Talib Husain v. 1st Additional District Judge, Nainital
1986-09-25
A.BANERJI
body1986
DigiLaw.ai
JUDGMENT A. Banerji, J. - Petitioners 1 and 2 are father and son. The petitioners had occupied one room and Sehari situate in the second storey of the house bearing No. 24/22 Karkhana Bazar, Haldwani, District Nainital. The premises was occupied by the petitioners without any allotment order. A vacancy was declared in respect of the above accommodation on 9th July, 1979 by the Rent Control & Eviction Officer. The petitioners made an application for allotment of the same, as they apprehended eviction at the instance of the landlord. The landlord, however, applied for release of the building in his favour under Section 16 of the U.P. Urban Buildings (Regulations of Letting Rent and Eviction) Act, 1972 (Act No. 13 of 1972). The landlord's case was that the petitioners had forcibly occupied the premises after it was vacated by the previous tenant Mohammad Siddique. The landlord claimed that he required the building bonafide for his son Mohammad Ilyas. 2. It is undisputed that the application for allotment of the premises was made by the petitioners prior in time then that of the landlord for the release of the said accommodation. The Prescribed Authority confirmed the order of vacancy passed by the Rent Control and Eviction Officer and further passed an order of 14th of April, 1981 releasing the accommodation in favour of the landlord. The Prescribed Authority also observed that in the matter of release under Section 16 of the Act, a prospective allottee has no say. The petitioners went up in revision before the District Judge. The revision was dismissed by an order dated 2nd July, 1982 on the ground that the same was not maintainable, as the prospective allottee has no say in the matter of release under Section 16 of the Act. There upon the petitioners had come up to this court under Article 226 of the Constitution. I had admitted the petition on 15th of July, 1982 and had also made an order of reference to a larger Bench to consider the following question : "Whether a prospective allottee has a right to file an objection and contest the application for release made by the landlord for a building or a part thereof after the deletion of the original Rule 13(4) of the Rules Under the U.P. Act No. 13 of 1972 ?" 3. The matter was placed before a Full Bench.
The matter was placed before a Full Bench. The Full Bench by its judgment dated October 3, 1985, answered the question in the negative and held that the prospective allottee has no right to file an objection and contest the application for release made by the landlord for a building or a part there of even after the deletion of the original rule 13(4) of the Rules framed under U.P. Act 13 of 1972. 4. Since the view taken by the Prescribed Authority and the revising authority has been upheld, this petition must fail. 5. Today's date was fixed for delivery of judgment. Mr. Rajesh Tandon, learned counsel for the petitioner, who did not appear on previous occasion i.e. 9th September, 1986, has appeared today and submitted that the view taken in the case of Talib Husain and another v. 1st Additional District Judge, Nainital and Ors., FB All HC dated 3.10.85 has been impliedly overruled in two decisions of the Supreme Court. He referred to a certified copy of the order passed in Civil Appeal No. 2570 of 1986 arising out of S.L.P. (C) No. 8985 of 1986 Naubat Ram Sharma v. Addl. District Judge II Moradabad and others, CA No. 2570 of 1986 (SC). In this case, learned counsel for the respondents made a concession that the matter may be heard on merits by the High Court and the respondents will not take up any point before the High Court that the appellants are not entitled to be heard on merits in view of the Full Bench Judgment of the High Court of Allahabad. The case was remanded back to the High Court to be heard on merits. Their Lordship observed, "We are not expressing any opinion on the correctness or otherwise of the High Court's Judgment." 6. In the other case G.K. Pillai v. Addl. District Judge, IVth Lucknow, CA No. 5103 of 1985 (SC) their Lordships held that in view of the peculiar facts of the case, the order of the High Court dated 18th April 1986 as also the ex-parte order of release passed in favour of the landlord are set aside and the matter is remanded back to the Prescribed Authority to dispose of the questions involved, after giving notice to and bearing bath the parties in accordance with law. 7.
7. Learned counsel urged that in view of these observations, the Full Bench judgment in the case of Talib Husain and another v. 1st Addl. District Judge (supra) is impliedly over ruled. I am bound by the Full Bench judgment of this Court and there is nothing express in the two orders of their lordships of the Supreme Court indicating that the view taken in the Full Bench decision is bad in law. It is true that there was a remand order in each of these cases. In one case there was a concession and in the other the facts were found to be peculiar and, as such, orders of remand were passed in both the cases. The question whether the Full Bench judgment is correct or not may be seen when the matter goes before the Supreme Court. It is not open to a single Judge to doubt the correctness of the Full Bench decision. 8. In the result, therefore, the Writ Petition fails and is dismissed. It is held that the petitioners had no right to file an objection and contest the application for release made by the landlord for the disputed premises. In the circumstances of the case, I direct the parties to bear their own costs. The petitioners may not be dispossessed from the premises in dispute for a period of two months from today. 9. After pronouncement of the judgment, learned counsel for the petitioner orally prayed for a certificate that the case is a fit one for appeal to the Supreme Court, Apparently, the prayer was made keeping in view the provisions of Article 134-A. But that provision has no application to the decision of one Judge of a High Court. The prayer made by the learned counsel is thus mis-conceived and is rejected.