Bapna, Actg. C.J. - (1.) THIS is a revision in execution proceedings and the facts which have given rise to the petition are as follows: - Bohra Abdul Hussain, petitioner was a tenant of Pt. Chhaganlal Chaturvedi in respect of a shop situated at Kotah Under sec. 7(2) of the United State of Rajasthan Buildings (Lease and Rent Contral) Ordinance, 1948, (Ordinance No. XXII of 1948) (hereafter called the Ordinance), the landlord applied to the Controller for eviction of the tenant. The Controllor (the Collector being such officer under the Ordinance) made an order on 8th November, 1950, to the tenant to hand over the building to the landlord. An appeal was filed by the tenant to the Divisional Commissioner and it was heard by the Additional Commissioner. He dismissed the appeal by an order of 30th April, 1951.
(2.) IT may be mentioned that in the interval the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950) came into force on 28th November, 1950. After the dismissal of the appeal, the landlord applied to the Court of Munsif, having jurisdiction for execution of the order of eviction. This application was made on 14th August, 1951. Bohra Abdul Hussain had, however, on 2nd July, 1951, preferred a review application. The Additional Commissioner allowed the review on 17th April, 1952 and the appeal was reheard later by the Commissioner. He allowed the appeal by judgment of 29th October, 1952, and remanded the case to the Court of Collector (Controller) to inspect the site and make such enquiries as may be deemed necessary, particularly regarding the shops belonging to the appellants, which were situated close to the shop in dispute, and regarding the chances of his being able to get any of these for his own business, and then to decide the case. While the review was pending, the judgment-debtor brought a stay order in respect of execution proceedings. On behalf of the decree-holder, it was urged that the Additional Commissioner had no power to entertain review and, therefore, the executing court was not bound to comply with the said order. The learned Munsif came to the conclusion that the Additional Commissioner had no power of review after he had given a judgment in the appeal. He accordingly held the stay order to be nullity and directed execution proceedings to be continued and issued notices to the judgment-debtor why the execution should not be carried out. The judgment-debtos submitted an objection on 5th May, 1952, that the Ordinance having been repealed by Act (No. XVII of 1950) the previous order of the Controller could not be executed by the Munsif. The judgment-debtor also filed an appeal against the order of the Munsif dated 9th April, 1952, by which he held the stay order to be nullity. Before the District Judge, certain other points were also canvassed. The learned District Judge concurred with the Munsif and the appeal was dismissed. The judgment debtor filed a revision which came before a Single Judge of this Court and it was referred to a Division Bench by order of 6th September, 1954. Learned counsel for the petitioner has contended: - That the power to hear an appeal was conferred upon the Commissioner against the order of the Controller directing eviction and the order of the Additional Commissioner disposing of the appeal on 30th April, 1951. was invalid and, therefore, the appeal remained pending till the Commissioner on rehearing the same allowed the appeal on 29th October, 1952. By this order he set aside the order of the Controller and, therefore, there was no valid order existing now which may be put in execution. The next point urged was that the Ordinance (No. XXII of 1949) of the United State of Rajasthan was repealed by the Rajasthan Act (No. XVII of 1950) and sec. 9 of the Ordinance authorising the Munsif to execute the order of the Controller stood repealed and, there was no forum left where the order of the Controller dated 8th November, 1950, could be executed. On behalf of the respondent, it was urged that the Additional Commissioner had the power to dispose of the appeal but had no power to review his order and, therefore, all subsequent proceedings after the disposal of the appeal on 30th April, 1951 were not competent and that the view taken by the learned Munsif and the lower court was correct. According to the scheme of the United State of Rajasthan Ordinance, sec. 7 provides for an order by the Controller for eviction in certain cases, and an appeal against such order is to be made to the Commissioner of the Division under sec. 12 of the Ordinance. When the Rajasthan Territorial Divisions Ordinance, 1949 (Ordinance No. XX of 1949) came into force, provision was made for appointment of the Additional Commissioner and the relevant sections are 8 and 9: "Sec. 8"; "The Government shall appoint in each division a Commissioner and may appoint as many Additional Commissioner as may be necessary in a division or in two or more divisions or parts thereof combined." "Sec. 9"; "A Commissioner shall, within his division, exercise such powers and discharge such duties as may be conferred and imposed on him by any Saw for the time being in force in Rajasthan or as may be delegated to him from time to time by the Government. (2) An Additional Commissioner shall within the area for which he has been appointed exercise such powers and perform such duties of a Commissioner in such cases or matter or class of cases or matters as the Government or, in the absence of orders from the Government, the Commissioner of the division may direct. (3) Every Additional Commissioner, while exercising any powers or discharging any duties under sub-sec. (2), shall be deemed to be the Commissioner of the area for which he has been appointed." The United State of Rajasthan Ordinance continued in force by sec. 3 of the Rajasthan Administration Ordinance (No. 1 of 1949) and the power to hear an appeal which was conferred on the Commissioners by sec. 12 of the Ordinance continued to be so vested in the Commissioner. The same power could be exercised by the Additional, Commissioner if he was so authorised by the Govt or the Commissioner of his Division. This authorisation is not disputed but the argument urged on behalf of the petitioner was that the Commissioner was the persona designata under sec. 12 of the Ordinance and that power could not be delegated to the Additional Commissioner. We, however, do not agree with this contention. Certain powers were conferred upon the Controller and the appeal was provided by virtue of his office on the Commissioner of the Division. Under sec. 9(2) the Additional Commissioner could exercise the powers of the Commissioner, if so authorised by the Government or the Commissioner and it was laid down in sec.3 that in exercise of such powers the Additional Commissioner was to be deemed to be the Commissioner of the area for which he had been appointed. In disposing of the appeal, therefore, the Additional Commissioner was to be deemed to be the Commissioner and, therefore, the Additional Commissioner had not acted in excess of the jurisdiction conferred upon him by law. The appeal, therefore, came to be disposed on 30th April, 1951, when the Additional Commissioner rejected the same. The first contention that the appeal continued to remain pending till it was disposed of by the Commissioner on 29th October 1952, has no force. It was next contended that if the appeal could be taken to be rightly disposed of on 30th April, 1951, the Additional Commissioner had still power to grant review, which he did and then the appeal came to be reheard by the Commissioner and the final order of 29th October, 1952, by the Commissioner set aside the order of eviction of the trial court and there was no existing order of eviction which could be executed by a court. The argument advanced by the learned counsel for the petitioner is that sec. 18 of the Ordinance made the provision of the Code of Civil Procedure applicable. The power to review an order was one of the provisions of the Code of Civil Procedure and the power to review could thus be exercised by the Additional Commissioner. Various authorities were cited in which it has been held that where the provisions of the Civil Procedure Code are applicable, as for example, in relation to the U.P. Encumbered Estates Act, Provincial Insolvency Act, the Land Requisition Act, review petitions could be entertained. Krishna Gopal vs. Ospal Singh (1);Bhagwan Bakhsh Singh vs. Sardar Singh(2); Pasumarti Satyanarayana Rao vs. Official Receiver of West Godavari (3); The Official Receiver, Tanjore vs. B.S. Nataraja Sastrigal (4); Munnulal vs. Kunj Beharilal (5) and M.S. Pushkaran vs. V.S. Ramkrishnan Nair (6). It is not necessary to go into, detail into any of these cases for the provision in the Ordinance is different from the provisions in the laws which came for review in these cases. In the Ordinance, the relevant section is 18 and is as follows: - "The Government may make rules to give effect to the provisions of this Ordinance and such rules shall be published in the United State of Rajasthan Gazette from time to time. Until, however, such rules are framed and so published the Controllers while performing their functions and the Divisional Commissioners while acting as appellate authorities under this Ordinance, shall observe as may be the provisions of the Code of Civil Procedure for the time being in force in the United State of Rajasthan. The manner in which notices and orders under this Ordinance shall be given and served shall also be the same as prescribed in the said Code. A careful consideration of the language of sec. 18, makes it clear that the Government was authorised to make rules to give effect to the provisions of the Ordinance and that until such rules were made and published the Divisional Commissioners while acting as appellate authorities were directed to observe the provisions of the Code of Civil Procedure. It is not as if the provisions of Code of Civil Procedure were made applicable to all proceedings under the Ordinance but the intention was that such provisions of Code of Civil Procedure which may be necessary to give effect to the provisions of the Ordinance may be applied by the appellate authority. We have, therefore, to look if the provision of the Ordinance itself confer any power of review. If that power is conferred then the provisions of the Civil Procedure Code relating to review can be made applicable but if the Ordinance does not confer such powers then the provisions relating to review cannot be held to be applicable. The right of a landlord to evict the tenant, according to the Ordinance, is restricted by various conditions imposed on the landlord. The landlord has, however, been allowed a cheaper remedy in the case of his desire to evict the tenant under certain circumstances by an application to the Controller instead of restoring to a civil suit. The Controller is authorised to make an order directing the tenant to put the landlord in possession of the building, if he is satisfied that the claim of the landlord is bonafide. Sec. 9 provides for the execution of the order of eviction by the District or the Additional District Munsiff or other Court notified by the Government in that behalf, as if the order was decreed or passed by that court. Sec. 12 provides for the appeals and the provision is important: - (1) Any person aggrieved by an order of the Controller may, within fifteen days from the date on which the order is communicated to present an appeal in writing to the Commissioner of the Division. (2) The Commissioner of the Division concerned shall then send for the record of the case from the Controller and after persuing such record and, after making such further inquiry as he thinks fit either personally or through the Controller, shall decide the appeal. (3) The decision of the Commissioner of the Division concerned and subject only to such decision, an order of the Controller shall be final. A provision similar to that in sec. 12 came for examination by this Court in Nathulal vs. Collector, Sawai Jaipur (7) and it was held that the only statutory right given to a party aggrieved by the order of the Controller was by way of appeal. The order of the appellate authority, whatever it may be, was final and there was no provision laid down for presenting a review application. If sec. 12 did not thus impart a provision of review and there is no other provision directly made for entertaining a review, the provision of sec. 18 cannot purport to create a right which is not otherwise found in the Ordinance. The rules to be made were to give effect to the provision of the Ordinance and not to confer or create new rights not already provided in the Ordinance. The direction in the next sentence for observations of the provisions of the Civil Procedure Code in the matter of service of notices till the rules were to be framed, clearly indicates that only such provisions of the Code of Civil Procedure were to be observed as may purport to give effect to the provisions of the Ordinance. As stated earlier since no right of review was to be found in the ordinance, the direction for observation of such provisions of the Civil Procedure Code as may give effect to the provisions of the Ordinance would not confer on the Commissioner the power to review his order. The learned Munsif and the District Judge were, therefore, right in holding that the power of review was not conferred on the Additional Commissioner and, therefore, the subsequent proceedings and the interim stay order granted by the Additional Commissioner were not valid.
(3.) THE last point urged by the learned counsel for the petitioner was that the Rajasthan Act repealed the United State of Rajasthan Ordinance. In the Rajasthan Act there is no provision for approaching the Controller for an order of eviction and remedy for eviction not having been provided in the Rajasthan Act, had to be pursued by a regular civil suit. It was urged that the Ordinance having been repealed, sec. 9 thereof was repealed and no provision remained for execution of the order of the eviction. According to the facts which have been stated above, the Controller had passed the order of eviction on 8th November, 1950, before the Rajasthan Act came into force. THE Rajasthan Act was brought into force on 28th November, 1950, when the appeal was pending before the Additional Commissioner. Sec. 27 sub-sec. (2) of the Rajasthan Act provides as follows: - "Except as is otherwise provided by or under this Act all cases which are, at the commencement thereof in any area to which it has been extended under sec. 2, pending before a Controller or any other authority appointed by or under any law in force therein immediately before such commencement, shall, notwithstanding anything to the contrary in this Act, be determined and disposed of by such Controller or authority in accordance with such law." It was this provision which enabled the Commissioner or the Additional Commissioner to dispose of the appeal on 30th April, 1951. The new Act did not provide for the procedure for execution of the orders that may be passed by authorities by virtue of sub-sec. (2) of sec. 27. The position which was brought about was that although an order of eviction could be passed by a competent authority under the old Act and such power was preserved by the new Act, the procedure for execution of the order that may be passed, which was provided in the old Act, was done away with. To such a case the general rule of construction would apply and it is this that where the right which had accrued under the old Act was preserved, the old procedure for enforcement of the right was also preserved. Reference may be made to a Full Bench decision in the case of Jatindra Nath De vs. Jetu Mahato (8). It was observed that - If rights and procedure are both altered by an amending or repealing statute, then, if the rights accrued under the pervious enactment are saved, it would seem to be consequential that the old procedure is saved as well, unless the new Act makes the new procedure applicable to old rights. If such be not the case, the right would seem to be saved to no purpose, for if a suit be brought under the general law, it is likely to be mat, and met successfully, by the plea that a special right created by a statute can only be enforced by the special procedure prescribed. The Legislature cannot be regarded as having contemplated such a result, It must, therefore, be one of the general rules of construction that if rights and procedure are both altered but rights accrued under the repealed enactment are saved, then, in the absence of an intention to the contrary expressed or necessarily implied in the new statute, it will be proper to interpret the intention of the Legislature to be that the old procedure will subsist for the enforcement of the saved rights There is no question of any vested right in procedure, The position simply is that the accrue J rights having been saved and the new Act not hiving abrogated the old procedure as respects those rights, nor made the new procedure applicable to them, the old procedure is consequentially saved as the only possible machinery for enforcing those rights." The learned Munsif of Kotah, who is now the successor of the District Munsif under the old Act had, therefore, jurisdiction to execute the order as if it was a decree of his own court. There is no force in this revision. It is accordingly dismissed with costs. ;