Mahila Shiksha Mandal vs The Prescribed Authority and Another

N.D. Ojha, J.—The Petitioner made an application u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for release of an accommodation on the allegation that one Raj Kumar Verma who was arrayed as opposite party to that application was its tenant and that the Petitioner bonafide needed that accommodation for its personal use. Raj Kumar Verma appears to have entered into a compromise with the Petitioner and an order for release of the accommodation was passed on 7th December, 1978, by the Prescribed Authority, Respondent No. 1. The said order was put in execution and the Petitioner took possession over the accommodation in proceedings u/s 23 of the Act on 11th January, 1979. Subsequently an application was made u/s 151 of the CPC by Respondent No. 2 for recalling the orders dated 7th December, 1978 and 11th January, 1979 on the allegation that neither Smt. Gyatri Agrawal was Sanchalika of Mahila Shiksha Mandal nor Raj Kumar Verma was the tenant of the accommodation in question. According to Respondent No. 2, she was the Sanchalika of Mahila Shiksha Mandal and was in possession of the accommodation in question. For a few days in January, 1979 she went to Delhi and when she came back she discovered that the Petitioner had obtained the order dated 7th December, 1978, referred to above, u/s 21 of the Act against Raj Kumar Verma who had nothing to do with the accommodation in question nor was in possession over it and in execution of that order had really thrown out Respondent No. 2 from the accommodation in question. This writ petition has been instituted by the Petitioner. The prayer contained in the writ petition is that the: Prescribed Authority, Respondent No. 1, may be prohibited from proceeding with the application made by Respondent No. 2.

It has been urged by counsel for the Petitioner that the application made by Respondent No. 2 u/s 151 CPC is not maintainable and consequently the Prescribed Authority has no jurisdiction to take cognizance of he said application.

Section 41 of the Act empowers the State Government to frame Rules inter alia to carry out the purposes of the Act. Section 34 of the Act, on the other hand, makes certain provisions of the CPC applicable to the proceedings under the Act. Section 34(1)(g) envisages that the authorities under the Act shall have a power in respect of "any other matter which may be prescribed." Section 3(d) of the Act defines the term ''prescribed''. According to the said definition the word "prescribed", except in Clause (e), means prescribed by rule made under this Act. Rule 22 (f) framed under the Act confers on the Prescribed Authority the power referred to in Sections 151 and 152 of the Code of Civil Procedure, 1908, to make any order for the ends of justice or to prevent the abuse of the power of the authority concerned. In view of Rule 22 (1) of the Act, the application made by Respondent No. 2 is on the fact of it maintainable.

What was urged by counsel for the Petitioner was that since Respondent No. 2 had an alternative remedy under the Act of filing an appeal against the order of the Prescribed Authority passed u/s 21 of the Act as provided in Section 22 of the Act, the inherent powers of the Prescribed Authority u/s 151 could not be exercised.

Having heard counsel for the parties I find myself unable to agree with this submission. Firstly it is really the order dated 11th January, 1979, passed u/s 23 of the Act whereby Respondent No. 2, according to her case, was evicted from the accommodation in question which hurts her. She is indeed, aggrieved by that order. No appeal is prescribed u/s 22 of the Act against an order passed u/s 23 thereof. It is true that Respondent No. 2, in her application u/s 151 CPC made a prayer for recalling even the order dated 7th December, 1978, passed u/s 21 of the Act. But in my opinion that alone will not be sufficient to hold that the application made by her u/s 151 CPC would not be maintainable even if she is really aggrieved by the order dated 1lth January, 1979.

Further, on the allegations made by her in the application u/s 151 Code of Civil Procedure, the right of Respondent No. 2 to file an appeal against the order u/s 21 of the Act, even if such right is accepted to exist notwithstanding the fact that she was no party to the proceedings before the Prescribed Authority, will be really illusory on the facts of the instant case. Normally an appeal is decided on the material on the record of the Court or authority whose order is appealed against. Apparently there would be no material and none has been brought to my notice on the record of the Prescribed Authority as it stood on the date when orders dated 7th December, 1978 and 11th January, 1979 were passed, in regard to the assertion made by Respondent No. 2 in her application u/s 151 Code of Civil Procedure. For this reason also the existence of the right of preferring an appeal u/s 22 of the Act against the order dated 7th December, 1978, passed by the Prescribed Authority would not be a sufficient ground to hold that the application u/s 151 CPC made by Respondent No. 2 is not maintainable.

Even without expressing any opinion on the merits of the matter it can safely be said that if what Respondent No. 2 asserts in her application is right, it is a clear case of abuse of the process of the Court entitling the Prescribed Authority to take cognizance of the application made by her u/s 151 Code of Civil Procedure. No other point has been pressed.

In the result, I find no merit in this writ petition. It is accordingly dismissed with costs. The interim order of stay staying further proceedings before the Prescribed Authority is vacated.