SHAKUNTALA DEVI Vs. FOURTH ADDL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India arising out of proceedings under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U. P. Act XIII of 1972, hereinafter referred to as the Act. The petitioner is the landlady. The property in dispute is house No. 191, Rajendra Nagar, Nauchandi Ground, District Meerut. Opposite party No. 3 is a tenant. The petitioner filed an application under Section 21 of the Act for eviction of the opposite party No. 3 on the ground of bonafide need of the petitioner. In res pect of the premises in dispute opposite party No. 3 filed a suit No. 420 of 1977 with the allegations that the petitioner had taken some portion of the accom modation in the tenancy of the opposite party No. 3 for the purposes of the marriage of the daughter of the petitioner on 24th March, 1977. After the completion of the marriage the said portion was not returned to the opposite party No. 3 and as such the suit was filed for recovery of possession of the accommodation which was taken by the petitioner in her daughter's marriage. The allegations in the said suit were, however, denied by the petitioner. The suit was decreed by the trial Court. Against the said judgment an appeal was filed before the District Judge, Meerut. The application under Section 21 of the Act filed by the petitioner was pending before the prescribed authority and in the said proceeding opposite party No. 3 filed an application to the effect that the proceedings in the case be stayed in view of the pendency of the appeal in suit No. 420 of 1977. This application was rejected by the prescribed authority by an order dated 26th February, 1980. Against the order of the prescribed authority dated 26th February, 1980 opposite party No. 3 filed a revision before the District Judge, Meerut. The revision was allowed by the IVth Additional District Judge, Meerut on 3-5-1980 and the proceedings in the application under Section 21 of the Act were stayed by the revisional Court under Section 131 C. P. C. till the disposal of the appeal arising out of suit No. 420 of 1977 pending in the Court of Ist Civil judge, Meerut. The order dated 3-5-1980 has been challenged by the petitioner by means of the present petition. Learned counsel for the petitioner has urged that no revision lay under Section 115 C. P. C. against the order passed by the prescribed authority on 26th February, 1980 under its inherent powers and as such the impugned order dated 3-5-1980 is wholly without jurisdiction. In order to consider this question it is necessary to consider certain relevant provisions of the Act. The Act provides for the regulation of letting, rent and eviction of tenants from certain classes of buildings situated in urban areas and in respect of matters connected therewith. The word 'prescribed authority' has been defined in Section 3 (e) which means a Civil Judicial Officer, or Judicial Magistrate authorised by the District Judge to exercise, perform and discharge all or any of the powers, functions and duties of the prescribed authority under the Act. The prescribed authority is, therefore, an officer specially authorised by the District Judge. Section 18 of the Act provides cases where a revision would lie against an order passed by the District Magistrate under Sections 16 and 19 of the Act. Section 22 provides for an appeal by an aggrieved person against an order passed under Section 21 or Section 24 of the Act passed by the prescribed authority. The relevant portion of Section 34 sub-clause (1) of the Act is as follows: " (1) The District Magistrate, the prescribed authority or any appellate or revising authority shall for the purposes of holding any inquiry or hearing any appeal or revision under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit in respect of the following matters, namely,- (a)----------------------- (b)----------------------- (c)----------------------- (d)----------------------- (e)----------------------- (f)----------------------- (g) any other matter which may be prescribed. " Sub-section (2) of the said section is as follows: "the District Magistrate, the prescribed authority or appellate or revising authority, while holding an inquiry or hearing an appeal or revision under this Act, shall be deemed to be a Civil Court within the meaning of Sections 345 and 346 of Code of Criminal Procedure, 1973 and any proceedings before him or it to be a judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code (Act No. XLV of 1960 ). " Rule 22 of the Rules framed under the Act has been made under Section 34 (1) (g) of the Act and it enumerates the powers of the District Magistrate, the prescribed authority, appellate authority and the revising authority. From the above provisions, it is clear that the Act and Rules framed under the Act prescribe a complete code for the determination of matters provided under the Act. Only specific powers have been given to the authorities under the Act as prescribed by Section 34 (1) (a) to (f) and under Rule 22 of the Act. Only specific provisions of the Code of Civil Procedure have been made applicable to the proceedings under the Act. Section 115 of the Code of Civil Procedure cannot be invoked to challenge the orders made under the Act. The position, however, might have been different if the authorities concerned were directed by the Act and Rules to follow the procedure in a manner provided in the Code of Civil Procedure, 1908 as was the case in as new Drums (Private) Ltd. v. Maharashtra State Finance Corporation A. I. R. 1972 S. C. 801. Where the Supreme Court had occasion to consider the expression' in the manner provided in the Code of Civil Procedure The Supreme Court held that the word "manner" means method of procedure and to provide for an appeal is not provide for a mode of procedure. In the instant case the legislature specifically omitted to use this expression and enumerated the specific powers of the authorities under the Act. In my opinion, therefore, the provisions of Section 115 Code of Civil Procedure cannot be made applicable to these proceedings. Wherever the legislature thought that the right of revision or appeal is to be granted to an aggrieved party, it has been provided under the Act. There is yet another aspect of the matter. Section 34 sub-clause (2) quoted above lays down that the authorities exercising powers under the Act shall be deemed to be a civil Court only for the purposes of Sections 345 and 346, Code of Criminal Procedure, 1973. This clause, therefore, makes it clear that the authorities under the Act were not to be deemed to be a civil Court for other purposes. In Hira Lal v. Ranjit Singh 1976 A. W. C. 396 a Division Bench of this Court has held that the prescibed authority is not a Civil Court as contem plated under the Code of Civil Procedure. The Division Bench further held that Section 21 of the Act cannot be deemed to be a suit within the meaning of the Code of Civil Procedure so as to make an order passed under Section 21 revisable under Section 115 of the Code. In Ram Chandra v. State of U. P. , A. I. R. 1966 S. C. 1888 the Hon'ble Supreme Court accepted the dictum of the Full Bench of our Court in Chatur Mohan v. Ram Behari 1964 All. L. J. 256 = A. I. R. 1964 All. 562 (F. B.) and laid down the distinction between a "persona designata and a legal tribunal. Madholkar, J. speaking for the Court opined as follows: "3. In Balkrishan Udayar v. Vasudeva Ayyar 44 Ind, App 261= A. I. R. 1971 P. C. 71 Lord Atkinson has pointed out the difference between a persona designata and a legal tribunal. The difference is this that the "determinations of a persona designata are not to be treated as judgments of a legal tribunal". In the Central Talkies Ltd. v. Dwarka Prasad 1961-3 S. C. R. 495 at pp. 500-501 = A. I. R. 1961 S. C. 606 at pp. 608-609 this Court has accepted the meaning given to the expression persona designata in Osborn's Concise Law Dictionary, 4th Edn. , p. 263 as "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". Section 146 (1 ). Cr. P. C empowers a Magistrate to refer the question as to whether any, and if so, which of the parties was in possession of the subject-matter of dispute at the relevant point of time to a Civil Court of competent jurisdiction. The power is not to refer the matter to the presiding Judge of a particular Civil Court but to a Court. When a special or local law provides for an adjudication to be made by a consti tuted Court, that is, by a Court not created by a special or local law but to an existing Court-it in fact enlarges the ordinary jurisdiction of such a Court. Thus, where a special or local statute refers to a constituted Court as a Court and does not refer to the presiding officer of that Court the reference cannot be said to be to a persona designata This question is well settled. It is, therefore, unnecessary to say anything more on this part of the case except that cases dealing with the point have been well summarised in the recent decision in Chatur Mohan v. Ram Behari (supra ). " The question, therefore, which has to be determined in view of the dictum laid down by the Supreme Court is as to whether the prescribed authority is described as an individual, as opposed to a person ascertained as a member of a class or as filling a particular character. In the present Act the prescribed authority has been specially defined in Section 3 (e) as I have already mentioned above. It means a Civil Judicial Officer, specially authorised by the District Judge to exercise, perform and discharge all or any of the powers, functions and duties of the prescribed authority under the Act. The legislature described the prescribed authority as an individual, as opposed to a member of a class because otherwise it was not necessary to provide for an authority by the District Judge. In view of the above specific provisions of this Act, therefore, in my opinion the prescribed authority is a persona designata. This view also finds support from the decision of D. N. Jha, J. in M/s. Gur Narain Jagat Narain v. Motor and General Sales 1977 U. P. R. C. C. 58 wherein it has been held that the prescribed authority is not a Court nor can it be deemed to be a Court and the authority is only a persona designata Section 38 of the Act also throws light on this question which clearly provides that the provisions of this Act shall have effect notwithstanding anything inconsistent contained in the Code of Civil Procedure The entire provisions of the Code of Civil Procedure were, therefore, not applicable to proceedings under the Act. Since the prescribed authority is a persona designata the re visional power prescribed under Section 115 of the Code of Civil Procedure could not be invoked. In my opinion, therefore, the submission made by the learned counsel for the petitioner is well founded and no revision lay against the order passed by the prescribed authority under Section 115 of the Code of Civil Procedure. Learned counsel for the opposite party No. 3 has vehemently contended that the prescribed authority had passed the order under Section 151 Code of Civil Procedure which power it had under Rule 22 of the Act. and as such the order was revisable under Section 115 of the Code of Civil Procedure. In support of this argument he has relied upon two cases, namely, Kalipada Dinda and others v. Kartick Chandra Hait and others A. I. R. 1977 Cal. 3 and Noor Mohammad v. Suleman Khan A. I. R. 1943 Oudh 35. The principles laid down in these cases do not apply at all to the present case as I have already held that Section 115 of the Code of Civil Procedure is not applicable to orders passed under the Act and as such no assistance can be taken by the opposite party No. 3 on the principles laid down in these cases. In the result, the petition is allowed. The order of the IVth Additional District Judge, Meerut dated 3-5- 1980 is quashed and that of the prescribed authority dated 26th February, 1980 is restored, in the circumstances of the case, parties are directed to bear their own costs. .