Satya Narain @ Lalla Babu vs Kusum Lata Devi

S.P. Mehrotra, J.—The present writ petition has been filed by the petitioner, inter alia, praying for quashing the order dated 1592003 (Annexure2 to the writ petition) passed by the learned District Judge, Etah.

It appears that the respondent filed a release application under Section 21(1)(a) of the U.P. Act No. XIII of 1972 (in short �the Act�) for release of a shop situated in Mohalla Nathu Ram Thandi Sarak, Kasganj, DistrictEtah. The said shop has hereinafter been referred to as �the disputed shop�.

The said release application was registered as P.A. Case No. 6 of 1999.

It further appears that the petitioner contested the said release application.

By the judgment and order dated 1752002, the Prescribed Authority, Kasganj, DistrictEtah dismissed the said release application filed by the respondent.

Thereupon, the respondent filed an appeal under Section 22 of the Act, which was registered as Rent Control Appeal No. 1 of 2002.

It further appears that the said Rent Control Appeal No. 1 of 2002 was pending for disposal before the learned Additional District Judge, Kasganj, DistrictEtah.

It further appears that the respondent filed a transfer application being Transfer Application No. 417 of 2003 before the District Judge, Etah on 1592003, inter alia, praying for recalling the said Rent Control Appeal No. 1 of 2002 before the District Judge or for transferring the same to any competent Court. The said transfer application was accompanied by an affidavit of Jagdish Prasad Maheshwari, the husband of the respondent. Copy of the said transfer application and its accompanying affidavit has been filed as Annexure1 to the writ petition.

It further appears that by the order dated 1592003 (Annexure2 to the writ petition), the learned District Judge, Etah recalled the said Rent Control Appeal No. 1 of 2002 from the Court of the learned Additional District Judge, Kasganj, and transferred the same to the Court of Additional District Judge (Court No. 1), Etah for disposal as per law.

Thereafter, the petitioner has filed the present writ petition seeking the reliefs mentioned above.

I have heard Shri Swapnil Kumar, learned Counsel for the petitioner.

It is submitted by Shri Swapnil Kumar, learned Counsel for the petitioner that the District Judge has no jurisdiction to transfer an appeal filed under Section 22 of the Act. He places reliance on a decision of this Court in Zahurauddin alias Babu v. Ashok Kumar & Ors., 1998(2) JCLR 865 (All) : 1998 (2) ARC 522.

I have considered the submission made by the learned Counsel for the petitioner, and I find myself unable to accept the same. Section 22 of the Act provides as follows:

�22. Appeal. Any person aggrieved by an order under Section 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 10 shall mutatis mutandis apply in relation to such appeal.�

A perusal of Section 22 of the Act shows that the provisions of Section 10 shall mutatis mutandis apply in relation to an appeal filed under Section 22 of the Act. Section 10 of the Act lays down as follows:

�10. Appeal against order under Sections (8, 9 and 9A). (1) Any person aggrieved by an order of the District Magistrate under Section 8 or Section 9 (or Section 9A) may, within thirty days from the date of the order, prefer an appeal against it to the District Judge, and the District Judge may either dispose it of himself or assign it for disposal to an Additional District Judge under his administrative control, and may recall it from any such officer, or transfer it to any other such officer.

(2) The appellate authority may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing, and may also take any additional evidence, and pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit.

(3) No further appeal or revision shall lie against any order passed by the appellate authority under this Section, and its order shall be final.�

Subsection (1) of Section 10 thus provides that in case an appeal is preferred before the District Judge, the District Judge may either dispose it of himself or assign it for disposal to an Additional District Judge under his administrative control, and may recall it from any such officer, or transfer it to any other such officer. It is, thus, open to the District Judge to recall an appeal pending before an Additional District Judge and decide the same himself or transfer it to any other Additional District Judge.

The said provision of subsection (1) of Section 10 of the Act, as noted above, is applicable to an appeal filed under Section 22 of the Act.

Thus, the District Judge has power to recall an appeal filed under Section 22 of the Act pending before an Additional District Judge and dispose of the same himself or transfer the same to any other Additional District Judge. The submission made by Shri Swapnil Kumar, learned Counsel for the petitioner, therefore, cannot be accepted.

As regards the decision in Zahurauddin case (supra), the said case is related to an application for transfer filed under Section 24 of the Code of Civil Procedure before this Court seeking transfer of Rent Control Appeal No. 9 of 1997 filed before the District Judge under Section 22 of the Act. The said application for transfer was rejected by this Court, inter alia, on the ground that the �appeal� contemplated under Section 24 of the Code of Civil Procedure would not include an appeal filed under Section 22 of the Act (i.e. U.P. Act No. XIII of 1972). Therefore, the facts of the said case are distinguishable from the facts of the present case.

The relevant portion of the decision in Zahurauddin alias Babu v. Ashok Kumar & Ors. case (supra) is as follows (paragraph 10 of the said ARC):

�(10) Under the provisions of Section 22 of the Rent Control Act, the District Judge has been empowered to hear the appeals but at the same time, to such appeals also, entire provisions of C.P.C. have not been made applicable. Only those provisions of C.P.C. as have been specified either in Section 34(1) or in Rule 22, have been made applicable. The District Judge under the scheme of the Act only acts as an appellate authority and not as a Civil Court or a Court of civil jurisdiction within the meaning of the Code of Civil Procedure. The word `appeal'' used in Section 24 CPC refers only to appeals pending in any Court of civil jurisdiction which is subordinate to the High Court or the District Court as the case may be and in my opinion this word would not relate to an appeal filed under Section 22 of the Rent Control Act. With great respect I may submit that perhaps the above provisions were not brought to the knowledge of Hon''ble Judge who decided the case of Dr. Ved Bhushan. For the foregoing reasons, I hold that the present application for transfer of Rent Control Appeal filed under Section 22 of the Rent Control Act is not to be entertained as being legally nonmaintainable under Section 24 of the Civil Procedure Code. If so advised, the petitioner may invoke the writ jurisdiction of this Court for the relief claimed in this application.�

It is further noteworthy that in the said decision, this Court observed as follows (paragraphs 6 of the said ARC):

�(6) ............A plain reading of Section 22, therefore, leaves no room of doubt that the provisions of Section 10 also apply to appeals filed under Section 22 of the Act against an order made by the Prescribed Authority under Section 21 of the Act, meaning thereby that the District Judge may either hear the appeal himself or transfer it to any other Addl. District Judge and it is also invested with the power to recall the same from any such officer.�

Thus, in view of the said decision also, the District Judge has power to transfer an appeal filed under Section 22 of the Act.

Shri Swapnil Kumar, learned Counsel for the petitioner then submits that the transfer application was filed on 1592003, and on the same date, the District Judge, Etah transferred the said Rent Control Appeal No. 1 of 2002. It is further submitted that the petitioner should have been given opportunity to contest the said transfer application.

I have considered the submissions made by Shri Swapnil Kumar, learned Counsel for the petitioner, and I find myself unable to accept the same.

A perusal of the transfer application and its accompanying affidavit shows that no allegation has been made against the petitioner. The allegations have been made only against the conduct of the Presiding Officer of the Court of the Additional District Judge, Kasganj. In the circumstances, there was no occasion for the District Judge, Etah to have called upon the petitioner to contest the said transfer application. In any case, no prejudice has been caused to the petitioner by not having been given opportunity to contest the said application.

Even otherwise, having regard to the facts and circumstances of the case, I am of the opinion that this is not a fit case for interference by this Court under Article 226 of the Constitution of India.

In view of the aforesaid discussion, I am of the opinion that the writ petition is liable to be dismissed. The writ petition is accordingly dismissed.