Harbans Lal Mehta vs Mangat Ram etc.

Chet Ram Thakur, J.—Shri Harbans Lal Mehta is the tenant of a residential building belonging to the Respondents situate on Khasra No. 836/556, 834/556 and 838/542 in Civil Lines, Dharamsala. The Respondents are the residents of Tehsil and District Hamirpur. The Petitioner is a retired officer from the Provincial Education Service and he has got no house of his own and, therefore, he is resideing at Dharamsala in the premises in question. The Respondents have filed an application u/s 14(3)(1) of the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter shortly called the Act) before the Rent Controller, Kangra, for eviction.

The Petitioner moved an application u/s 24 of the CPC (hereinafter called the Code) for the transfer of the case from the Rent Controller, Kangra, to the Rent Controller at Dharamsala. The application was dismissed by the learned District Judge, Kangra at Dharamsala, on the ground that the Rent Controllers, Kangra and Dharamsala had concurrent jurisdiction and on merits also it was held that there was no case made out by the Petitioner. The tenant-Petitioner has, therefore, filed this application u/s 24 of the Code as also u/s 21(5) of the Act.

Learned Counsel for the Respondents has raised preliminary objections, firstly, that the revision petition u/s 21(5) of the Act is not maintainable against the order of the District Judge rejecting the application u/s 24 of the Code; and, secondly, the application u/s 24 of the Code for transfer of the case from one Rent Controller to the other is also not maintainable, inasmuch as the Rent Controller is not a court subordinate to the High Court.

First I will take up the point about the maintainability of the revision petition u/s 21(5) of the Act. Sub-section (5) of Section 21 of the Act is as under:

The High Court may at any time on the application of the 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.

Under Section 21(1)(b) of the Act any person aggriev ed by an order passed by the Controller is given the right of appeal to the Appellate authority, who may be appointed by the State Government by a general or special order by notification for the purposes of the Act. Under Sub-section (3) of Section 21 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. Sub-section (4) says that 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 (5) of this section.

I have already quoted Sub-section (5) of Section 21 of the Act and according to which ft is the order of the Appellate authority which can be called in question by any aggrieved party in revision to the High Court. Therefore, from this it would follow that this order made u/s 24 of the Code by the District Judge is not an order which may fall within the ambit of Sub-section (3) of Section 21 of the Act. There was no order passed by the Rent Controller against which an appeal was preferred to the Appellate authority under the provisions of Section 21(1)(b) of the Act. It was an application u/s 24 of the Code made by the Petitioner before the District Judge for transfer of the proceedings. Therefore, this order could not be a subject-matter of revision u/s 21(5) of the Act. Therefore, this revision petition u/s 21(5) is misconceived.

Learned Counsel for the Petitioner had submitted that this was an independent application u/s 24 of the Code made by him to the High Court for transfer of the proceedings from the court of the Rent Controller, Kangra to the court of the Rent Controller at Dharamsala. The Respondents, as already stated, had raised a preliminary objection that this application was not maintainable and he has referred me to certain provisions of the Act as also to a number of authorities in support of his submission. Section 2(b) of the Act defines "Controller" meaning any person who is appointed by the State Government to perform the functions of a Controller under the Act. There is a notification issued by the Government in pursuance of the provisions of Section 2(4) empowering the Subordinate Judges to perform the functions of the Controllers under the Act in the urban areas within the limits of their existing civil jurisdiction and the District Judges in their respective districts have been notified as the Appellate authorities under the provisions of Section 21(1)(A) of the Act. Therefore, the Rent Controller and the Appellate authorities who are authorised by the State Government to function as such under the Act cannot be said to be courts but they are persona designate, and for that matter they cannot be said to be courts subordinate to the High Court. It had been decided in Firm of Firm of S. Mohd. Ali and Sons and Others Vs. V. Madhavarao and Others,

Before any suit or proceeding is transferred from one Court to another, it must be shown that the suit or proceeding which is being transferred is pending before a Court subordinate to the High Court. It is only then that the High Court will have jurisdiction to entertain petition u/s 24.

The Rent Controller under the Andhra Pradesh (Lease, Rent and Eviction) Control Act is not a "Court" falling within the definition of Section 24 and the High Court is not competent to transfer any case pending before the Rent Controller or the Appellate authority to a Civil Court or to any other Rent Controller or Appellate authority.

It has also been decided in Giraja Vs. Anantha Bhaktha, wherein reference has been made to Chenniah Thevar v. Badsha A .I.R. 1948 Mad 439, Abdul Wahid v. Abdul Khader AIR 1947 Mad 400, Rajah of Venkataqiri v. Mahboob Sahib AIR 1944 Mad 139, Abdul Sattar Sahib v. Spl. Dy. Collector Vizaqapatnam AIR 1924 Mad 442, C.K. Ramaswam Goudan v. Muthuvelappa Goudan AIR 1923 Madras 192, O.A. O.K. Lakshmana Chettiar v. J.S. Kannappar AIR 1927 Mad 93 , Vareed Ouseph Vs. Mary, and Parthasarthi Naidu v. Kotiswararao AIR 1924 Mad 561, that the Controller of Rents is not a court nor a civil court. The High Court is not a Court of appeal from him as a Court nor has Appellate jurisdiction over him nor is he a Court subject to the Appellate jurisdiction of the High Court. Therefore, according to these authorities a revision u/s 115 of the Code was not maintainable against an order of a Rent Controller. However, these are authorities in respect of revision petition u/s 115 of the Code whereas this is not the point before this Court. The point for consideration is whether the High Court can transfer the proceedings from one Rent Controller to another Rent Controller on an application u/s 24 of the Code made by one of the parties. This has been settled, as already stated above, that the Rent Controller is not a civil court rather it is a persona designata and, therefore, neither the Rent Controller nor the Appellate authority are subordinate to the High Court within the meaning of Section 24 of the Code. In Pitman''s Shorthand Academy v. B. Lila Ram and Sons AIR 1950 P&H 181, also it had been observed that the Rent Controller and the Appellate authority appointed under Punjab Urban Rent Restriction Act, 1947, do not constitute civil courts subordinate to the Appellate jurisdiction of the High Court and therefore their orders are not subject to revision by the High Court. In the face of this principle laid down by several High Courts there remains no manner of doubt to hold that the Controller of Rents not being a court subordinate to the High Court the application u/s 24 of the Code is not maintainable to the High Court.

Learned Counsel for the Respondents on the contrary has also relied on Smt. Vidya Devi widow of Vidya Devi Dass Vs. Firm Madan Lal Prem Kumar, and Amba Dutt and Ors. v. Hira 1970 D.L.T. (HP) 36. In the first authority the contention was that the Controller and the Appellate authority under the Act were neither courts nor civil courts as those terms are used in Section 195(1)(b), 476 and 479-A of the Code of Criminal Procedure and, therefore, the Appellate authority had no jurisdiction to file a complaint for perjury against the Petitioner and her son, nor had any jurisdiction to issue the notices to them to show cause why a complaint u/s 193 I.P.C. should not be filed against them. It was held in those circumstances by a Full Bench of that Court that the Appellate authority under the Rent Restriction Act had right to issue notice u/s 497-A Code of Criminal Procedure to show cause why complaint u/s 193 I.P.C. should not be filed against him for committing perjury before the Rent Controller and to file a complaint u/s 195(1)(b) Code of Criminal Procedure if it is found to be expedient in the interest of justice to file such complaint. But this authority, in my opinion, has got no bearing. The Full Bench authority reported in Pitamans Shorthand Academy''s case (supra) also had been considered by this Full Bench and it held that no fault can be found with that judgment because the Rent Controller and Appellate authority are not civil courts for the purposes of the Code as the jurisdiction of the civil courts to adjudicate on the matters provided for in the Act is expressly barred. Any Court dealing with those barred matters cannot be termed as a civil court. Therefore, this authority is distinguishable. Amba Dutt and others case (Supra) also has got no relevancy to the facts of the present case inasmuch as it was an appeal u/s 104 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953. The section provided that an appeal shall lie to the District Judge from any order of the Compensation Officer and a second appeal from the decision of the District Judge shall lie to the Judicial Commissioner. In that case cross-objections had also been filed by the Respondent and the objection taken on behalf of the Appellant was that the cross-objections were not competent as the Code did not apply to the appeals u/s 104 of the Act. The Court held that an appeal u/s 104 of the Act was governed by the Code and reference was also made to Secretary of State for India v. Chellikani Rama Rao and Ors. AIR 1916 P.C. 21 , AIR 1948 12 (Privy Council) and National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), . It was laid down in those authorities that the true rule is that 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. The Code as such is not made applicable to the proceedings before the Rent Controller and Section 22 of the Act says that for the purposes of this Act, an Appellate authority or a Controller appointed under the Act shall have the same powers of summoning and enforcing the attendance of witness and compelling the production of the evidence as are vested in a court under the CPC 1908. Beyond these powers exercisable by the Rent Controller under the Code the other provisions have not been made applicable. Therefore, it is quite evident that the application of the Code is barred in so far as the proceedings before the Rent Controller are concerned except to the limited extent as provided for u/s 22 of the Act. In these circumstances, I am of the opinion, that this petition u/s 24 is not maintainable as the Rent Controller or the Appellate authority are not subordinate to the High Court within the meaning of Section 24 of the Code.

Therefore, in these circumstances the only conclusion that is inescapable is that the Rent Controller is a persona designata and is not a civil court subordinate to the High Court so as to transfer the case under the provisions of Section 24 of the Code by the High Court to another Rent Controller. The provisions of the Code are applicable only to the limited extent as mentioned in Section 22 of the Act and as such this application u/s 24 is not maintainable.

Learned Counsel for the Petitioner when found himself confronted with the situation prayed that this be treated as a petition under Article 227 of the Constitution. The principle enunciated in the authorities Deota v. Phagu 1969 D.L.T. (HP 424 and Ranjit Kumar Ghose Vs. Secretary, Indian Psycho-Analytical Society and Others, cannot be disputed. Under this Article powers of general superintendence involve a duty on the part of the High Court to keep all courts and tribunals within the bounds of their authority to see that they do what their duty requires and they do it in a legal manner. But this power can be exercised only in case of grave dereliction of duty or flagrant violation of law. The Petitioner has not been able to show what is the grave dereliction of duty or flagrant violation of law which calls for interference by the High Court in exercise of its powers of superintendence under Article 227. The petition does not reveal if the order passed by the learned District Judge is totally perverse and is without jurisdiction in the discharge of its duties. Therefore, this prayer to treat the petition as one under Article 227 also cannot be sustained.

Coming to the merits of the case I am of the view that this petition must fail. The property, no doubt, is situate at Dharamsala. The landlords belong to Hamirpur. They have made the application for eviction on the ground that they require the same for their personal use. Therefore, it is for the landlords to establish their bona fide requirement and it is for them to produce their evidence. Therefore, it is wrong on the part of the tenant to say that for the convenience of the parties and witnesses it is desirable that the case should be transferred from the Court of the Rent Controller, Kangra to the Court of the Rent Controller at Dharamsala.

The Petitioner has also alleged that he has sustained a fracture in the year 1970 and that he cannot undertake the journey from Dharamsala to Kangra in order to defend the case. It is not denied that the Petitioner is represented by a counsel in the case before the Rent Controller. Therefore, in these circumstances, I do not understand why it is necessary for the Petitioner to go in person on each and every hearing.

It has been contended by the learned Counsel for the Petitioner that the Respondents had filed a false affidavit before the District Judge, inasmuch as it was stated therein while opposing the petition for transfer of the proceedings from Kangra to Dharamsala that he was suffering from high blood pressure and that, therefore, he cannot undertake journey to a high altitude like Dharamsala although the Respondents had stated in the application for eviction that the house was required bona fide for their personal use. If that were so, it was apparently wrong that he cannot undertake the journey to Dharamsala. I have perused the application for eviction and I find that this contention raised by the Petitioner before this Court is not correct. In para 5-A it has been stated that the Kothi is required for the personal use, occupation and residence of the families of the Petitioners Nos. 2 and 3, who are none else but the sons of Mangat Ram who had filed the affidavit before the District Judge opposing the transfer of the proceedings. Hence this submission also has got no substance.

These were the only points raised. The petition therefore, fails and I accordingly dismiss the same. However, I pass no orders as to costs.