UDAI NARAIN RAI Vs. DISTRICT JUDGE BALLIA AND

JUDGEMENT

(1.) SRI Kanti Swarup was a tenant of the premises in question. He vacated the premises on June 24, 1972. Respondent No. 4 Ram Bichar Pandey is the landlord of the premises. He filed an application before the District Supply Officer on June 9, 1972 for release of the premises in his favour on its being vacated by the tenant on the ground that he and his wife were doctors by profession and they desired to run a nursing home in the premises. The District Supply Officer allotted the premises on October 23, 1972 to Udai Narain Rai, A.P.P. who succeeded SRI Kanti Swarup. An appeal was filed against this allotment order by respondent No. 4 which was allowed on February 7, 1973. The allotment order in favour of Udai Narain the present petitioner was set aside and the case was remanded back to District Supply Officer with the direction that he should first decide the release application and then proceed with the allotment proceedings. On remand the District Supply Officer rejected the application of respondent No. 4 for release of the premises vide his order dated January 24, 1973. An appeal there from was allowed by the District Judge, Ballia and the premises in question were ordered to be released in favour of the landlord vide order dated July 19, 1974. Aggrieved thereby, the present writ petition has been filed. I have heard counsel for the parties and have also perused the documents on the record. The District Judge has arrived at a finding of fact that the premises in question is bona fide required by the landlord. In other words, he has held that the need of the landlord is bona fide and genuine, in as much as the premises in question were required for running a clinic and a nursing home. This is a pure finding of fact which cannot be interfered with in the exercise of writ jurisdiction. I do not find any error or illegality in this finding. Nothing has been pointed out to me to show that this finding is erroneous on the fact of the record. Learned counsel has referred to certain statements alleged to have been made in the course of the proceedings, but in my view, it is not open to me to go into the question to assess its reliability or otherwise of the evidence on the record. As such, on merits I do not find any force in this writ petition. The petitioner's counsel has then urged that Rule 13(4) framed under the U.P. Urban Buildings Act, 1972 is ultra vires of Section 16 (b) of the Act. Rule 13(4) runs as follows: - "Every application under Section 16 (1) (b) shall be a matter between the District Magistrate and the landlord and the outgoing tenant or the prospective allottee if any shall have no right to file any objection against it." Learned counsel submits that this restriction on the right of the perspective allottee is contrary to the objects of the Act as laid down in the preamble. From a perusal of Section 16 of the aforesaid Act it is clear that the District Magistrate has been empowered to require a landlord to let out any building which has fallen vacant or about to fall vacant or to release the whole or part of any building in favour of the landlord. This is a two fold power which has been given to the District Magistrate. As soon as a vacancy occurs and the landlord applies for release of the accommodation in his favour it is incumbent upon the District Magistrate to consider this application. If he is satisfied under Section 16 (2) of the Act that the premises is bona fide required by the landlord for his need, he has no other alternative but to pass an order releasing the property in favour of the landlord. The question of allotment to prospective allottees therefore does not arise in cases where the premises is released in favour of the landlord. In order to make Section 16 (6) effective, rule 13 (4) has been framed. Needless to point out that this rule has been framed under rule making power embodied under Section 41 of the U.P. Urban Buildings Act, 1972. The prospective allottee or the outgoing tenant can have no right whatsoever to interfere with the discretion of the District Magistrate and to file objection until a stage is arrived at by him when he refuses to release the premises in favour of the landlord and declares a vacancy. For this purpose the legislature has very rightly enacted that no objection may be filed by a prospective allottee at the stage when the District Magistrate is considering the application for release filed by the landlord under Section 16(1) (b) of the Act. For the reasons given above, I do not find any force in the contention of the petitioner's counsel that rule 13(4) is ultra vires or beyond ruling making power conferred under the Act The petitioner's counsel has lastly argued that the District Judge could not direct, by his impugned order the release of the accommodation in favour of the landlord respondent No 4 and he should have remanded the case. I am not inclined to accept this contention either. Under Section 18 a person aggrieved by an order passed under Section 16 has a right to file an appeal to the District fudge. The provisions of Section 10 of the Act applies mutatis mutandis to such an appeal. Section 10 (2) of the said Act empowers the appellate authority to confirm, very or rescind the order or to remand the case to District Magistrate for rehearing. The appellate authority can clearly exercise any of these powers which has been conferred upon it by Section 10 (2). Remand of the case is not in my opinion the only course open to it as suggested by learned counsel. The order of the District Judge therefore releasing the property in favour of the landlord is a perfectly legal and valid order and it is not necessary that in passing such order while reversing the order of the Prescribed Authority the District Judge should be forced to remand the case again to the former for passing an order of release. For the reasons given above, I do not find any force in this writ petition which is hereby dismissed with costs. Stay order passed by this Court on September 19, 1973 is hereby vacate.