DHIRENDRA MOHAN SEKSENA Vs. PRESCRIBED AUTHORITY, EEILLY

JUDGEMENT

(1.) THIS petition is filed for quashing the order dated 22nd April, 1988, Annexure 2 to the writ petition passed by the respondent No. 2 rejecting the application of the petitioner for release of the accommodation situate in Bareilly under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, the Act, 1972). The respondent No. 3 is the tenant of the said accommodation. The petitioner averred that his need for the accommodation was bonafide. The said application was allowed by the Prescribed Authority by the order dated 5th December, 1986, Annexure 1 to the writ petition accepting the case of the petitioner that his need for the accommodation was bonafide. The respondent No. 3 preferred an appeal before the learned V. Additional District Judge, Bareilly against the said order. Before the learned Additional District Judge, the petitioner reiterated that the tenant had built up a house that is 35/1-41-42, Rampur Garden in the same city, namely, Bareilly and, therefore, Explanation (i) to Section 21 of the Act, 1972 is applicable and consequently no objection by the tenant against the petitioner's application could be entertained. Both the Prescribed Authority as well as the appellate Court rejected such contention of the petitioner. Whereas the prescribed authority accepted the contention of the petitioner that he required the accommodation bonafide the appellate Court took the view that the petitioner failed to rebut the case of the tenant that the former had possessed of several buildings, and, therefore, his need was bonafide. That is why the appellate Court reversed the order of the prescribed authority and rejected the release application of the petitioner.

(2.) BEFORE me, the learned counsel for the petitioner heavily relied on the Explanation (i) to Section 21 of the Act and contended on that basis that the tenant having built up a house in Bareilly itself where the suit accommodation is situate, no objection from him against the release application could be entertained within the meaning of the said Explanation (i) to Section 21 of the Act and contended on that basis that the tenant having built up a house in Bereilly itself where the suit accommodation is situate, no objection from him against the release application could be entertained within the meaning of the said Explanation. In support of his contention, the learned counsel for the petitioner relied on Jan Mohammad alias Jan v. VII additional District Judge, Meerut and another, 1987(2) ARC 21, Ravendra Prakash Sharma v. Kamlesh Chandra and others, 1988(1) ARC 408, Smt. I.B. Paul v. VI Additional District Judge, Meerut and others, 1988(2) ARC 275 and Smt. Shakuntala Sharma and others v. Appellate Authority, Moradabad, 1989(1) ARC 492. The common ratio of all these authorities is that the tenant having built up a house in the same town where the accommodation release of which is sought, is situate, becomes disentitled to raise any objection against the release application. However, both the prescribed authority and the appellate authority relied on Sharda prasad v. Smt. Sampati Devi and others, 1983(1) ARC 378, in which learned Single Judge took a contrary view that despite the fact that the tenant had built up a house in the same town, the petitioner is under legal obligation under the provisions of main Section 21 of the Act to establish his bonafide need and unless such burden is discharged, the petitioner could not succeed merely by virtue of the fact that the tenant had built up house in the same town. The learned Judge, taking contrary view observed :

(3.) ONE these facts the view taken by the Prescribed Authority that the petitioner successfully established his bonafide need and according to the respondent No. 2, the respondent No. 3 having built up his own house in Bareilly, comparison of hardship between the tenant and the landlord has to be dispensed with.