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2024 DIGILAW 2394 (ALL)

S. M. Shahnawaz v. Bachchu Lal

2024-11-22

NEERAJ TIWARI

body2024
JUDGMENT : (Neeraj Tiwari, J.) Heard Sri K.K. Tiwari, learned counsel for the petitioner and Sri Mahesh Sharma, advocate holding brief of Sri G.S. Chauhan, learned counsel for the respondent. 2. Present petition has been filed with following relief; ''(I) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 21.12.2022 passed by Civil Judge, Mauranipur, District Jhansi in Misc. Case No. 07 of 2022 (S.M. Shahnawaz v. Bachchu Lal) to this writ petition.'' 3. Brief facts of the case are that petitioner has filed P.A. Case No. 2 of 2016 under the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'Act, 1972'), which was allowed vide judgment and decree dated 21.12.2021. The said decree became final between the parties. Thereafter, petitioner has filed execution case being Civil Misc. Case No. 07 of 2022 before Civil Judge, Mauranipur, Jhansi to execute the judgement and decree dated 21.12.2021. Learned Civil Judge has rejected the execution case on the ground that New Rent Control Act i.e. Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 (hereinafter referred to as 'Act, 2021') came w.e.f. 11.1.2021. Therefore, in light of Section 38 of Act, 2021, this Court has no jurisdiction to decide the case and accordingly, dismissed. Hence, present petition. 4. Learned counsel for the petitioner submitted that undisputedly, case was filed under the provisions of Act, 1972 and also decreed. Therefore, execution proceeding shall only lie under the provisions of Old Act i.e. Act, 1972, which he had filed. He also pointed out that Section 36 of Act, 2021 provides that Rent Authority shall execute only those orders, which were passed under the provisions of this Act i.e. Act, 2021, therefore, order is ex facie bad. In support of his contention, he has placed reliance upon the judgment of Apex Court in the matter of Hanumat Singh v. Phuna; (1969) 0 Supreme (Raj) 208. 5. Per contra, Sri Mahesh Sharma, advocate holding brief of Sri G.S. Chauhan, learned counsel for the respondent opposed and submitted that execution case is not the continuance of suit proceeding, but it would be treated as fresh suit, therefore, it cannot be filed under the provisions of Old Act. 5. Per contra, Sri Mahesh Sharma, advocate holding brief of Sri G.S. Chauhan, learned counsel for the respondent opposed and submitted that execution case is not the continuance of suit proceeding, but it would be treated as fresh suit, therefore, it cannot be filed under the provisions of Old Act. He also invited attention of the Court to Section 34 of U.P. Act No. 16 of 2021, which provides that Rent Authority is having power of Civil Court for execution of order. In support of his contention, he has placed reliance upon the judgment of Apex Court as well as judgment of Full Bench of this Court in the matters of Karnataka Housing Board v. Nagamani; (2019) 0 Supreme (SC) 538, Infrastructure Pvt. Ltd and another v. Ambience Island Apartment Owners and others, (2021) 2 SCC 163 and Pratap Narain Agarwal v. Ragho Prasad and other, AIR 1970 ALLAHABAD 15. 6. I have considered the rival submissions advanced by learned counsel for the parties and perused the records, Act, 1972, Act, 2021 as well as judgments relied upon. 7. Section 36 of Act, 2021 is relevant to decide the present controversy and the same is being quoted below; ''36. Execution of order.-36. (1)The Rent Authority shall, on an application filed by any party, execute an order of a Rent Tribunal or any other order made under this Act, in such manner as may be prescribed, by- (a) delivering possession of the premises to the person in whose favour the decision has been made; or (b) attaching one or more bank accounts of the opposite party for the purpose of recovering the amount specified in such order; or (c) appointing any advocate or any other competent person including officers of the Rent Authority or local administration or local body for the execution of such order; or (d) attachment of salary and allowance of the opposite party; or (e) attachment and sale of the movable or immovable property of the opposite party (2) The Rent Authority may take help from the local police for execution of the final orders: Provided that no applicant shall obtain help of the police unless he pays such costs as may be decided by the Rent Authority. (3) The Rent Authority shall conduct the execution proceedings, in relation to its order or an order of a Rent Tribunal or any other order passed under this Act, in a summary manner and dispose of the application for execution made under this section within a period of thirty days from the date of service of notice on the opposite party.: 8. From perusal of Section 36(1) of Act, 2021, it is apparently clear that Rent Authority under this Act is having jurisdiction to execute only those orders, which are passed by Rent Tribunal or any other order made under this Act i.e. Act, 2021. 9. I have also perused the Section 34 of Act, 2021 relied upon by learned counsel for respondent and the same is quoted below; ''34. Powers of Rent Authority and Rent Tribunal.-(1) The Rent Authority and the Rent Tribunal shall, for discharging their functions under this Act, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act. No. 5 of 1908) for the purposes of,- (a) summoning and enforcing the attendance of any person and examining him on oath, (b) requiring the discovery and production of documents, (c) issuing commission for examination of the witnesses or documents, (d) issuing commission for local investigation, (e) receiving evidence on affidavits, (1) dismissing an application or appeal fer default or deciding it ex-parte; (g) setting aside any order of dismissal of any application or appeal for default or any other order passed by it ex-parte: (h) any other matter, which may be prescribed. (2) Any proceeding before the Rent Authority or Rent Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Indian Penal Code, 1860 (Act. No. 45 of 1860); and the Rent Authority and the Rent Tribunal shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (Act. No. 2 of 1974). No. 45 of 1860); and the Rent Authority and the Rent Tribunal shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (Act. No. 2 of 1974). (3) For the purposes of holding any inquiry or discharging any duty under this Act, the Rent Authority may- (a) after giving not less than twenty-four hours' notice in writing, enter and inspect or authorize any officer subordinate to it, to enter and inspect any premises at any time between sunrise and sunset, (b) by a written order, require any person to produce for its inspection such books or documents relevant to the inquiry, at such time and at such place as may be specified in the order (4) The Rent Authority may, if it thinks fit, appoint one or more persons having special knowledge of the matter under consideration as an assessor or valuer to advise it in the proceeding before it. (5) Any clerical or arithmetical mistake any order passed by the Rent Authority or any other error arising out of any accidental omission may, at any time, be corrected by the Rent Authority on an application received by it in this behalf from any of the parties or otherwise (6) The Rent Authority may exercise the powers of a Judicial Magistrate of the First Class for the recovery of the fine under the provisions of the Code of Criminal Procedure, 1973 (Act. No. 2 of 1974) and the Rent Authority shall be deemed to be a Magistrate under the said Code for the purposes of such recovery (7) An order made by a Rent Authority or an order passed in appeal under this Chapter shall be executable by the Rent Authority as a decree of a Civil Court and for this purpose, the Rent Authority shall have the powers of a Civil Court. (8) The Rent Authority may set aside or recall any order passed ex-parte if the aggrieved party files an application and satisfies it that the notice was not duly served or that he was prevented by any sufficient cause from appearing when the case was taken up for hearing. (8) The Rent Authority may set aside or recall any order passed ex-parte if the aggrieved party files an application and satisfies it that the notice was not duly served or that he was prevented by any sufficient cause from appearing when the case was taken up for hearing. (9) Save as otherwise expressly provided in this Act, every order made by the Rent Authority shall, subject to decision in appeal, be final and shall not be called in question in any original suit, application or execution proceedings.'' 10. No doubt, Rent Authority is having same power vested under the provisions of Code of Civil Procedure, 1908, but Section 34 of Act, 2021 shall always be read with Section 36 of Act, 2021, which clearly provides that Rent Authority shall execute an order of Rent Tribunal or any order made under this Act. In the present case, undisputedly, neither any order has been passed under the provisions of Act, 2021 nor proceeding was initiated under the provisions of Act, 1972. 11. In present dispute, application was filed under Section 21 of Act, 1972 before the Prescribed Authority defined in Section 2(e) of Act, 1972. Therefore, in light of Section 36 of Act, 2021, Rent Authority is having no jurisdiction to execute the order passed by Prescribed Authority under the provisions of Act, 1972. 12. For proper adjudication of this issue, I have also perused Section 46 of Act, 2021, which is being quoted below; ''46. Repeal and savings.-(1) The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) and, the Uttar Pradesh Regulation of Urban Premises Tenancy (Second) Ordinance, 2021 (U.P. Ordinance No. 3 of 2021) is hereby repealed. (2) Notwithstanding such repeal, all cases and other proceedings under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) pending, at the commencement of this Act, shall be continued and disposed of in accordance with the provisions of the said Act of 1972 as if that Act had continued to be in force and this Act had not been promulgated. (3) All cases and proceedings relating to any dispute between a landlord and a tenant under any law other than the law repealed by sub-section (1) pending before the Civil Court or in appeal before any other Court on the date of commencement of this Act, in respect of the premises to which this Act applies, shall be continued before such Court and disposed of in accordance with such applicable law. (4) Notwithstanding such repeal anything done or any action taken under the Uttar Pradesh Regulation of Urban Premises Tenancy Ordinance, 2021 (U.P. Ordinance No. 2 of 2021) and the Uttar Pradesh Regulation of Urban Premises Tenancy (Second) Ordinance, 2021 (U.P. Ordinance No. 3 of 2021) shall be deemed to have been done or taken under the corresponding provisions of this Act.'' 13. Section 46 of Act, 2021 clearly provides that all cases and other proceedings under the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) pending, at the commencement of this Act, shall be continued and disposed of in accordance with law with the provisions of the said Act of 1972 as if that Act had continued to be in force and this Act had not been promulgated, meaning thereby, eviction proceeding under the provisions of Act, 1972 shall also obtain its logical ending under the provisions of Act, 1972. 14. I have also perused the Section 6 of The General Clauses Act, 1897 and the same is being quoted below; ''6. 14. I have also perused the Section 6 of The General Clauses Act, 1897 and the same is being quoted below; ''6. Effect of repeal.-Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.'' 15. Section 6(c) of General Clauses Act, 1897 clearly provides that unless a different intention appears, repeal would not affect any right, privilege, obligation or liability acquired. In the present case, intention of legislation is very clear that Section 36 read with Section 46 of Act, 2021 is having power of execution of orders, which are passed under the provisions of Act, 2021, meaning thereby order passed under Act, 1972 shall be executed only under the provisions of Act, 1972. 16. I have also perused the judgments relied upon by learned counsel for the parties. While relying upon the judgements I have to see as to whether execution proceeding is in continuation of suit proceeding or a different fresh proceeding. In most of the judgement, Courts have taken the view that execution proceeding is a separate proceeding, but here the issue is different. Section 36 read with Section 46 of Act, 2021 clearly provides that Rent Authority is having power to execute those orders, which were passed by Rent Tribunal or under the provisions of Act, 2021 meaning thereby any other order passed in Act, 1972 cannot be executed under the provisions of Act, 2021. 17. Section 36 read with Section 46 of Act, 2021 clearly provides that Rent Authority is having power to execute those orders, which were passed by Rent Tribunal or under the provisions of Act, 2021 meaning thereby any other order passed in Act, 1972 cannot be executed under the provisions of Act, 2021. 17. Section 46 of Act, 2021 also clearly provides that old proceeding under Act, 1972 shall continue under the provisions of Act, 1972 upto the logical ending. 18. Therefore, judgements so relied upon are not relevant in the present controversy. 19. After considering the provisions of Act, 1972 as well as Act, 2021, this Court is of the firm view that any order passed under the provisions of Act, 1972 shall only be executed under the provisions of Act, 1972. 20. Therefore, under such facts and circumstances of the case, impugned order dated 21.12.2022 passed by Civil Judge, Mauranipur, Jhansi is hereby set aside. 21. With the aforesaid observations, writ petition is allowed. No order as to costs. 22. Matter is remanded back to Trial Court to decide the execution case on merits expeditiously in accordance with law, maximum within a period of three months from the date of production of certified copy of this order after providing opportunity of hearing to both sides.