RAM JANKI Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India filed by the petitioner-landlord challenges the order passed by the appellate authority under Section 22 of the U.P. Act No. 22 of 1972 whereby the appeal filed by the petitioner-landlord against the order of the prescribed authority was dismissed.

(2.) In short the facts leading to filing of the present writ petition are that the petitioners are admittedly owner and landlord of the House No. 673 K.L. Kydganj, Allahabad. Late Laxmi Sahai Saxena was the tenant of the ground floor portion of the house in dispute. The landlord filed an application under Section 21 (1) (a) of U.P. Act No. 13 of 1972 for release of ground floor portion in favour of the landlord before the prescribed authority which was registered as P.A. Case No. 117 of 1989. The prescribed authority rejected the application. Though the prescribed authority has recorded a finding that as comparative hardship of the tenant has not been considered in view of the Explanation to the Section 21 (1) of the U.P. Act No. 13 of 1972 has been attracted to the controversy in dispute but nonetheless in view of the Division Bench decision of this Court reported in 1984 ARC (2) 245; Smt. Kamta Devi Jain v. Additional District Judge, Dehradun and Ors. wherein the Division Bench after considering the Explanation 1 to Section 21 which reads as under wherein Section 21 alongwith its Explanation has been considered by the Division Bench where a tenant or any member of his family who has been normally residing with or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained.

(3.) The landlord filed another application for the release of first floor portion of the same house which was under the tenancy of late Bhagwan Sahai Saxena who was brother of late Laxmi Sahai Saxena. This case was registered as P.A. Case No. 118 of 1989. Late Bhagwan Sahai Saxena claimed that he has never accepted the tenancy of the first floor portion. The prescribed authority by its order dated 3.9.1996 has found that the need of the landlord is bonafide and on comparison since the case is also covered by the Explanation 1 to Section 21 (1), released the accommodation situated at the first floor in favour of the landlord. Aggrieved by the order of the prescribed authority in both the cases the landlord and the tenant filed appeals being RCA No. 81 of 1997 against Smt. Malti Saxena who died during the pendency of the litigation. Three appeals were filed one by Smt. Malti Saxena being appeal No. 269 of 1996; Smt. Malti Devi v. Smt. Ram Janki Devi and Ors., second by Smt. Asha Saxena being appeal No. 270 of 1996; Smt. Asha Saxena v. Smt Ram Janki Devi and Ors. and third by Smt. Ram Janki Devi appeal No. 81 of 1997; Smt. Ramjanki Devi v. Smt. Malti Saxena. Rent Control Appeal Nos. 269 of 1996 and 81 of 1997 filed by both the parties against the judgment and order dated 3.9.1996 arising out of P.A. Case No. 117 of 1989 and appeal No. 270 of 1996 arising out of P.A. case No. 118 of 1989. The District Judge found that the need of the landlord is bonafide he therefore, released the first floor portion of the disputed house which was under the tenancy of Smt. Asha Saxena wife of late Bhagwan Sahai Saxena and dismissed the appeal filed by the petitioner against the order arising out of P.A. Case No. 118 of 1989.