OM PRAKASH JAISWAL Vs. PRESCRIBED AUTHORITY ALLAHABAD

JUDGEMENT

(1.) THE only question that arises for consideration in these two petitions is whether an application filed u/Sec. 21 (1) (a) of U. P. Act XIII of 1972 for release of accommodation was not maintainable as similar application had been withdrawn within a year. It is not disputed that the first application for release was permitted to be withdrawn on 11-1-1979 on an application filed on behalf of opposite party. THEreafter the present application was filed on 4th July, 1979. It was objected to by petitioner who is the tenant and it was claimed that the application having been filed within one year it was not maintainable in view of sub-rule (2) of rule 18 of the rules framed under U. P. Act XIII of 1972. THE Prescribed Authority did not accept it as the earlier application was not decided on merits. Rule 18 (2) reads as under :

(2.) A bare perusal of the rule indicates that it does not debar a landlord from moving an application within one year. It enjoins upon the Prescribed Authority to accept the findings recorded in earlier proceedings while deciding such application. In a case where proceedings have been withdrawn and there was no adjudication on merits there were no finding which could have been relied or no basis of which the application filed by the landlord could have been decided. Reliance has been placed on Shailnder Nath v. District Judge, 1979 UP RCC p. 7 and Raj Narain v. Mil. District Judge, 1979 Alld. Rent Cases 61 and it is urged that second application for release was not maintainable. That is not correct reading of those decisions. As is clear from the rule itself it is making of fresh application within one year on same ground which has been impliedly barred by imparting conclusiveness to the earlier finding. But in absence of any finding the argument of learned counsel for petitioner that withdrawal of application due to enhancement of rent may be construed as implied finding that need of landlord was not bonafide cannot be accepted.