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Judgment
Dr. T.N. Singh, J.
It is necessary to mention at the outset that this petition under Article 227 of the Constitution was entertained by us on 30-1-1989 on submission being made that the law laid down by two learned Single J udges of this Court to their under-mentioned decisions, required reconsideration :
(1) Mahavir Kumar v. Phool Chand 1986 MPRCJ 310 and
(2) Govind Prasad Yadav v. Jagdish Prasad Verma, 1987 MPRCJ 296.
We have, therefore, limited in this matter our decision on the question merely of maintainability of the appeal filed as per memo of appeal (Annexure P/4) by non-petitioner No. 3 (tenant) in the Court of the Second Additional Judge to the Court of District Judge, Gwalior. The appeal was filed against order passed on 1-11-1988 by the Rent Controlling Authority, Gwalior, for short, ''the R.C.A.'', in a proceeding initiated by the petitioner/landlady u/s 23-A of the Madhya Pradesh Accommodation Control Act, 1961, for short, the ''Act''. By that order, the non-applicant-tenant was held in default by the R.C.A. for submitting neither the list of his witnesses nor producing his witnesses to comply with the direction made in that regard and further opportunity to do so as denied to him. In. appeal, the tenant/appellant submitted that his case could not be closed by the R.C.A. by the impugned order as on that date, an application under Order 6, Rule 17, CPC was filed by him and on that, landlady/respondent was to be heard and no evidence had to be taken. In the memo of appeals. 31 of the Act is quoted as the provision under which the appeal was filed, Counsel for the parties concede that the appeal is pending disposal in the concerned Court and no final decision has been rendered tharein.
Before we examine decisions aforementioned, we have considered it proper to look at the Scheme of the Act. As many as seven Chapters cover the entire corpus of the Act, but special notice has to be taken of the fact that Chapter III-A was inserted by the Legislature for the first time in the year 1983 by Act No. 27 of 1983 apparently in derogation of the general provision contained in Chapter III, captioned ''Control of Eviction of Tenants". The Act has been further amended in 1985 by Act No. 7 of 1985 and thereunder new Section 23-J has been inserted in Chapter III-A. The Chapter is endowed with the caption. "Eviction of Tenants on Grounds of "Bona Fide" Requirement". But, also note- worthy is the heading of Section 23-A "Special provision for eviction of tenant on ground of bona fide requirement." Section 23-B empowers the R.C.A. to issue summons "in relation to very application referred to in Section 23-A" and Section 23-C specifies the circumstances under which the tenant''s entitlement to contest the proceeding initiated u/s 23-A can be circumscribed. However, special mention has to be made of Section 23-D because of the matter it contains, as is reflected in its heading "Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest". In Sub-section (1) itself of Section 23-D, it is provided that the R.C.A. has to dispose of finally the application made u/s 23-A within six months of the order of granting of leave to the tenant to contest application. Uner Section 23-E, provision is made for High Court to entertain a revision petition and about that, we have to say much later. Section 23-F specifies that for a period of six months only, the stay order of High Court or of the R.C.A. against the eviction allowed, shall operate. Section 23-G deals with recovery of possession for occupation and the right of re-entry of the tenant. Section 23-H deals with deposit of rent during pending proceeding for eviction or for revision, while u/s 23-I, a landlord is warned against making frivolous application u/s 23-A and tenant also is similarly warned against making frivolous application for seeking leave to defend or for adjournment, on the pain of suffering "heavy compensatory costs not exceeding six months'' rent of the accommodation at a time as the Rent Controlling Authority may fix". Let it be noted now that in 1985, Legislature having reviewed the social conditions and constitutional imperatives, considered it proper to modify the scope and ambit of Chapter III-A and accordingly inserted Section 23-J under which it defined the term "landlord" for the purpose of Chapter III-A. In other words, the benefit of the said law enacted in Chapter III-A has come to be limited now, thereafter, to the special category of landlords described in Section 23-J, namely, such persons as :
"(i) a retired servant of any Government including a retired member of Defence Services; or
(ii) a retired servant of a company owned or controlled either by the Central or any State Government; or
(iii) a widow or a divorced wife; or (iv) physically handicapped person; or
(v) a servant of any Government including a member of defence services who, according to his service conditions, is not entitled to Government accommodation on his posting to a place where he owns a house or is entitled to such accommodation only on payment of a penal rent on his posting to such a place".
The Chapter heading of Chapter V has to be noted. It runs thus :--- "Appointment of Rent Controlling Authorities Their Powers, Functions and Appeals". Section 31 is includ-ed in this Chapter and we may profitably, therefore, extract that provision in extenso: Additional District Judge-
"(1) An appeal shall lie from every order of the Rent Controlling Authority made under this Act to the District Judge or an Additional District Judge having territorial jurisdiction (hereinafter referred to as the Judge) and the decision of the appellate Court shall be final.
(2) An appeal under Sub-section (1) shall be preferred within thirty days from the date of the order made by the Rent Controlling Authority.
Provided that in computing the perid of thirty days the period requisite for obtaining a copy of the order shall be excluded.
Provided further that the judge may for sufficient reasons allow an appeal after the expiry of the said period."
However, we may also note that in so far as power of R.C.A. are concerned, something more has to be read in Chapter VI and in that connection, we may read Section 38, wherein tenant has been given the right to approach the R.C.A. for redressal of his grievance regarding cutting off or withholding essential supply or service by the landlord. There are other provisions also in the Act, wherein provisions are made when the R.C.A. can be approached in different circumstances for different purposes. Those are in Sections 8, 10, 17, 25 and 37 of the Act, what is apparent, therefore, is that Chapter V is not self-contained Code dealing with the ''powers'' of the R.C.A. (or ''appeals'' for that matter its heading is misleading). This position, we have stressed for the special reason that the scope of the power to be exercisable in an appeal u/s 31 aforcquoted has, therefore, to be spcred out otherwise and that provision a priori cannot operate in respect of exercise of powers by the R.C.A. under all circumstances and all cases.
We are of the view that although in Section 31, provision is made for an appeal from "every order of the Rent Controlling Authority made under this Act", the scope of appeal thereunder must be held to exclude from its purview the orders passed under Chap. III-A. For this, we read clear mandate in the express language of Section 23-E(1) which we quote.
"23-E. Revision by High Court (1) Notwithstanding anything contained in Section 31, Section 32, no appeal shall lie from any order passed by Rent Controlling Authority under this Chapter".
We have no doubt that the special law enacted in Section 23-E is in derogation of the provisions contained in Section 31 and Legislature therefore, made its intention clear by using non ohstante clause in Section 23-E and further using the words "any order passed by the Rent Controlling Authority under this Chapter". We are also of the view that support for this proposition can be read in the object of the special law enacted in Chapter III-A. When eviction is sought by the specified category of landlords having resorted to the provisions of Section 23-A of the Act, Legislature meant for the special procedure prescribed in Chapter III-A lo be followed for disposing of the application of the specified category of landlord u/s 23-A within time-frame prescribed in Section 23-D so that disposals of such matters are expeditious. It is a notorious fact that civil litigations are too protracted and special care was taken by the Legislature, therefore, to ensure that in the course of the proceedings under Chapter III-A, when any order was passed by the R.C.A. It was necessary to provide the leap-frog procedure by envisaging a revision directly to the High Court. Accordingly, if it is held that the provisions of Section 31 should be construed to envisage an appeal from every order of the R.C.A. including any order passed under Chapter III-A, the very object and purpose of enactment of special law made in Chapter III-A shall be defeated.
We have now to examine the two decisions, aforesaid. It appears to us that due importance has not been attached to the language used by the legislature in Section 23-E( I) even in the later decision (Govind Prasad 1987 MPRCJ 296), which had followed Mahabir Kumar (1986 M PRCJ 310). In both cases, an order passed by R.C.A. in a proceeding u/s 23-A was challenged in the earlier case u/s 13(6) of the Act, in the later case, it was an order refusing to review the decision already rendered transferring the case to Civil Court for trial. In both decisions the impugned orders were held appealable according primacy to the provisions of Section 31 of the Act. While Mahabir Kumar focussed only on Sub-section (2) of Section 23-A Govind Prasad surveryed the field with reference only to Sections 29, 31 and 33 of the Act as also Rule 6 of the Rules framed u/s 50 of the Act.
We are also of the view that it will be wrong to attach any importance to the fact that Section 29 of the Act empowers the R.C.A. to exercise powers envisaged under the CPC because there is a clear distinction between conferment of power and of regulation of procedure by enactment of special law, providing special procedure for dealing with certain matters. Therefore, even if R.C.A. has exercised powers in accordance with any provision of C.P.C. in a proceeding under Chapter Ill-A, that, in our opinion would not, and cannot, change the nature of the procedure legislatively envisaged in that Chapter of the Act. In other words, we may also say that Section 29 clearly envisages itself that CPC in terms, is not to apply to a proceeding before the R.C.A. Indeed, it is for that reason that the legislature has envisaged thereunder that to suit particular circumstances of any case only these powers as are specified in Sub-section (1) of Section 29 can he exercised by R.C.A. to deal with matters effectively as lying within its special jurisdiction. We are definitely of the view that even if any Rules are framed in derogation of the parent law, namely Section 50 read with Section 29(d) of the Act, those Rules can in no manner impair or indent the purpose, object and indeed the scope of the special law enacted in Chapter III-A. On the rationale of the two decisions if we have to say anything else, we may add that the words "under this Act" appearing in Section 31 must yield in primacy to the words "under this Chapter" used in Section 23-E, but that imperative was ignored. R.C.A.''s order passed in relation to any proceeding not relatable to an application u/s 23-A may attract Section 31, but that provision can have no scope to operate in the field occupied by Sections 23-A and 23-B of Chapter III-A which must obviously exclude operation of the general law contained in chapter V.
For all the aforesaid reasons, we are of the view that the law laid down by this Court in the afore-cited two decisions on the scope of Section 31 of the Act needs to be reviewed. For the various reasons aforesaid and our conclusion above-referred, we have taken the view that law has not been laid down correctly in those two decisions in that regard. We are clear in our minds that when R.C.A. exercises its jurisdiction in relation to an application u/s 23-A of the Act by passing any order with respect to trial or disposal of that application and not only when the final order is rendered in the proceeding, that decision would be only to revision by this Court u/s 23-B, indeed, all interlocutory orders by the R.C.A. with respect to that proceeding u/s 23-A would only be revisahle by the Court. In respect of those orders appeallate jurisdiction u/s 31 cannot be exercised, that is barred u/s 23-E(1). Additional support for this view has to be read in Sub-section (2) of Section 23-E which High Court is authorised to act even suo motu "for the purpose of satisfying itself as to the legality, propriety or correctness of any order passed by or as to the regularity of the proceeding of the R.C.A.". Emphasis added Legislature''s deliberate endeavour to ensure time-bound disposal of the proceedings u/s 23-A has to be judicially supported by giving due importance to the two words "any order", in both Sub-sections (1) and (2) of Section 23-B.
In the result, we have no hesitation to hold that this petition must succeed and it is accordingly-allowed. We hold that the second Additional Judge to the Court of District Judge Gwalior, in whose Court Civil Misc. Appeal No. 67 of 1988 is pending, has no jurisdiction to entertain and decide that appeal. That appeal has to be dismissed as not maintainable and necessary order in that regard shall be passed by the learned Second Additional Judge. Let a copy of this order be communicated to him for doing the needful. No. costs.