R.R.K.Trivedi - (1.) IN this petition counter and rejoinder affidavits have been exchanged and learned counsel for parties have agreed that the petition may be disposed of finally at the stage.
(2.) THE facts giving rise to this petition are that respondent no. 2 filed an application on 2-1-1990 before the Prescribed Authority under U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) for eviction of the petitioner from the accommodation in dispute which consists of two rooms of House No. 285 Bada Kajipada, Sadar Bazar, district Mathuna. A copy of the application has been filed as Annexure I to the writ petition. A perusal of the application will show that it was filed under section 2-A (5) read with section 21 (I) (a) of the Act. Respondent no. 2 stated that petitioner was allowed to occupy the two rooms in the ground floor for a short term of three months for purely residential purpose in the year 1980 by the father of Mahabir Prasad who expired on 18-4-1981 and after father's death he became the Karta of the joint Hindu family being the only son and thus became landlord and owner of the property. Petitioner was requested to vacate the premises several times but he refused on one ground or other. He is occupying the building illegally without any right. It was stated specifically that no rent was accepted at any point of time. It was further stated that his family consists of 12 members and there is acute paucity of accommodation and the need of the landlord for the additional accommodation is genuine and bona fide and in case the petitioner is not found to be a licensee and cannot be evicted under section 2-A (5) of the Act, the application may be allowed in the alternative under section 21 (1) (a) of the Act. A notice was given on 29-1-1987 to vacate the accommodation in dispute. After receiving the notice petitioner started asserting himself to be tenant of the disputed premises although there was no relationship of landlord and tenant. The aforesaid application was resisted by petitioner on number of grounds by filing an objection. A copy of the affidavit of petitioner has been filed as Annexure II to the writ petition. Petitioner asserted that it is not correct to say that he was admitted as licensee for a period of three months only. He claimed himself to be tenant occupying the accommodation in dispute since 1978. It was also contended that he cannot be evicted under provisions of section 2-A (5) of the Art. Bona fide need set up by respondent no. 2 was also denied. Prescribed authority after giving opportunity to both the parties to adduce evidence and after hearing them, by order dated 11-1-1991 allowed the application under section 2-A (5). It recorded a finding that petitioner's occupation is as licensee and he he is liable to be evicted under section 2-A (5). Finding has also been recorded that petitioner is not tenant. It is this order which has been questioned in the present proceedings.
(3.) I have heard learned counsel for petitioner and learned counsel for respondent and I have also perused the order and other materials on record. Learned counsel for petitioner pressed the petition only on a legal ground that the petition filed by respondent no. 2 landlord for eviction of petitioner was not legally maintainable as section 2-A (5) of the Act was not applicable. The contention is that on the facts alleged in the application it is clear that the licence was not created under the provisions of section 2-A of the Act, hence order of eviction could not be passed under section 2-A (5) of the Act. Learned counsel for respondent no. 2 submitted that as possession of petitioner is illegal and without authority of law. he is not entitled for any relief under Article 226 of the Constitution of India. Learned counsel has placed reliance in case; Smt. Bharat Devi Gupta v. Prescribed Authority, Allahabad, 1984 (2) ARC 258.;