N.L.Ganguly - (1.) THIS writ petition under Article 226 of the Constitution of India is directed against judgment and order dated 6-10-1985. passed by the Rent Control and Eviction 'Officer, Allahabad (respondent no. 1) refusing the petitioner "leave to contest application in proceedings under section 24-C of the U. P. Urban Buildings (Regulations of Letting Rent and Eviction) Act, 1972" (hereinafter called the Act). The brief facts of the case are that the respondent no. 2, Dr. Aran Kumar Kapoor moved an application under section 24-B and 24-C of the Act in August, 1989, against the petitioner for his eviction from the premises No 18, Hastings Road, Allahabad, The petitioner's father was the tenant of the house in dispute since 1953 and after his death the petitioner succeeded to the tenancy of the said house The rate of rent on the date of filing of the application was Rs. 78/- p.m The respondent no 2 claimed that there had been a partition amongst the members of the family, between father and his two sons, in 1989. The partition was effected without any partition deed or any document. The premises in question was recorded in the name of Sri M. P. Kapoor, father of respondent no 2, since the time of inception of the tenancy between the petitioner's father and father of respondent no 2.
(2.) IT was stated in the application for eviction of the petitioner under sections 24-B and 24-C of the Act that the house in question which was originally numbered as House No. 18, was re-numbered after the partition as House Nos. 18 and 18/1, Hastings Road,, Allahabad Respondent no 2, Dr. Arun Kumar Kapoor, contesting opposite party, claimed to be owner after partition of the re-numbered portion of the disputed house numbered as House No 18 and the other portion of tie said house No. 18/1 was said to have been given to Sri K. C. Kapoor. The father of the contesting respondent, namely, Sri M P. Kapoor, had directed the petitioner to pay rent in equal shares to respondent no. 2. Dr. Arum Kapoor and Sri K. C. Kapoor and the petitioner accordingly had been [paying half of the rent to respondent no. 2 and half to Sri K. C. Kapoor. The contesting opposite party had pleaded that he was employed as a part time Medical Officer in the Nagarmahapalika, Allahabad and in that capacity was occupying a residential accommodation in Katra Nagar Palika The Nagarmahapalika authorities directed the contesting opposite party to vacate the premises in his possession by order dated 3-8-1989 on the ground that he had his own residential house no. 18, Hastings Road, Allahabad. The petitioner after receiving notice from the Rent Control and Eviction Officer, under section 24-C. submitted an affidavit (annexure-4 to the petition stating the grounds on which he sought to contest the application for eviction, in which he stated that House No. 12-A original number, later numbered as 18. Hastings Road, Allahabad, belongs to Sri M. P. Kapoor solely and as personal property which he had acquired through will from his mother, and the erstwhile owner. It was also stated that Sri M. P. Kapoor, father of respondent himself got a notice published in the daily Newspaper 'Northern India Patrika' dated 17th July, 1985 that it was his sole property and neither any of his sons or daughter had any concern or share therein. It was also stated in the affidavit of the respondent No 2 that there was a family partition of the ancestral joint property in which the building in question has come to his share and the contesting opposite party shall be recovering half of the monthly rent. The premises in question is one and the same but half of the amount of rent is paid to respondent no. 2 and remaining half to Sri Kishan Chand Kapoor on the bais of representation of respondent no. 2. The petitioner pleaded specifically that the building in question i. e. 12-A, Hastings Road, Allahabad, is the sole and exclusive property of Sri M. P. Kapoor It was stated that there was no partition by mates and bounds nor any document creating right and title in favour of the respondent and Sri K. C. Kapoor. It was also stated that the building in question in occupation of the petitioner is one and the same which has been allotted two numbers, House No. 18 and House No, 18/1, Hastings Road, Allahabad. There is neither any demarcation or partition on the spot. The tenancy of the petitioner could not be split at the whims of the contesting respondent. The application for eviction of the petitioner under section 24-B and 24-C of the Act is also not maintainable as the tenancy could not be split and Sri K. C. Kapoor who is said to have been allotted, half share in the: property neither joined the petition under section 24-B and 24-C of the Act nor ever gave any notice to the petitioner nor any instructions to the contesting respondent to seek eviction of the petitioner. The petitioner pleaded specifically that the contesting respondents has a residential accommodation at House No. 1198, Malviya Nagar, Kalyani Devi, Allahabad, which is a residential house with all necessary amenities. The said accommodation is under the lock and key land in occupation of the contesting respondent. All belongings kept therein are of the contesting respondent. The pleading of the petitioner aforesaid goes to show that the application under section 24-B and 24-C of the Act is not maintainable in view of the available accommodation. lt was pleaded in the affidavit that the contesting respondent is a part-time Medical Officer at the Nagarmahapalika, Allahabad and his wife Dr. (Smt.) Manju Tandon is also posted as Medical Officer, Dufferin Hospital. Allahabad. The contesting respondent is a part-time Medical Officer and is not a government servant, nor he was asked to vacate any public premises
(3.) BESIDES the aforementioned pleadings in the affidavit filed along with application for leave to contest the proceedings, a number of grounds have also been raised in the present writ petition challenging the validity of the provisions of section 24-A to C of the Act. The petitioner had moved an application (annexure-5 to the writ petition) before the respondent no. 1 raising certain preliminary objections and requested the court below to decide the same as preliminary issues.;