Lalji Tandon vs Union of India (UOI) and Others

K.C. Agarwal, J.—Lal Ji Tandon, the Petitioner, is the landlord of bungalow No. 3, Circular Road, Allahabad. The aforesaid Bungalow was let out to the Respondent No. 1 under a lease deed dated February 18, 1941. The lease deed recites that the premises was taken by the Union of India for the use and occupation of one Sardar Mohammad Sarwar Khan and his family. On May 23, 1973 the Petitioner filed an application u/s 21 of U.P. Act No. 13 of 1972 for the eviction of the Respondent No. 1, from the premises mentioned above on the ground that the same was required by the Petitioner for his own use and occupation. In the application the Petitioner also mentioned that the building in question was an old one and was in a dilapidated condition requiring substantial and extensive repairs and renovation of damaged portions and additional constructions. In the application the Petitioner impleaded Union of India only as a Respondent. Union of India did not file any written statement and did not contest the application filed by the Petitioner. The application was allowed on August 7, 1973. Soon thereafter Respondent Nos. 4 to 7 filed an application dated August 23, 1973 for setting aside the order dated 7-8-1973 on the ground that the aforesaid Respondents were the tenants of the aforesaid Bungalow but as the order u/s 21 had been obtained by the Petitioner without impleading these Respondents as parties, the same made by the Prescribed Authority on August 7, 1973 was liable to be vacated. The application was contested by the Petitioner. A counter affidavit was filed on his behalf stating that the Bungalow in question was taken on rent by the Union of India on the basis of the lease deed dated February 18, 1941. The Petitioner also alleged that neither Sardar Mohd. Umar Khan was the tenant of the property nor were the Respondent Nos. 4 to 7. The application was allowed by the Prescribed Authority on January 3, 1974. Against the aforesaid order the Petitioner preferred an appeal u/s 22 of U.P. Act No. 13 of 1972 before the District Judge. The appeal was dismissed on September 17, 1974 by the learned Second Additional District Judge with the finding that the appeal filed by the Petitioner was incompetent as Section 22 under which the same had been filed did not provide for an appeal against an order setting aside an ex-parte judgment given u/s 21 of U.P. Act No. 13 of 1972. Hence the writ petition.

The first question that is required to be considered in this petition is whether the appeal filed by the Petitioner u/s 22 was maintainable. Section 22 provides that:

any person aggrieved by an order u/s 21 or Section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge and in other respects, the provisions of Section 18 shall mutatis mutandis apply in relation to such appeal.

Section 21 provides that the Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy. Such an order for eviction has been made appealable u/s 22 of the Act. This will, however, also include order refusing to evict the tenants. Apart these no other orders are contemplated by this section. Hence it appears to me that orders for the eviction of a tenant for refusing to do so passed u/s 21 alone are appealable u/s 22 of the Act. The ambit of Section 22 cannot be widened by including those orders as well which would not fall within the four corners of Section 21. An appeal is a creature of a stature. No one has inherent right to file an appeal against any order or judgment unless a provision conferring such a right has been specifically provided for. In The Anant Mills Co. Ltd. Vs. State of Gujarat and Others, , H.R. Khanna, J. speaking for the court observed that without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. Interpreting the language employed in Section 22 it appears to me that the only possible conclusion which can be arrived at on its basis is that orders for the eviction or refusal to evict a tenant passed u/s 21. are appealable under this provision. It is not possible to file an appeal against an interlocutory order or other orders which may be passed in the proceedings u/s 21. Such an order must be one falling in the category mentioned above. Learned Counsel for the Petitioner referred to Section 41 of the Act No. 13 of 1972 and to Rule 22 of the rules framed under this Act and urged that as the impugned order has been passed under Rule 22, the same should be deemed to be an order passed u/s 21 of the Act. He urged that an occasion to make an application for setting aside the order passed in favour of the Petitioners arose only because Respondent Nos. 4 to 7 desired the order passed u/s 21 to be set aside and, therefore, the order passed on such an application would be deemed as one u/s 21 read with Rule 22 of the rules framed under this Act. I am unable to accede to the submission made by the learned Counsel for the Petitioner. It may be correct that the application made by the Respondent Nos. 4 to 7 was one under Rule 22 and that the same had been allowed by the Prescribed Authority but the order passed on this application cannot be treated as an order u/s 21 of the Act. Further even though Rule 22 has been framed u/s 41 of the Act but this does not lend any support to the submission advanced on behalf of the Petitioner. It would only mean that Rule 22 is in consonance with the Act. But that does not convert an order passed on an application under Rule 22 to be an order u/s 21 of the Act. Reliance was placed by counsel appearing for the Petitioners on a decision of the Supreme Court reported in Central Bank of India Vs. Shri Gokal Chand, where the Supreme Court laid down that an order of the Rent Controller refusing to set aside an ex-parte order is subject to appeal to the Rent Control Tribunal. The facts of the case would reveal that Section 38(1) of the Delhi Rent Control Act provided for an appeal "from every order to the Controller made under this Act of the Rent Control Tribunal". It would be found that Section 38(1) unlike Section 22 provided for an appeal against every order passed under that Act. Interpreting these words the Supreme Court held that they do not include interlocutory orders but covered those orders which affected some right or liability of any party. In this view of the matter the Supreme Court found that as an order refusing to set aside an ex-parte order vitally affects the right of a litigant, the same was subject to the appeal to the Rent Control Tribunal. Section 22 is, however, differently worded. It does not provide for an appeal from every order passed under Act No. 13 of 1972, therefore, the same has to be differently interpreted. As emphasised by the Earl of Halsbury in Quinin v. Leatham 1901 A.C. 495 at p. 506 every judgment must be read as applicable to the particular facts of that case and that a case is only an authority for what it actually decides. Applying the above principles I find that the decision reported in the case of The Central Bank of India v. Gokal Chand (Supra) does not support the submission advanced by the counsel for the Petitioner. I therefore in agreement with the view taken by the learned Second Addl. District Judge hold that the appeal filed by the Petitioner was incompetent.

Learned Counsel for the Petitioner, however, submitted that even if the appeal filed by the Petitioner was not maintainable before the District Judge this Court can quash the order of the Prescribed Authority dated 31-1-1974 which is patently erroneous and without jurisdiction. By the said order the Prescribed Authority had set aside the order dated 7-8-1973 allowing the application made by the Petitioner ex- parte. Learned Counsel for the Petitioner contended that as the Respondent Nos. 4 to 7 were not the tenants of the Petitioner, the application made by them for setting aside the order dated 7-8-1973 was not maintainable. He also contended that an application for setting aside an order can be filed only by a party against whom the same is passed and as the Respodent Nos. 4 to 7 were not impleaded as parties in the application filed by the Petitioner, the said order was not liable to be recalled at the instance of these Respondents. Learned Counsel for the Respondent Nos. 4 to 7 submitted that the application made by the Respondent Nos. 4 to 7 was under Rule 22(f) and not under Rule 22(b) of the rules. Rule 22 deals with the power of the Prescribed Authority for the purpose of holding any enquiry under the Act. Rule 22(f) is as under:

the power referred to in Section 151 CPC 1908 to make any order for the ends of justice to prevent the abuse of the process of the authorties concerned.

Even if it is correct that the application had been filed by the Respondent Nos. 4 to 7 under clause (f) of the aforesaid rule and not under clause (b) the question that has to be decided is whether the Respondent Nos. 4 to 7 could file this application under the same. It is to be remembered that inherent power is to be applied with extreme caution and cannot be invoked in aid of a legal principle which is not supported by any known rule of practice or procedure. It is a settled position in law that an order cannot be set aside at the instance of a stranger. He must be interested in the subject matter. It was, therefore, necessary for justifying the maintainability of the application in clause (f) of Rule 22 for the Respondent Nos. 4 to 7 to have established that they were not strangers and were those by whom the application for setting aside the order dated 7-8-1973 was maintainable. This principle cannot be forgotten while exercising inherent powers under Rule 22(f).

It appears from the papers filed by the Petitioner that the Respondent Nos. 4 to 7 alleged themselves to be the tenants of the house in dispute and this fact had been denied by the Petitioner. The Prescribed Authority did not go into the aforesaid question and allowed the application made by the Respondent Nos. 4 to 7 without finding that the Petitioners were the tenants and had locus stand to file the application. As stated above the application filed by the Respondent Nos. 4 to 7 could be maintainable only when they had any right in the subject matter. It was, therefore, necessary for the Prescribed Authority to have investigated the said question and to find whether the Respondent Nos. 4 to 7 were entitled to get the order dated 7-8-1973 set aside. If they did not have any tenancy rights the application filed by them was liable to be rejected.

It also appears appropriate to deal with the ground on which the order dated 7-8-1973 had been set aside by the Prescribed Authority. The same was that the provisions of U.P. Act No. 13 of 1972 were not applicable to the building in question, therefore, the order passed u/s 21 ex-parte should be recalled. Section 2(1)(b) provides as under:

any tenancy created by grant from the State Government or the Government of India in respect of a building taken on lease or requisition by such government.

The Prescribed Authority was of the opinion that as the property in question had been taken on lease by the Government of India from the Petitioner, therefore, the provisions of the present Act were not applicable to it. The view taken by the Prescribed Authority is erroneous inasmuch as the said section does not lay down that the provisions of the Act will not be applicable to a building taken by the State Government or the Government of India on lease. A person, who has let out his building to the Government cannot obtain it without complying with the provisions of that Act. Clause (b) lays down that although a building owned by an individual and let out to the Government is to be governed by the provisions of the Act No. 13 of 1972, the tenancy of such a building created by the Government would be exempt from the provisions of this Act. In my opinion, therefore, the Prescribed Authority is clearly wrong in holding that as the provisions of U.P. Act No. 13 of 1972 did not apply and the application made by the Petitioner u/s 21 of the said Act was not maintainable. This was not therefore a valid ground for allowing the application made by the Respondent Nos. 4 to 7.

Learned Counsel for the Petitioner contended that although the Prescribed Authority did not record any finding on the same, the High Court may investigate the said question and reject the application filed by the Respondent Nos. 4 to 7 for setting aside the ex-parte order dated 7-8-1973. I, however, find it difficult to accept this argument of the counsel for the Petitioner. It is settled that the High Court''s jurisdiction ''conferred by Article 226 of the Constitution is of supervisory nature and not in the nature of appellate review, therefore, it is not possible for me to record the findings in these proceedings. The proper course appears to be to direct the Prescribed Authority for consideration of the application afresh. The Supreme Court also in M. Naina Mohammed Vs. K.A. Natarajan and Others, held that the High Court on discovery of error of law should remit the matter for fresh consideration.

Accordingly I quash the order of the Prescribed Authority dated 3-1-1974 and direct him to decide the application filed by Respondent Nos. 4 to 7 afresh after giving opportunity to both the parties to adduce evidence on the points in controversy raised by the application. As I have found that the order passed by the learned District Judge dismissing the appeal on the ground of its in competency was correct it is not necessary to quash the same.

For these reasons the writ petition partly succeeds and the order of the Prescribed Authority dated 3-1-1974 is quashed. He is directed to decide the application filed by the Respondent Nos. 4 to 7 afresh in the light of the observations made by me above. No order as to costs. The stay order is discharged.