A. N. Varma, J. - (1.) THIS is a landlord's petition under Article 226 of the Constitution of India which is directed against the order passed by the courts below dismissing an application of the petitioner for the release of the accommodation in dispute.
(2.) THE material facts are these :- THE petitioner filed an application under Sec. 3 of the U. P. Temporary Control of Rent and Eviction Act for eviction of the respondent-tenant on the ground that in view of the increase in the size of the petitioner's family he needed additional accommodation. This application was contested by the tenants. It was rejected by the District Magistrate. THE matter was taken in revision by the petitioner right upto the State Government under Sec. 7-F of the aforesaid Act namely U. P. Act No. 3 of 1947. THE landlord then moved another application under Sec. 3 of the aforesaid Act on 26-9-1969 for granting permission to sue the tenants for their ejectment on the ground that he needed additional accommodation for his residence because of the insufficiency of the accommodation available with the landlord. This application was eventually rejected by the State Government under Sec. 7-F of the aforesaid Act on 1-9-1971. THEreafter the petitioner filed yet another application on 31-12-1971 firstly on the ground that he needed additional accommodation for his residence and secondly, on the ground that he needed the accommodation for setting his two sons in the business of general merchandise and stationery. While the aforesaid application dated 31-12-1971 was pending the U. P. Urban Buildings (Regulation of Letting Rent & Eviction) Act, 1972 came into force with effect from 15th July, 1972. Under Sec. 43 (2) (a) of this Act the application of the petitioner under sec. 3 of the U.P. Act No. Ill of 1947 stood transferred to the Prescribed Authority under U. P. Act No. XIII of 1972 and the same was, thereafter disposed of as an application in accordance with the provisions of U.P. Act No. XIII of 1972 as if it was an application under Sec. 21 of the Act. The above application was contested by the tenants on a variety of grounds. One of the grounds was that the application of the petitioner dated 31-12-1971 is barred by Rule 18 of the Rules framed under the U.P. Act. No. 13 of 1972, inasmuch as, the previous application of the petitioner under Sec. 3 of U.P. Act. No. Ill of 1947 which was based on the same ground as the present application dated 31-12-1971 had been finally rejected on merits. The Prescribed Authority dismissed the application of the petitioner on the ground that it is barred by rule 18. The petitioner appealed without success. The learned District Judge hearing the appeal has agreed with the Prescribed Authority that the application of the petitioner was clearly barred by rule 18. The learned District Judge, however, considered the matter on merits also and independently of the bar of rule 18 has come to the conclusion that the need of the petitioner cannot be said to be genuine in so far as the plea of the petitioner that the accommodation in dispute was needed for the purpose of residence of his family. The learned District Judge has also held that inasmuch as the accommodation in dispute was let out to the tenant for the purpose of residence, it could not be released for the purpose of business.
(3.) LEARNED counsel for the petitioner contented that the view of the courts below that the application of the petitioner was barred by rule 18 is manifestly erroneous in law. The argument was that the application dated 31-12-1971 could be treated as an application under Sec. 21 in view of the provisions of Sec. 42 (2) (a) of the U.P. Act No. XIII of 1972 only with effect from the date on which this Act came into force and that consequently the petitioner would be deemed to have made an application under Sec. 21 as a matter of legal fiction only on 14-7-1972 and not earlier. I do not agree with this submission. Sec. 42 (2) (a) clearly provides that an application or proceedings pending immediately before the commencement of U.P. Act No. XIII of 1972 under Sec. 3 of U.P. Act No. Ill of 1947 shall be deemed to be an application or proceedings under Sec. 21 of the former Act. That being so, I find no warrant for taking the view that the application under Sec. 3 of U.P. Act No. Ill of 1947 shall be deemed to be an application under sec. 21 only with effect from 15-7-1972, the date on which the U.P. Act No. XIII of 1972 came into force. There is, therefore, no substance in the first argument raised by the learned counsel for the petitioner. Moreover, even if it be assumed that rule 18 did not bar the application, on the finding of the learned District Judge that the need of the petitioner was not bonafide and genuine and that the accommodation already in his possession was sufficient and adequate for the residence of his family, the application of the petitioner was liable to be dismissed in any view of the matter.;