RAM PRASAD MISRA Vs. DISTRICT JUDGE KANPUR

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India arising out of proceedings for allotment in respect of portion of first floor of house No. 24/24 -B, Karachi Khana, Kanpur. The Petitioners Nos. 1 to 4 are the landlords of the said premises. The said premises fell vacant. Petitioners Nos. 1 to 4 nominated Vinod Mehra Respondent No. 5 for the purposes of allotment under Section 17(2) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act. The Rent Control and Eviction Officer, however, allotted the premises in favour of Shyam Sunder Bhatia, Advocate, who was also an applicant for allotment, holding that the question of nomination in the case does not arise as the provisions of Section 17(2) of the Act did not apply. Against the allotment order dated 12th November. 1974, passed in favour of Shyam Sunder Bhatia, the Petitioners filed an appeal, The appeal came up for hearing before the VIIIth Additional District Judge, Kanpur, who by his judgment dated 27th August 1975, dismissed the appeal. Aggrieved the present petition has been filed challenging the orders dated 12th November 1974 and 27th August 1975.

(2.) SRI S.K. Mukerji has made two submissions before me. His first submission is that the properly in dispute was a part of a building of which the other part was in occupation of the Petitioners Nos. 1 to 4 and as such the Petitioners Nos. 1 to 4 had a right to nominate a person of their choice under Section 17(2) of the Act. The view to the contrary taken by the appellate court is manifestly erroneous. His second submission is that the mere fact that the property in dispute was used for non -residential purposes does not disentitle the Petitioners Nos. 1 to 4 to nominate a person under Section 17, Sub -clause (2) of the Act. The view to the contrary taken by the appellate court is manifestly erroneous in law.

(3.) FROM the explanation now added it is clear that Section 17, Sub -section (2) of the Act has been further explained to include a building where there is a common entrance to the portion sought to be allotted and the portion in occupation of the landlord for residential purposes. In the instant case there is a common entrance to both the first floor as well the second floor. The second floor is a building vertically adjoining the first floor. In the circumstances the Explanation to Section 17, Sub -section (2) of the Act fully applied to the facts of the present case. In this view of the matter the building sought to be allotted would come within the meaning of Section 17, Sub -section (2) of the Act. The view to the contrary taken by the appellate court is manifestly erroneous.