DELHI TRADING CO. Vs. MAHENDRA KUMAR KHANNA

JUDGEMENT

(1.) CONTENTION of the learned counsel in support of this application for review directed against this decision of the Court dated 23rd July, 1985, in Civil Revision No. 342 of 1983 is that in Section 39 of the U.P. Act No. XIII of 1972 the words "Commencement of this Act" cannot be equated with the application of the Act. The submission is that as per Section 1(4) read with the relevant notification made by the State Government this Act was enforced on July 15, 1972. Section 2(2) pertains to application of the Act to buildings in reference to the date of the constructions thereof. For the applicant respondent the contention in the revision was that the building in question be taken as constructed on October 1, 1947. This Court held that assuming this to be so since the period of ten years expired during the pendency of the revision and before this came to be heard and decided on July 23, 1985, the Act became applicable in any case.

(2.) THE point raised for the applicant in review is not res integra. In Vineet Kumar v. Mangal Sain Wadhera, 1984 All. L.J. 102. 1984(1) RCR 302, the question raised before the Supreme Court precisely whether the appellant therein was entitled to the benefit of Section 39 of the Act as the building had become ten years' old on the date when the revision petition was heard. The building had become more than ten years old during the pendency of the litigation in that case and this gave rise to the question as to the applicability of Section 39. The question was decided in the affirmative holding that in such a case Sections 39/40 are attracted and the tenant is entitled to benefit thereunder provided other conditions laid in these provisions are satisfied. This therefore, is a clear authority for the proposition that where, as in the present case, the building became ten years old during the pendency of the revision, the benefit under Section 39/40 can be availed by the tenant concerned.

(3.) LEARNED counsel refers to the law of precedent. In Mattulal v. Radhe Lal, A.I.R. 1974 SC 1596, it was pointed out that the decision in 1966 MPLJ 26 (SC) decided by a Bench of four Hon'ble Judges, the later judgment by a Bench of three Judges reported in AIR 1969 NSC 186 was not brought to the notice. Their Lordships preferred to follow the decision in 1966 MPLJ 26 as that was a decision of a larger Bench and moreover since on principle this commended to their lordships as having advanced the right view. In State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547, also cited for the applicant it was also stated that even in case where a High Court finds conflict between the views expressed by larger and smaller Benches of the Supreme Court, it cannot disregard the views expressed by the higher Benches. It may not be overlooked so far as the instant case is concerned that in Vineet Kumar a pointed reference was made to the earlier decision recorded in Om Parkash Gupta and the same has as well, been explained as being inapplicable to the facts because in that earlier case the building had not completed the requisite period since its construction by the time the revision was heard. This constitutes the material distinguishing feature in face where of these authorities cited for the applicant can be of no avail to him. Recently in Javed Ahmed Abdul Aamid Pawala v. State of Maharashtra, (1985)1 SCC 275, the observation made at page 283 (though there was no decision on the point) is "The Court sits in Divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to over rule the decision of a Division Bench of two Judges. It may be otherwise where a Full Bench or a Constitution Bench does so" The question indeed does not arise in the instant case, for as explained above, there is no conflict between the decisions in Vineet Kumar (which is directly on point) and Om Parkash Gupta.