JAGDISH LAL SAH Vs. ADDITIONAL DISTRICT JUDGE NAINITAL

JUDGEMENT

(1.) BY means of this petition, moved under Article 227 read with Article 226 of Constitution of India, the petitioner has sought direction, quashing the impugned judgments and orders dated 31.3.1998 and 12.7.2002, passed by respondent Nos. 2 and 1 respectively, whereby the release application of the petitioner/landlord was rejected, and the appeal was also dismissed.

(2.) BRIEF facts of the case, as narrated in the petition, are that the petitioner is the landlord of accommodation in question, consisting of three rooms, a kitchen, bathroom and verandah, situated in 3rd floor of house No. 97/98, Bara Bazar, Mallital, Nainital. In said accommodation, Shri Gopal San was the tenant on rent at the rate of Rs. 500 per month. On 29.11.1987, the petitioner moved an application under Section 21(1)(a) of U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, before the Prescribed Authority, Nainital. for release of the above accommodation. During the pendency of the release application, Shri Gopal Sah (tenant), died on 9.10.1988. He was an issueless person having lost his wife before his death. In the circumstances, the petitioner got substituted his real sister Smt. Parwati Sah, under Section 34 (4) of U. P. Act No. 13 of 1972, in the proceedings of the release application. Smt. Parwati Sah, stated before the prescribed authority that she had no objection if the accommodation is released in favour of the landlord/ petitioner. However, Smt. Parwati Sah also died and her daughter Smt. Janki Sah was substituted and she too filed affidavit that she has no concern with the property in dispute. In the circumstances, respondent No. 3 Manoj Kumar Sah, moved an application for his impalement on the ground that Shri Gopal Sah has executed a Will dated 8.9.1986 in his favour giving him all his property. He further stated that he was living with Shri Gopal Sah, as such, has inherited the tenancy. Learned prescribed authority appears to have allowed the said application. After accepting evidence in the form of affidavits, filed by the parties and hearing them, prescribed authority, vide its order dated 31.3.1998 (copy Annexure -2 to the petition), rejected the application of the petitioner holding that his need is not bona fide. Aggrieved by said order, the petitioner filed an appeal under Section 22 of U. P. Act No. 13 of 1972, before the appellate court, which was registered as Rent Control Appeal No. 4 of 1998. During the pendency of appeal, an amendment was made by Legislature in Section 2 of Act No.' 13 of 1972, whereby the Act was made inapplicable to the accommodation of which rent exceeds Rs. 2,000 per month, The appellate court, vide its order dated 17.11.2000, rejected the application of respondent No. 3 to raise objection on that ground. Thereafter, respondent No. 3, filed a Writ Petition No. 196 of 2000, against said order of rejection but. the same was withdrawn by him on 13.3.2001. But the appellate court, (respondent No. 1), after hearing the parties, dismissed the appeal on 12.7.2002 (copy Annexure -6 to the petition), on the ground that the provisions of U. P. Act No. 13 of 1972, are inapplicable to the building in question, as its rent is more than 2,000 per month. It further held that the need of the landlord is not bona fide. Hence, this petition was filed by the landlord, challenging both the impugned orders, passed by the prescribed authority as well as the appellate court (respondent No. 1), on the ground that the authorities below have erred in law in rejecting the release application of the landlord. Impugned orders are challenged also on the ground that respondent No. 3 is not legal heir of the deceased (original tenant). The landlord has also alleged that the provisions of U. P. Act No. 13 of 1972 are applicable to the building in question. He has further alleged that both the parties below have erred in law in holding that the need of the landlord is not bona fide, even after being established that the petitioner is a cancer patient and has breathing problem in scaling up the house at high altitude. The petitioner has further alleged that merely for the reason that he had constructed a house in Ayarpatta, Nainital, which is situated at an isolated place on a higher altitude, the need of the petitioner for the accommodation does not get diluted. Lastly, it has been mentioned in the grounds of the petition that authorities below have ignored that respondent No. 3 has neither paid any rent to the petitioner since 1989.

(3.) I heard learned Counsel for the parties and perused the record.