Judgment:
Mukteshwar Prasad, J.
1. This petition by the landlord under Article 226/ 227 of the Constitution of India has been filed for issuance of a writ of certiorari quashing the judgment and order-dated 26.8.1998 passed by respondent No. 1 (Annexure-6 to the writ petition) in Rent Control Appeal No. 319 of 1995, Mumtazul Haq v. Smt. Khursheeda and Ors., and judgment and order-dated 23.9.1995 passed by respondent No. 2 in P.A. Case No. 74/84 (Annexure-2 to the writ petition).
2. Counter and rejoinder affidavits have been exchanged between the parties and are on record.
3. I have heard Sri M.S. Haq, learned Counsel for the petitioner and Sri M. Islam, learned Counsel for the respondents. With the consent of the learned Counsel for the parties, this petition is being disposed of finally at this stage.
4. It appears that an application for release was filed under Section 21 (i) (a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the 'Act') by the landlord in the year 1984 mainly on the ground that the landlord needed the accommodation in question for purposes of opening an office and for other purposes mentioned in the Waqfnama. The tenants had sufficient accommodation in the City of Allahabad for their residence and had already purchased a flat in Pritam Nagar Colony, Allahabad developed by the Allahabad Development Authority. The tenants contested the petition. The parties filed their affidavits and led documentary evidence also.
5. After having regard heard learned Counsel for the parties and considering material on record, learned Prescribed Authority dismissed the application for release on 23.9.1995.
6. The landlord filed Rent Control Appeal No. 319/95 under Section 22 of the Act, which was dismissed solely on the ground that building in question being waqf property was exempted from the operation of the Act in view of insertion of Clause (bbb) in Sub-section (1) of Section 2 of the Act.
7. The tenants-respondents filed counter affidavit mainly on the grounds that the landlord has challenged the appellate order-dated 26.8.1998 passed by the appellate Court in the year 2002 and the petition deserves to be dismissed on account of laches and inordinate delay and the petitioner is entitled to no relief by this Court. It was also stated that the appellate Court decided the appeal in the light of the decision of this Court as was prevalent at that time and the judgment is in accordance with law.
8. A rejoinder affidavit has been filed by the petitioner mainly on the ground that after judgment of the Supreme Court and the judgment of the Division Bench of this Court in Champa Devi (Smt.) and Anr. v. Rent Control and Eviction Officer (1st), Allahabad and Anr., 2002 (1) ARC 192, it is now settled that amendment made in Section 2 of the Act regarding exemption is prospective and will not affect proceedings pending on the date of enforcement of the amending Act, 1995. The petitioner has enclosed a judgment of this Court dated 23.4.2004 passed in Civil Misc. Writ Petition No. 29438 of 2001, Smt. Khursheeda and Ors. v. XVIIIth Additional District Judge, Allahabad and Ors., (reported in 2004 (2) ARC 64).
9. Learned Counsel for the petitioner has urged with vehemence that the appellate Court erred in dismissing the appeal on the sole ground that the property in question being waqf property was exempted from the operation of the Act and as such, the Prescribed Authority committed error of law in entertaining the petition and the appeal was dismissed. After decision of the appeal, the law has changed and it was held by a Division Bench of this Court in the year 2002 that the amending Act will not affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995.
10. Reliance was placed on a decision of this Court in Khurshid (Smt.) and Ors. v. XVIIIth Additional District Judge, and Ors., 2004 (2) ARC 64 wherein it was clearly held that amendment made in Section 2 of the Act is not retrospective and will not apply to the suits/proceedings which were instituted prior to the insertion of this clause i.e. prior to 26.9.1994. Therefore, the order passed by the appellate. Court is liable to be set aside.
11. On the other hand, learned Counsel for the respondents has supported the appellate order and has submitted that the appellate Court committed no illegality in dismissing the appeal and decided the appeal in accordance with the decision of this Court which was in force at the time. Moreover, this petition was filed four years of the judgment passed by the appellate Court and as such, on account of laches and inordinate delay, the petition is liable to be dismissed with costs.
12. I have considered the submissions made on behalf of the parties and have gone through the material on record.
13. As mentioned above, the appellate Court allowed the appeal solely on the ground that building in question being waqf property was exempted from the operation of the Act and as such, the finding recorded by the Prescribed Authority was without jurisdiction and the order passed was a nullity. The appeal was, therefore, dismissed.
14. Now it is well settled by a decision of the Division Bench of this Court in Smt. Champa Devi's case (Supra) decided on 11.1.2002 and subsequently by a decision of a single Judge in Smt, Khurshid's case (Supra) that the amending Act which came into force w.e.f. 26.9.1994 would not affect the proceedings pending on the date of enforcement of the Act. Admittedly, the application for release was filed in the year 1984 and was pending on 26.9.1994. It is, therefore, held that the provisions of U.P. Act No. 13 of 1972 were applicable to the building in question. It is noteworthy, that the single Judge has also held in Smt. Khurshid's case (Supra) that the said amendment in the act is not retrospective and will not apply to the suits, which were instituted prior to 26.9.1994. In this view of the matter, the judgment of the appellate Court is liable to be set aside and the case has to be remanded to the appellate Court for deciding the appeal on merits.
15. For the aforesaid reasons, I hold that this petition has merits and it must succeed. The case has to be remand to the appellate Court for deciding the matter afresh on merits in accordance with law.
16. Consequently, the petition is allowed and the impugned judgment and order-dated 26.8.1998 passed by respondent No. 1 is hereby quashed and the matter is remanded to the appellate Court for deciding the matter afresh on merits expeditiously in accordance with law and in the light of the observations made above. There shall be no order as to costs.
17. A copy of this order may be supplied to the parties on payment of usual charges within a week.