SUSHILA DWIVEDI Vs. ASHOK KUMAR SAHAI

JUDGEMENT

(1.) CONTROVERSY in this writ petition rellates to (southern) half portion of House no. B-5 Sector A Mahanagar, Lucknow. Respondent Ashok Kumar Sahai claimed ownership of this house by inheritance from his mother. One S. K. Misra was the tenant of this disputed portion of the house. Smt. Asha Misra wife of S. K. Misra built their house in another section of Mahanagar. Respondent Ashok Kumar Sahai moved application under Section 16 (1) (b) of U. P. Act XIII of 72 on 6-11-1981 seeking release of this accommodation on the ground that this was his only house at Lucknow or elsewhere and it was needed by him for use and occupation by him and his wife and that it will not be let out to any one The need was stated to be bonafide, genuine and pressing. Smt Sushila Dwivedi, the petitioner in this writ petition moved an application before the Rent Control Officer stating about its vacancy by S. K. Misra and praying for allotment thereof in her favour. This application for allotment and Ashok Kumar Sahai's application for release were taken up together by Additional District Magistrate (Civil Supplies) Lucknow and were disposed of by his judgment and order dated 12-10-1983 (Annexure-4). Ashok Kumar Sahai at that time was posted as Wing Commaner Air Force at Agra. The learned Additional District Magistrate (Civil Supplies) rejected the release application on the ground that the landlord was posted at-Agra and his family was also residing with him,' and as such this accommodation was not bonafide needed by him. Release was held unjustified on another ground also. The northern half portion of the house was found to have been let out to the State Government for N. C. C. Office since 1979 and it was observed that if the landlord really needed any accommodation at Lucknow he would not have extended the lease in favour of U. P. Government for N. C. C. Office. Another factor referred to was that the northern portion was let out to the N. C. C. Department without involving the Rent Control Authorities. The contention raised on behalf of the landlord that prospective allottee had no say in the matter of release of an accommodation in favour of the landlord was repelled with the observation that the matter of release is no doubt between landlord and the State but since the court does not have any agency to dig out reality and the same is sought to be brought on record by prospective allottee and it is help ful in the lawful and just decision of the case it should not be shut out. The need of Smt. Sushila Dwivedi for allotment of the accommodation was found to be genuine and pressing. Accordingly, the release application was rejected and this accommodation was allotted in favour of Smt. v Sushila Dwivedi, petitioner.

(2.) THE order of the Additional District Magistrate (Civil Supplies) dated 12-10-1983 was challenged in revision under Section 18 of the Act before the District Judge, Lucknow on the ground that the landlord being Squadron Leader in the Air Force is an Indian Soldier and is entitled to have the premises released for residence of his family and that the Additional District Magistrate (Civil Supplies) failed to consider this aspect of the matter and acted illegally and with material irregularity in accepting the affidavit of opposite Smt. Sushila Dwivedi behind the back of the landlord. This revision was opposed by the present petitioner. Subsequent development intervened; meanwhile Ashok Kumar Sahai, landlord was granted premature retirement as Squadron Leader in the Air Force on 31-7-1987. He moved application for release of the northern half portion of the house against the State of U. P. in the N. C. C. Department under Section 21 of the Act. This release application (P. A. Case No. 21 of 87) was allowed on the basis of compromise on 30-3-1988. Consequently, the landlord took over possession of the northern half portion of the house and started living therein with his family. This fact was brought on record in the revision proceedings by the present petitioner as a subsequent development in order to make out that the landlord having already secured possession over identical portion on the northern side of the house no more needed the accommodation in question. Earlier the fact of premature retirement of landlord was brought forth by way of amendment in the revision application.

(3.) THE allottee occupant Smt. Sushila Dwivedi being aggrieved by the order of the revisional authority dated 19-12-1988 filed this writ petition. THE challenge is raised on the ground that the jurisdiction to allow or reject ' the release application solely vests with the District Magistrate and the matter of allotment of a vacant accommodation also falls within the jurisdiction and authority of the District Magistrate and, as such the order of the revisional court is without jurisdiction. It has been pleaded that the revisional Court had the only alternate to have remanded the matter to the District Magistrate instead of proceeding to decide it himself. Another submission raised is that the revisional Court, failed to consider the most material development to the effect that the landlord had already got possession of the northern half of the house and was living there with his family comfortably. THE writ petition contains an averment that the landlord converted the front verandah and the drawing room into two.. shops and has started using the same for running a business in the name and style of 'Rajasthan Silk Emporium.' Another fact alleged is that the landlord had made some further constructions on the back-yard of the house in the form of two rooms with independent amenities.