Heard Shri R.C. Singh, learned counsel for the applicant.
This transfer application has been filed seeking transfer of a Rent Control Appeal No. 13 of 2017, (Badan Singh and another Vs. Kamal Singh Sareen), filed by the applicant a tenant of house No. 86 of 181, Collector Ganj, Hapur.
This rent control appeal arises out of a release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 and is directed against the judgment of the Prescribed Authority dated 03.11.2017, allowing the release application.
Learned Counsel referring to paragraph 14 of the affidavit filed in support of the transfer application, has alleged that the District Judge, Hapur, before whom the said appeal is pending, appears to be personally entrusted in the matter has he is retiring on 28.02.2018, the opposite party in the appeal, the landlord, has been bragging that he shall obtain a favourable order. Besides, the Presiding Officer has observed that he will decide the appeal, even though no arguments on the merits have been advanced, till date.
In my considered opinion, the primary question, which arises for consideration in this transfer application is whether Section 24 CPC can be invoked by the applicant for transfer of a rent control appeal.
The contention of counsel for the applicant is that this transfer application under Section 24 CPC is maintainable. He has relied upon the following three judgments in support of his contention:-
1. Ram Chandra Aggarwal and another Vs. The State of U.P. and another, 1966 SC 1888.
2. Union of India Vs. Rup Kishore and another, AIR 1967 Allahabad 504.
3. Dr. Ved Bhushan Vs. Dr. Jinendra Kumar Jain and others, 1996(2) ARC 370.
I have considered the submissions made by counsel for the applicant and perused the record including the three judgments cited.
The Apex Court in Ram Chandra Aggarwal (supra) has held that proceedings before the Civil Court arising out of a reference under Section 146(1) Cr.P.C. can be transferred invoking Section 24 CPC. This judgment, in my considered opinion, has no application in the case at hand because the appeal sought to be transferred does not arise out of a reference to the Civil Court, under Section 146 (1) Cr.P.C.
Even the judgment rendered by the Single Judge in Union of India Vs. Roop Kishore and another, does not help the applicant because therein, the provisions of the Arbitration Act, 1940 especially sections 31 and 41 thereof, were involved. It has been held that there is no indication in these sections that provisions of Section 24 CPC shall not apply to proceedings under the Arbitration Act, 1940, especially insofar as Sections 31 and 41 of the said Act are concerned.
The judgment in Dr. Ved Bhushan (supra) is no doubt directly in favour of the applicant and holds that the word 'appeal' occurring under sub-section 1 of Section 24 CPC is not confined to appeals arising out of civil suits only.
This judgment has also dealt with Sections 8, 9, 9A and 10 of the U.P. Act No. 13 of 1972, namely the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It holds that a transfer application under Section 24 filed before the High Court for transfer of a rent control appeal was maintainable.
Although, this judgment, as already observed above, is in favour of the applicant, this Court finds that this judgment does not refer to sections 34 and 38 of the said Act as also the Rules framed there under.
The said sections 34 and 38 are extracted below:-
"Section 34. Powers of various authorities and procedure to be followed by them.-(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) summoning and enforcing the attendance of any person and examining him on oath;
(b) receiving evidence on affidavits;
(c) inspecting a building or its locality or issuing commission for the examination of witnesses or documents or local investigation;
(d) requiring the discovery and production of documents;
(e) awarding, subject to any rules made in that behalf, costs or special costs to any parts or requiring security for costs from any party;
(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith;
(g) any other matter which may be prescribed.
(2) The District Magistrate, the Prescribed Authority or [Appellate or Revising Authority], while holding an inquiry or hearing [any 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 proceeding before him or it to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (Act No. XLV of 1860).
(3) Where any costs or other sum of money awarded under this Act by the District Magistrate or the Prescribed Authority or [the Appellate or Revisional Authority] remains unpaid, he or it may issue a certificate of recovery in respect thereof in the prescribed form, and any person in whose favour such certificate is issued may apply to the Court of Small Causes having jurisdiction under the Provincial Small Causes Courts Act, 1887 (Act No. IX of 1887) for recovery of the amount specified in the certificate. Such Court shall thereupon execute the certificate or cause the same to be executed in the same manner and by the same procedure as if it were a decree for payment of money made by itself in a suit.
(4) Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record:-
(a) in the case of the landlord or tenant, his heirs or legal representatives;
(b) in the case of unauthorised occupant, any person claiming under him found in occupation of the building.
(5) Where any person has been evicted from a building in pursuance of any order of the District Magistrate or the Prescribed Authority or made on appeal under this Act, the District Magistrate or the Prescribed Authority, as the case may be, may after service or publication of a notice in that behalf on such persons and in such manner as may be prescribed, remove or cause to be removed or dispose of, in such manner as may be prescribed, any specific property remaining on such building.
(6) Affidavits to be filed in any proceeding under this Act shall be made in the same manner and conform to the same requirements as affidavits filed under the Code of Civil Procedure, 1908 (Act No. V of 1908), and may be verified by any officer or other person appointed by the High Court under Clause (b) or by an officer appointed by any other Court under Clause (c) of Section 139 of the said Code.
(7) The District Magistrate, the Prescribed Authority or [the Appellate or Revisional Authority] shall record reasons for every order made under this Act.
(8) For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed.
Section 38. Act to override T.P. Act and Civil Procedure Code.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 (Act No. IV of 1882), or in the Code of Civil Procedure, 1908 (Act No. V of 1908)."
From a bare reading of Section 34 quoted above, it emerges that its sub-section 2 provides that a Court under the provisions of U.P. Act No. 13 of 1972 is deemed to be a Civil Court within the meaning of the said term, occurring in sections 345 and 346 of the Criminal Procedure Code.
Sub-section 6, thereof, also provides that affidavits to be filed in proceedings under Act no. 13 of 1972 must conform with the requirements of an affidavit provided under the Civil Procedure Code.
Section 38 provides that the provisions of the U.P. Act No. 13 of 1972 will prevail notwithstanding anything inconsistent contained in the Transfer of Property Act or the Civil Procedure Code.
Section 34(1)(g) and Section 34(8) of U.P. Act No. 13 of 1972 are also relevant for deciding the controversy at hand.
The import of Section 34(1) (g) is that an authority under the U.P. Act No. 13 of 1972 shall have the same powers, as are vested in the Civil Courts under the Code of Civil Procedure, with regard to any other matter, which may be prescribed. Such prescription, in my considered opinion, means prescribed under the Rules.
Section 34 (8), which has already been extracted above provides, with regard to proceedings under the Act, that the authorities shall have such powers as are prescribed and shall follow such procedure that may be prescribed.
A careful perusal of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 shows that Rules 16 to 19 and 22 to 34, have been framed in view of the powers conferred by Section 34 (1)(g).
The various rules referred to above do not provide for the application of Section 24 CPC to proceedings under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Moreover, a conjoint reading of above noted provisions leads to an irrepressible conclusion that the U.P. Act No. 13 of 1972 is a complete code in itself and only those provisions of the Civil Procedure Code, which have been made applicable, either under the Act or under the rules framed thereunder would be applicable to proceedings under the said Act No. 13 of 1972. Any other conclusion, in my considered opinion, would render Section 34 redundant because the said section as also section 38 have made applicable, only certain provisions of the Civil Procedure Code to the proceedings under the said Act.
In case the entire Civil Procedure Code were to be made applicable, there was no justification for incorporating either in the Act or the rules, the various provisions whereunder, an authority including an authority hearing an appeal or revision has been invested with some specific powers of a Civil Court under the Civil Procedure Code. Therefore, the power of a Civil Court conferred upon the authorities under the Rent Control Act, are only with regard to the matters specified under the various sections and the rules framed thereunder.
Since only some provisions of the Civil Procedure Code have been made applicable to the proceedings under the U.P. Act No. 13 of 1972 and Section 24 CPC is not one of them, the said section, in my considered opinion, cannot be applied to proceedings under the Act.
I, therefore, do not agree with the judgment in Dr. Ved Bhushan (supra) primarily, because it does not consider the import of sections 34, 38 and Rules, referred to above, while holding a transfer application under Section 24 CPC for transfer of an appeal under Section 22 of U.P. Act No. 13 of 1972 arising out of proceedings under Section 21(1)(a), to be maintainable.
This Court is also of the considered opinion that in case these provisions had been referred to, the outcome, in all likelihood would have been different.
In view of the foregoing discussion, this Court is constrained to hold that the U.P. Act No. 13 of 1972 is a complete code in itself and only such provisions of the Civil Procedure Code are attracted to proceedings there under which provisions have been made specifically applicable.
Section 24 CPC not having been made specifically applicable, it is not attracted in the proceedings at hand. For this reason alone this provision cannot be invoked for seeking transfer of a Rent Control Appeal.
The instant transfer application is therefore, found to be not maintainable and is dismissed, as such.
Order Date :- 22.02.2018 Mayank