SHAMSE ALAM Vs. DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) SUDHIR Narain, J. The petitioner has sought a writ of certiorari quashing the order dated 15-2-1995 passed by the Prescribed Authority allowing the release ap plication filed by respondent No. 3 under Section 21 (1) (a) of U. P. Urban Build ings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and the order dated 1-12-1995 passed by respondent No. 1 affirming the said order in appeal. ; '

(2.) RESPONDENT No. 3 filed application for release of the shop in question on the allegation that Smt. Husna Khatoon, his mother, was its owner and landlord. In the year 1991 the said shop came in his share in a family settlement. He is a young man aged about 28 years, married and unemployed. He wants the shop in dispute for setting up himself in business. The petitioner is tenant of the disputed shop but he has put his lock since 1972 and is running his Gun shop in Mohalla Khoinipur, district Gorakhpur and does not require the shop in question.

(3.) THE version of respondent No. 3 is that Smt. Husna Khatoon, his mother, was landlady and in family settlement the said shop came into his share in the year 1991. It is not denied that Smt. Husna Khatoon was realising the rent exclusively from the petitioner. It is not averred that Smt. Husna Khatoon is still receiving the rent from the petitioner. On the other hand as affidavit purporting to have been signed by Smt. Husna Khatoon was filed by respondent No. 3 affirming that family settlement has taken place in which the disputed shop has been exclusively given to the respondent No. 3. Authenticity of this affidavit was challenged by the petitioner before the Prescribed Authority. THE Prescribed Authority summoned the register maintained by the Oath Commissioner and it was found that signature of Smt. Husna Khatoon did not appear in the register maintained by the Oath Commis sioner. This fact itself was not sufficient to establish that no affidavit was sworn by Smt. Husana Khatoon. It is an irregularity or lapse on the part of Oath Commis sioner. THE Oath Commissioner had verified the signature of Smt. Husna Khatoon on the affidavit which was filed before Prescribed Authority.