rules are quoted as under ; "8. Powers of prescribed authority--The prescribed authority and the appellate officer shall, for the purpose of holding any Inquiry or hearing any appeal under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely,- (a) summoning and enforcing the attendance of any person and examining him on oath ; (b) requiring discovery and production of documents ; (c) any other matter which may be prescribed. " "10. Power under the Code of Civil Procedure, 1908. " "10. Power under the Code of Civil Procedure, 1908. (Section 8c ).-- The prescribed authority or the appellate officer shall, for the purposes of holding any inquiry or hearing any appeal under the Act, have the same powers as are vested In the civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely : (a) the power to dismiss an application or appeal for default and restore It for sufficient cause ; (b) the power to proceed ex parte and set aside, for sufficient cause and order passed ex parte : (c) the power to order attachment before judgment ; and (d) the power referred to in Section 151 of the Code of Civil Procedure, 1908, to make any order for the ends of justice or to prevent the abuse of process of the authority concerned. " ( 9 ) SECTION 8c provides that any other matter which may be prescribed, may also be applicable to the Act which is provided in the Code of Civil Procedure. The matter prescribed is in Rule 10 and no-where else. Therefore, the only provisions of Code of Civil Procedure given in the Act and the Rules made thereunder can be applicable in respect of the proceedings held under the act. ( 10 ) LEARNED counsel for the applicant has submitted that the words other proceedings used in section 24, C. P. C. authorizes to file application for transfer under Section 24, C. P. C. In respect of any Act. His submissions in this regard are not sustalnable in the eye of law. The word other proceedings used in Section 24, C. P. C. denotes the proceedings held under the Code of Civil procedure or in any other civil proceedings in which provisions of Section 24, C. P. C. are applicable or in the situation where any Civil Act is silent in respect of the applicability of the code of Civil Procedure but not in the matter in which specific provisions of the Code of Civil procedure only have been adopted in which Section 24, C. P. C, is not Included. The Act is the special law while the Code of Civil Procedure is general law and it is well-settled that the specific law would prevail over the general law. The Act is the special law while the Code of Civil Procedure is general law and it is well-settled that the specific law would prevail over the general law. ( 11 ) IN the matter of Abid Ali v. District Judge, Bahraich and Ors. , 1987 ALJ 179, this Court has held as under : "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 Civil Procedure code 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 been 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 Civil Procedure Code, 1908. In view of this provision, provisions of the Code will have no general application to proceeding 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 38, 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 designata or Court contemplated by Courts Act. " ( 12 ) IN view of the above, application under Section 24, C. P. C. is not maintainable. Therefore, the same is dismissed. .