Decided on March 31,1980


Referred Judgements :-



- (1.)This is a tenant's petition invoking the jurisdiction of this Court under Article 226 of the Constitution. It is prayed that this Court may issue a suitable writ, order or direction quashing the order of the Prescribed Authority dated 6th of October 1976. Certain other ancillary reliefs have also been claimed in the petition.
(2.)Respondent No. 2 filed an application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as 'the Act', before the Prescribed Authority for the eviction of the Petitioner from the premises in dispute on the ground of his personal need. In response to the notice issued to him, the Petitioner appeared and contested the application by filing a written statement. The case was dismissed in default of Respondent No. 2 on March 5, 1975. He made an application for the restoration of the case and the Prescribed Authority fixed 14th April, 1975 for the disposal of the application. The Petitioner has stated that notice of restoration application was not served on him and the order dated 5th of March 1975 was set aside by the Prescribed Authority behind the back of the Petitioner on April 14, 1975, it is further alleged that the case was then fixed for hearing on 23, 1975 and the Petitioner had no knowledge of the said date in consequence the Prescribed Authority passed an ex part order of eviction toner. In pursuance of the said order, the Petitioner was forcibly evicted from the premises in dispute on June 18, 1975. The landlord Respondent no acting post-haste demolished the roof of the premises which is a shop. The Petitioner moved an application for setting aside the ex parte order dated 23rd April, 1975. The said application was opposed by the Respondent No. 2 on the ground that the premises in dispute had ceased to be an accommodation The Prescribed Authority by its order dated August 4, 1975 overruled the objection of Respondent No. 2 and allowed the restoration application field by the Petitioner Aggrieved by the said order of the Prescribed Authority Respondent No. 2 preferred Civil Misc. Writ Petitioner No. 8668 of 1978 which was dismissed on August 14, 1975. Thereafter the Petitioner moved an application purporting to be under Section 144/151 Code of Civil Procedure for restitution. The said application was opposed by Respondent No. 2 and he also made an application before the Prescribed Authority stating that since the premises in dispute had become roofless, the provisions of the Act were no longer applicable to it and as such he did not intend to proceed with his application under Section 21. However, Respondent No. 2 shifted his stand and he moved another application on October 5, 1976 stating that he would not press his application under Section 21 of the Act only if the Prescribed Authority accepted his connection that the provisions of the Act were not applicable to the premises in dispute After hearing the parties, the Prescribed Authority took the view that since the proof of the premises had admittedly been dismantled, it had ceased to be a building as defined in the Act and that it had no jurisdiction to order restitution in proceedings under Section 21 of the Act. In this view of matter the Prescribed Authority dismissed the application of Respondent No. 2 as not pressed and also rejected the restitution application filed by the Petitioner. This order was passed by the Prescribed Authority one-10-1976 and it is the validity of this order which has been strongly assailed before this court.
(3.)This writ Petitioner has been opposed by the Respondent No. 2 who has filed a counter-affidavit. The facts stated above have not been disputed in the counter-affidavit filed by him except in one respect which shall be presently noted. In paragraph 6 of the coulter-affidavit, it is stated that initially Mach 11, 1975 fixed for the hearing of the case and the notice of the said date was served on the Petitioner and he had sufficient knowledge of the dates fixed in the cases thereafter. In the rejoinder-affidavit filed by the Petitioner, the stand taken in the writ Petitioner has been reiterated. It is significant that the stand taken by the Petitioner on this point finds support from the order of the Prescribed Authority on August 4, 1975. In the said order it has been specifically observed that from the perusal of the notice it was evident that service of notice has not been properly affected on the Petitioner. It would, therefore, be reasonable to conclude that the Petitioner had no knowledge about the proceedings in the case after it was dismissed on March 5, 1975, and until the order of eviction passed against the Petitioner was given effect to on June.

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