Durga Dass Sud vs Durga Parshad

P.D. Desai, C.J.—An appeal preferred u/s 21, Sub-section (1) of the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter referred to as "the Rent Act") to the District Judge, Solan and Sirmaur districts, at Solan, as the Appellate Authority constituted under the Rent Act, was placed for preliminary hearing before the learned District Judge. The appeal was admitted. However, for certain personal reasons, the learned District Judge was disinclined to take up the appeal for final hearing. Under the circumstances, the learned District Judge passed the following order:

As the H.P. Urban Rent Control Act, 1971 does not give powers to assign the appeals u/s 21 thereof to the District Judge, it would be in the interest of justice in case this appeal is sent to the Hon''ble High Court of Himachal Pradesh for passing necessary orders in this behalf by way of reference on this point. The file be sent accordingly.

The reference having been duly registered is now posted for orders before me.

In order to appreciate whether or not the view entertained by the learned District Judge with regard to the lack of power to assign the appeal to the learned Additional District Judge is correct, it would be necessary to refer to the relevant provisions of the Rent Act.

Section 21, reads as under:

Vesting of appellate authority on officers by State Government.

(1) (a) The State Government may, by a general or special order, by notification confer on such officers and authorities as they think fit, the powers of appellate authorities for the purposes of this Act, in such area or in classes of cases as may be specified in the order.

(b) Save as otherwise provided in this Act, any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order or such longer period as the appellate authority may allow for reasons to be recorded in writing prefer an appeal in writing to the appellate authority having jurisdiction. In computing the period of fifteen days the time taken to obtain a certified copy of the order appealed against shall be excluded.

(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision on the appeal.

(3) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller.

(4) The decision of the appellate authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law except as provided in Sub-section of this section.

(5) The High Court may at any time on the application of any aggrieved party or on its own motion call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto, as it may deem fit.

It will be seen that the Appellate Authorities for the purposes of the Rent Act have not been designated in the statute but the State Government is empowered, by a general or special order, to confer on such officers and authorities as it may think fit, by notification, the powers of Appellate Authorities in such area or in such classes of cases as may be specified in the order. In exercise of the powers accordingly conferred, the State Government has issued a notification No. Home-B(A)3-18/78, dated September 24,1982, which reads as under:

NOTIFICATION

In supersession of all previous notifications and in exercise of powers vested in him u/s 21 of the H.P. Urban Rent Control Act, 1971 and in consultation with the High Court of Himachal Pradesh, the Governor, Himachal Pradesh, is pleased to appoint all the District Judges and the Additional District Judges in Himachal Pradesh as the Appellate Authority u/s 23 (sic) of the said Act. These powers shall be exercised by them in their respective Divisions.

As a result of the issuance of the aforesaid notification, all the District Judges and Additional District Judges in Himachal Pradesh are constituted the Appellate Authorities for the purposes of the Rent Act and they are empowered to exercise powers as such in their respective Divisions.

At this stage it would be pertinent to refer to Sections 23A and 23B of the Rent Act which read as follows:

23-A. Power of the Controller to transfer proceedings from one Controller to another Controller.-(1) Where there are two or more Controllers appointed at the same station to exercise jurisdiction under this Act in the same territory, it shall be the senior-most (in-service) of such Controllers who alone shall be competent to initially entertain all applications and proceedings under this Act.

(2) The Controller competent to entertain applications and proceedings under this Act, under Sub-section (1) may transfer any such proceedings or applications pending before him for disposal to any other Controller of competent jurisdiction.

23-B. Power of the High Court or appellate authority to transfer proceedings from one appellate authority or Controller to another.-(1) The High Court may on an application made to it or otherwise, by order, transfer any proceeding pending before any appellate authority to another appellate authority and the appellate authority to whom the proceeding is transferred, may subject to any special directions in the order of transfer, dispose of the proceedings.

(2) The High Court or appellate authority may on an application made to it or otherwise, by order, transfer any proceeding pending before any Controller to another Controller within its jurisdication and the Controller to whom the proceeding is transferred may, subject to any special direction in the order of transfer, dispose of the proceedings.

These sections were initially introduced by the Himachal Pradesh Urban Rent Control (Amendment) Ordinance, 1975 (Ordinance 6 of 1975) on and with effect from November 13, 1975. The Himachal Pradesh Urban Rent Control (Amendment) Act, 1976, which came into force on and with effect from April 30, 1976, and which repealed the Himachal Pradesh Urban Rent Control (Amendment) Ordinance, 1975, reenacted Sections 23A and 23B without any modification. The statement of objects and reasons, which is published in the Himachal Pradesh Gazette (Extra-ordinary) dated February 21, 1976, at page 614, points out that there was no provision in the Rent Act for transfer of applications/proceedings from one Appellate Authority or Controller to another, while such provision existed in the repealed Act, that is, the East Punjab Urban Rent Restriction Act, 1949, as amended from time to time, which was repealed by the enactment of the Rent Act. Besides, there was no provision in the Rent Act regarding initial institution of cases in places where there were more Controllers than one. In the absence of such a provision, the choice would be left to the litigant to chose the Controller of his own choice and institute his case before him. To vest such a choice, in a litigant was not desirable. To achieve this end in view Sections 23A and 23B were introduced in the Rent Act.

It is also pertinent to mention that the Rent Act or the Himachal Pradesh Urban Rent Control Rules, 1973, do not lay down the detailed procedure governing the appeals before the Appellate Authority. The CPC is made applicable but to a limited extent. Section 22 of the Rent Act provides that for the purposes of the Act, an Appellate Authority or a Controller appointed under the Act shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1908. It would thus appear that the CPC has been made applicable only for limited purposes.

The Himachal Pradesh Courts Act, 1976 (hereinafter referred to as "the Courts Act") is the law relating to Courts in Himachal Pradesh. Section 2, Clause (a) of the said Act defines the expressions "civil district" or "district" to mean the local limits of the jurisdiction of a principal Civil Court of original jurisdiction. Clause (b) defines the expression "District Judge" to include an Additional District Judge. Section 3 provides that in addition to the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be two classes of Subordinate Civil Courts in the State, namely, the Court of the District Judge and the Court of the Subordinate Judge. Section 4, inter-alia, empowers the State Government, by issue of a notification in the Official Gazette, to divide the State into civil districts and to make alterations in the limits or the number of the districts and to determine the headquarters of each district. Section 5 empowers the State Government, after consultation with the High Court, to appoint as many persons as it thinks necessary to be the District Judges and the High Court is empowered to post one such person to each district as District Judge. Section 6 provides that when the business pending before the Court of any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may, after consultation with the High Court, appoint such Additional District Judges as may be necessary. The Additional District Judge so appointed is empowered to discharge any of the functions of the District Judge which the High Court or the District Judge may assign to him and in the discharge of his functions, he shall exercise the same powers as the District Judge. Section 7, which is relevant, reads as follows:

The High Court or the District Judge may assign to an Additional District Judge any of the functions of the District Judge including the functions of receiving and registering cases and appeals, which, but for such assignment of functions could be instituted in the Court of District Judge and in the discharge of those functions the Additional District Judge shall, notwithstanding anything contained in the Act, exercise the same power as the District Judge.

Section 9 provides that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the district. Section 16 vests in the District Judge the control over all the Civil Courts constituted under the Courts Act within the local limits of his jurisdiction subject to the general superintendence and control of the High Court. Section 17, which is relevant for the purposes of the present case, reads as follows:

Notwithstanding anything contained in the CPC every District Judge may by written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit:

Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction.

Section 22 empowers the District Judge to transfer any appeal pending before him from the decrees or orders of Subordinate Judges to any other Subordinate Judge under his administrative control competent to dispose of the same or to withdraw any appeal so transferred and either hear and dispose of it himself or transfer it to a Court under his administrative control competent to dispose of the same. The power is subject to the general or special orders as may from time to time be issued in this behalf by the High Court. Section 28 provides that in the event of absence of the District Judge or in the event of a vacancy in that office for whatever reason, the Additional District Judge or if there are more than one Additional District Judges present, the first in rank among them and in case there be no Additional District Judge present, the first in rank among the Subordinate Judges present, shall, in addition to his own duties, discharge the functions of the District Judge with respect to the filing of the suits and appeals, receiving pleadings, miscellaneous applications and the like, as also with respect to the distribution thereof.

Section 24 of the CPC which is also relevant for the purposes of the question under consideration reads as under:

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section-

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.

Now, it is apparent that the District Judges and the Additional District Judges, who are constituted the Appellate Authorities for their respective Divisions, are not personae designatae. Under the statutory order, the powers of the Appellate Authorities are conferred on them as judicial officers presiding over ordinary Courts of the State and those powers are exercisable by them in discharge of functions assigned to them as judicial officers. A persona designata is "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." (See: Obborn''s Concise Law Dictionary, 4th Edn., P. 253). In the words of Schwabe, C.J., in K. Parthasarathi Naidu Garu Vs. C. Koteswara Rao Garu and Another, , personae designatae are "persons selected to act in their private capacity and not in their capacity as Judges." See also: The Central Talkies Ltd., Kanpur Vs. Dwarka Prasad, . Under such circumstances, in the absence of any enactment to the contrary in the Rent Act, the provisions of the Courts Act, which confer upon the District Judge the power relating to the control of Courts, assignment of functions, distribution of business, transfer of appeals, etc., must be regarded as becoming applicable even in respect of the appeals under the provisions of Section 21 of the Rent Act. In National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), an appeal preferred to the High Court of Bombay u/s 76 of the Trade Marks Act, 1940 against the decision of the Registrar of Trade Marks allowing the notice of opposition succeeded before a learned single Judge. From the judgment of the learned single Judge an appeal under Clause 15 of the Letters Patent was preferred which was allowed. One of the questions which arose before the Supreme Court was whether the appeal under Clause 15 was permissible against the judgment oft he learned single Judge. The contention, inter-alia was that since Section 76 contemplated only one appeal, no second appeal under Clause 15 was permissible. While rejecting the said contention, the Supreme Court made the following pertinent observations:

...Obviously after the appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court. This rule was very succinctly stated by Viscount Haldane LC in-National Telephone Co. Ltd. v. Postmaster-General (1913) AC 546 (A), in these terms:

When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.

The same view was expressed by their Lordships of the Privy Council in- AIR 1948 12 (Privy Council) wherein it was said:

Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal.

Again in ''Secy. of State for India v. Chellikani Rama Rao AIR 1916 PC 21 (C), when dealing with the case under the Madras Forest Act, their Lordships observed as follows:

It was contended on behalf of the Appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships'' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders and decrees the ordinary rules of the CPC apply.

Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an opposite application of the facts and circumstances of the present case. Section 76, Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S. 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under Clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act."

The principle which clearly emerges from the decision is that when a statute, even if it be a special statute, provides that an appeal shall lie to the ordinary Courts of the country, such an appeal must be regulated by the practice and procedure of that Court and in accordance with the law under which that Court is constituted and which prescribes the method and manner of exercising its jurisdiction. The principle is of general application and has been regarded as conferring even a right of appeal which may not have been specifically provided for. The principle can be legitimately invoked on the facts and in the circumstances of the present case and, accordingly, in virtue of the power conferred by Section 22 of the Courts Act, the District Judge as the Appellate Authority must be regarded as having been clothed with the power to transfer any appeal u/s 21 of the Rent Act pending before him to the Additional District Judge discharging the function of Appellate Authority in the same division/district. Indeed, in my opinion, all the relevant provisions of the Courts Act, such as, Sections 7, 16 besides Section 22, must be held applicable to the proceedings instituted before an Appellate Authority under the Rent Act.

Section 23B of the Rent Act which, inter alia, confers power on the High Court to pass an order transferring any proceeding pending before any Appellate Authority to another Appellate Authority, cannot be looked upon as a provision militating against the aforesaid view. Even in the absence of such a provision, the High Court is clothed with such power in view of the well settled legal position discussed above. Section 23B is apparently introduced ex abundanti cautela or ex majori cautela to quieten the fears of those who might have felt that in the absence of any provision in the Rent Act relating to the transfer of an appeal from one Appellate Authority to another, hardship, inconvenience or stalemate may arise in a situation where an Appelate Authority cannot hear an appeal. It is not uncommon to find the legislature inserting such a provision under the influence of what may be called abundant caution and such a provision cannot lay the foundation for an argument resting on the maxim expressio unius exclusio alterious (See Assistant Collector of Central Excise, Calcutta Division Vs. National Tobacco Co. of India Ltd., at page 2573 and Gokaraju Rangaraju Vs. State of Andhra Pradesh, cannot, therefore, be regarded as indicative of the legislative intention of conferring the power of transfer only upon the High Court to the exclusion of the District Judge.

For the foregoing reasons, in my opinion, it is competent to a District Judge, before whom an appeal is instituted as the Appellate Authority u/s 21 of the Rent Act, to transfer such appeal to the Additional District Judge under his administrative control and competent to dispose of such appeal as the Appellate Authority constituted under the Rent Act. The Reference is answered accordingly. The case is remanded to the learned District Judge, Solan and Sirmaur districts, for passing appropriate orders in accordance with law and in light of the observations made in the course of this judgment.