AFROZ AHMAD AND ANOTHER Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition has been filed praying for a writ in the nature of certiorari for quashing the order dated 01.08.1997 passed by the Prescribed Authority/Special Chief Judicial Magistrate, Allahabad in P.A. Case No. 67 of 1986 (Mirza Mohammad Mehdi and others v. Mohammad Shafiq and others) and also praying for quashing of the order dated 30.11.2017 passed by the learned Additional District Judge, Court No. 13, Allahabad in Rent Appeal No. 109 of 1997 (Afroz Ahmad and another v. Mirza Mohammad Mehdi and others).

(2.) Learned counsel for the petitioners has submitted that respondent No. 3, (now deceased) had filed an application for release of the premises in question, which is a residential house, under section 21(1) (a) of the U.P. Act No. 13 of 1972 before the Prescribed Authority registered as P.A. Case No. 67 of 1986. He has read out the contents of the plaint to show that the landlord had pleaded that originally the tenant of the property in question was one Mohammad Shafiq and Mohammad Shafiq had built his house in Guru Teg Bahadur Nagar, Awas Yojna, Allahabad and shifted most of his domestic belongings to the said house and was not residing ordinarily in the disputed premises, but had given its keys to his relatives i.e. his cousins Afroz Ahmad and Firoz Ahmad, both sons of Zubair Ahmad, and they had no authority to live in the house in question, and the house in question was required to meet out the growing needs of the large family of the three brothers Mirza Mohammad Mehdi, Mirza Haidar Mehdi and Mirza Qamar Mehdi, all now deceased, and arrayed through their legal heirs as respondents in this writ petition.

(3.) Learned counsel for the petitioner submits that from admission in the plaint itself, it appears that the tenants-petitioners were sub-let the property in question and in fact were unauthorized occupants, and therefore, application for release under section 21(1) (a) ought not to have been entertained at all and ought not to be maintainable before the Prescribed Authority. At best an application under sections 12 or section 15 or section 16 of the Act could have been moved by the landlords for eviction of unauthorised occupants and declaration of vacancy and release in favour of landlords, which was not done. This ground was raised regarding non-maintainability of the application under section 21(1) (a) in the written statement filed by the respondents in paragraph 18 specifically. In the grounds taken in the memo of appeal also. Ground No. 9 related to section 12 and the maintainability of application thereunder and non-maintainability of P.A. Case before the Prescribed Authority. This ground was not dealt with at all either by the Prescribed Authority or by the Appellate Authority while deciding the release application.