AWADH KUMAR PRADHAN Vs. FIRST CIVIL JUDGE KANPUR

JUDGEMENT

(1.) Respondent No. 2 Smt. Sarla Devi, is the landlord of an accommodation of which the petitioner was the tenant. Respondent No. 2 made an application under Section 21 of U. P. Urban Building (Regulations of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as the Act) release of the aforesaid accommodation in his favour on the ground that she needed it bonafide for her own use. This application was contested by the petitioner and was dismissed by the Prescribed Authority. On an appeal by respondent No. 2, however, the application for release was allowed by the District Judge on 16th November, 1981. The order of the District Judge dated 16th November, 1981 was challenged by the petitioner before the Court in a writ petition, which was however, dismissed on 15th January, the petitioner not having vacated the accommodation in question in pursuance c the order of release passed by the District Judge, respondent No. 2 made an application for enforcement of the said order under Section 23 of the Act. 1 application was made before the First Additional Civil Judge, Kanpur as Prescribed Authority on 18th January, 1982. At this place it may be pointed out that even the application under Section 21 of the Act had been made before the First Additional Civil Judge, Kanpur, as Prescribed Authority, As is apparent from the copy of the order dated 27th January, 1982 filed as Annexure-2to the counter-affidavit, the First Additional Civil Judge, Kanpur, addressed a communication to the District Judge stating that for certain reasons he did not want to decide the case arising out of the applica tion aforesaid and that consequently it may be transferred to some other Court of competent jurisdiction. The District Judge by an order dated 21 January, 1982, transferred the case to the Court of First Civil Judge, Kan pur a copy whereof has been filed as Annexure 3 to counter-affidavit, perusal indicates that the District Judge invested the First Civil Judge, Kanpur, with the power of Prescribed Authority under the Act for disposal of this case. The District Judge had in the meantime by an order dated 21st July, 1981, made reallocation of work of various Prescribed Authorities in the district of Kanpur. The District of Kanpur seems to have, for the purposes of conferring powers on various officers of Prescribed Authority under the Act, been divided in various chaks. The accommodation in question, fails within chak No. 105. The First Additional Civil Judge, Kanpur, was the Prescribed Authority in respect of Chak No. 105 when the application for release under Section 21 of the Act had been filed. On account of reallocation of work in pursuance of the order of the District Judge dated 21st July, 1981, which was made effective from 25th July, 1981, Munsif City, Kanpur, was made the Prescribed Authority in respect of buildings falling within chak No, 105. An objection was filed by the petitioner before the First Civil Judge, Kanpur, asserting that the application under Section 23 was not maintain able having not been filed before the Munsif City, Kanpur, who was the Prescribed Authority in respect of buildings falling within chak No. 105 in pursuance of the reallocation of work by the District Judge by his order dated 21st July, 1981. This objection was, however, repelled by the First Civil Judge, Kanpur, on 1st February, 1982. It is this order which is sought to be quashed in the present writ petition. It was urged by counsel for the petitioner that since it was the Munsif City who was the Prescribed Authority on 18th January, 1982, when the application under Section 23 of the Act was filed by respondent No. 2 and not the First Additional Civil Judge, the presentation of the application under Section 23 was defective having been made before an officer who had no jurisdiction to entertain it and consequently even the First Civil Judge, Kanpur, to whom the case was transferred by the District Judge on 28th January, 1982, had no jurisdiction to entertain the said application. Counsel for the petitioner placed reliance on various decisions starting from Ledgard v. Bull (13 Indian Appeals, p. 134), and ending with Raja Soap Factory v. S. P. Shantharaj, ( A. I, R. 1965 S. C. 1449) where it was held that the jurisdiction to try a suit, appeal or proceeding by a Court which such suit, appeal or proceeding had been transferred under Section 24 of the Code of Civil Procedure arises only if the suit, appeal or proceeding had been properly instituted in a court competent to enter tain the same, If the suit, appeal or proceeding had not been instituted in a Court having jurisdiction to entertain it, the order of transfer passed under Section 24 could not remove the defect and clothe the transferee Court with the power to try the suit, appeal or proceeding so transferred. Suffice it to point out so far as this submission is concerned that the Parliament has since intervened and inserted sub-section (5) in Section 24 in the Code of Civil Procedure by G. P. C. (Amendment) Act, 1976, which provides that a suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. Counsel for the petitioner then urged that since Section 24 of the Code of Civil Procedure had not been made applicable to the proceedings under the Act the insertion of sub-section (5) therein as aforesaid was immaterial to the facts of the instant case. For the respondent No. 2, on the other hand, it has been urged that the matter being one of procedure the purpose of which is to subserve that ends of justice and not to hamper it on mere technicalities even if Section 24 had not been applied to the proceedings under the Act, the principle contained in its sub-sub-section (5) being a salutary one deserves to be applied to such a situation as arose in the instant case. Having considered the respective submissions made by counsel for the parties in this behalf. I am of opinion that sub-section (e) of Section 3 of the Act which contains the definition of the term "prescribed Authority" contains a provision almost similar to sub-section (5) of Section 24 of the Code of Civil Procedure. The term "prescribed Authority" has been denned in sub section 3 (e) of the Act as follows: "prescribed Authority' means a civil Judicial Officer or Juglcial 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 this Act, and different such officers may be so authoris ed in respect of different areas or cases or classes of cases, and the District Judge may recall any case from any such officer and may transfer it for disposal to any other such officer. " Its persual indicates that the jurisdiction to confer the power of a Prescribed Authority has been conferred on the District Judge. In other words the source of power of an officer to act as a Prescribed Authority under, the Act is the order that may be passed by the District Judge in this behalf. Section 3 (e) of the Act as is clear from its plain language inter alia empowers the District Judge to authorise any officer to exercise, perform and discharge all or any of the powers, functions and duties of the Prescribed Authority even in respect of "cases", In view of Section 13 of the U. P. General Clauses Act the word 'cases' in plural can be read in singular also. Conse quently the District Judge can authorise a particular officer to exercise, per form and discharge all or any of the powers, functions and duties of the Prescribed Authority in respect of even a single case specified in the order passed by him in this behalf. This power is, on the face of it, distinict from the power of the District Judge to recall any case from any such officer and transfer it for disposal to any other such officer. There can be no doubt that the power to authorise a particular officer to exercise, perform and discharge all or any of the powers, functions and duties of the Prescribed Authority in respect of a specified case can be exercised by the District Judge only if such case has already been instituted. This power is apparently distinct from the power vis-a-vis "classes of cases". Authorisation in respect of "classes of cases" can be made by just enumerating the categories of cases which are to fall within a particular class. It is not necessary that cases falling within the various classes so categorised should also have already been ins tituted before such authorisation is made. If a case has been instituted before a proper Prescribed Authority and in respect of that case jurisdiction is sought to be conferred on a different Prescribed Authority, the District Judge can achieve the object by recalling the case from the file of that Prescribed Authority and transferring it to some other Prescribed Authority in exercise of the power conferred in this behalf by the law Clause of Section 3 (e) of the Act. In this background, I am of opinion, that when powers conferred on the District Judge to authorise a particular officer to exercise, perform and discharge all or any of the powers, functions and duties of the Prescribed Authority in respect of a specihed case it was apparently intended to be a power distinct and different from the power conferred on him by the last clause of Section 3 (e) of the Act namely the power to recall any case from one Prescribed Authority and transfer it for disposal to some other Prescribed Authority. Any other interpretation is, in my opinion, likely to render the words "or cases" in Section 3 (e) of the Act a mere surplusage. No such intention can be attributed to the legislature. Obviously, therefore, by using the words ''or cases" in Section 3 (e) power was sought to be conferred on the District Judge, similar to the power con tained in sub-section (5) of Section 24 of the Code of Civil Procedure to nullify the effect of an irregular presentation of an application under the Act. Indeed in exercise of the power conferred on him by Section 3 (e) of the Act the District Judge can go a step further and authorise the same officer before whom an application has been irregularly presented to act as Prescribed Authority in respect of the said application, unless there is any other impediment in doing so. In this view of the matter, I am of opinion, that the order of the District Judge dated 28th January, 1982, whereby the First Civil Judge, Kanpur, was invested with the power of Prescribed Autho rity under U. P. Act XIII of 1972 for disposal of this case" conferred juris diction on the First Civil Judge, Kanpur, before whom the application under Section 23 of the Act is at present pending to dispose of the said application. There is another way of looking at it. Once the District Judge is held to have jurisdiction to confer the power of a Prescribed Authority on a parti cular officer even in regard to a specified case, there can be no manner of doubt that, at any rate, with effect from the date on which an order has been passed by the District Judge in this behalf, the officer who is invested with such power gets the jurisdiction to dispose of that case, Proceedings under Section 23 are proceedings in the nature of execution of an order passed under Section 21 of the Act. If authority were needed for this proposition, reference may be made to K. D. Dwivedi v. Prescribed Authorit (1975 A. L. J. 75) Gajadhar Singh v. Hanwant Singh, ( A. I. R. 1977 All. 137) was a case where a decree had been passed by the District Judge, Bhadohi. Subsequently on account of the amalgamation of the State of Banaras with the State of Uttar Pradesh, the jurisdiction which was exercisable by the Court which had passed the decree, as aforesaid, stood vested in the Court of Munsif, Gyanpur. An application for execution of the decree passed by the District Judge, Bhadohi, was, however, made before the Civil and Sessions Judge, Gyanpur, instead of the Court of Munsif Gyan pur, who apparently did not have any jurisdiction to entertain the said execution application. That application was on a later date transferred to the Court of Munsif, Gyanpur. The question which came up for consideration in Gajadhar Singh's case (supra) was whether the execution application was maintainable, the same having been filed before a Court which had no juris diction to entertain it, It was held that since the execution application stood ultimately transferred to a Court which had jurisdiction to deal with it, the mere fact that it had been filed in a Court which had no jurisdiction and came to the Court which had jurisdiction by transfer in an irregular manner, was not sufficient to hold that the execution application was not maintainable and deserved to be dismissed on that ground alone. In my opinion, an ap plication under Section 23 of the Act being an application in the nature of an execution application, the principle contained in Gajadhar Singh's case (supra) can be applied to the facts of the instant case also. It is thus apparent that, at any rate, with effect from 28th January, 1982 the First Civil Judge, Kanpur has jurisdiction to entertain and dispose of the application under Section 23 filed by respondent No. 2 in view of the order of the District Judge passed in this behalf on that date. Since no limitation is prescribed for making an application under Section 23, in my opinion, there is now no impediment in the said application being disposed of by the First Civil Judge, Kanpur. In this view of the matter, the impugned order passed by the First Civil Judge, Kanpur does not suffer from any such error which may jus tify interference under Article 226 of the Constitution. In the result the writ petition fails and is dismissed and the interim order dated 11th February, 1982 is vacated. la the circumstances of the case, however, the parties shall bear their own costs. .