S.K.Dhaon - - (1.) THE principal relief claimed in this petition is that the IIIrd Additional Civil Judge, Allahabad, may be restrained from hearing and disposing of an appeal pending before him under section 9 of the public premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Act). In proceedings under the Act the Estate Officer, in his capacity as the Prescribed Authority, directed the eviction of the respondent no. 2 from a certain accommodation. THE respondent no. 2 preferred an appeal before the District Judge, Allahabad, being Misc. Appeal No. 60 of 1986. Admittedly the appeal was preferred under section 9 of the Act. It is averred in paragraphs 4 and 5 of the petition that in the first instance the District Judge transferred the appeal to the Court of the Additional District Judge for hearing and disposal. Later on he passed another order transferring the appeal to the Court of the IIlrd Additional Civil Judge, Allahabad, for hearing and disposal.
(2.) SECTION 9 (1) of the Act is relevant and is extracted :- "An appeal shall lie from every order of the Estate Officer made in respect of any public premises under section 5 or SECTION 5-B or SECTION 5-C 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 of the district of not less than ten years' standing as the District Judge may designate in this behalf." The dictionary meaning of the expression " designate " is " to nominate or select for a duty, office purpose etc. " The other meaning is " to appoint ". As already stated the Disirict Judge nominated the IIlrd Additional Civil Judge to hear and dispose of the appeal. The argument that the District Judge alone is empowered to dispose of the appeal preferred under section 9 and he has no jurisdiction to transfer the same to any other officer is based on the premises that neither the provisions of the Code of Civil Procedure are applicable to the proceedings under the Act nor can resort be had to the provisions as contained in the Bengal, Agra and Assam Civil Courts Act, 1887. The argument proceeds on the assumption that the District Judge could exercise the power of transfer only under section 24 of the Code of Civil Procedure. The submission is not tenable. The power of the District Judge to nominate or appoint some other judicial officer to hear and dispose of the appeal is contained in SECTION 9 itself. It is, therefore, not necessary to travel outside the provisions contained therein. There is no enchantment in the word " designate ". The intention of the District Judge while nominating or appointing some other judicial officer has to be examined in each case. In this particular case it has already been shown that the District Judge, according to the petitioner itself transferred the appeal to the IIlrd Additional Civil Judge for hearing and disposal. By transferring the appeal for hearing and disposal the District Judge clearly intended to either nominate or select or appoint the IIlrd Additional Civil Judge for the purpose of hearing and disposing of the appeal. The designation of the IIlrd Additional Civil Judge is implicate in the words used by the District Judge while sending the case to him. In Dwarka Prasad v. Central Talkies Ltd. Kanpur, AIR 1956 All. 187 the controversy was whether the Additional District Magistrate (Rural Area) was competent under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 to grant permission to institute a suit for the eviction of a tenant. A suit for ejectment could not be instituted unless there existed the permission of the District Magistrate. Section 2 (d) of the aforesaid Act defined " District Magistrate " to include an officer authorised by the District Magistrate to perform any of his functions under the said Act. The District Magistrate passed an order : " Transfer to Additional District Magistrate (R. A.) for disposal ". One Sri B. P. Singh Seth was the Additional District Magistrate (Rural Area). He granted the permission by an order. One of the learned Judges constituting the Division Bench (Brijmohan Lal, J.) held when the District Magistrate sent the case to Sri B. P. Singh Seth " for disposal " obviously he meant to authorise him (Sri Seth) to either grant the permission or to refuse it. When authorising Sri Seth to do so, the District Magistrate was -certainly authorising Sri Seth to perform his functions under the Act. The learned Judge emphasised that the Rent Control Act did not prescribe any special formula for authorisation nor was there any special form prescribed for that purpose. The inference whether authorisation had been made or not was to be drawn from the established facts The matter went up to the Supreme Court in the case of Central Talkies Ltd., Kanpur v. Dwarka Prasad, AIR 1961 SC 606 = 1961 AWR 238. The view of Brijmohan Lal, J. was upheld in paragraph 11 in words : " By the act of transferring the case to the Additional District Magistrate, the District Magistrate must be deemed to have authorised him to exercise his powers under section 3 of the Eviction Act. " In the instant case too, the Act does not prescribe any special formula for designation, nor is there any special form prescribed for this purpose. The conclusion, therefore, is inevitable that by transferring the appeal for hearing and disposal, the District Judge exercised the power of designation as vested in him in Section 9 of the Act.
(3.) IT is not the case of the petitioner that the Officer presiding over the Court of the Illrd Additional Civil Judge is not a Judicial Officer of 10 years' standing. However, to satisfy myself I made an enquiry from the Registry and I am informed that the gentleman, who is at the moment presiding over the Court of the Illrd Civil Judge, was appointed as a Munsif some time in January, 1977. Therefore, in January 1987, he became an Officer of 10 years' standing. Reliance is placed by the learned counsel upon Rule 9 framed under the Act. Sub-rule (2) of Rule 9 provides that on receipt of the appeal and after calling for and perusing the record of the proceedings before the estate officer, an appellate officer shall appoint a time and place for the hearing of the appeal and shall give notice thereof to the estate officer against whose order the appeal is preferred, to the appellant and to the head of department or authority in administrative control of the premises. This Rule merely lays down the procedure to be followed by the appellate officer. IT does not say that the District Judge alone will act as an appellate officer. I have already indicated that in Section 9 it is envisaged that either the District Judge or any other judicial officer designated by him in that behalf shall be considered to be an appellate officer. Reliance has been placed upon two decisions. The first is the case of Hargovind Sharma v. Divisional Engineer, Railway Administration, South Eastern Railway, Bilaspur, AIR 1966 M.P. 7. In this case revision under section 115 of the Code of Civil Procedure was preferred against the order of the District Judge acting as an appellate officer under section 9 of the Act. While deciding the question as to whether a revision under section 115 of the Code was maintainable, the learned single Judge, who decided the revision application, held that under section 9 of the Act the District Judge was acting as persona designata and was, therefore, not a subordinate court within the meaning of Section 115 of the Code.;