- (1.) N. K. Mehrotra, J. This is a petition under Article 226 of Constitution of India for issuing a writ of certiorari quashing the judgment dated 5-10-2002 (Annexure No. 11), passed by the IIIrd Additional District Judge, Lucknow, the opposite party No. 1 and judgment dated 10-8-2000 (Annexure No. 5), passed by the Prescribed Authority/judge, Small Causes Court, Lucknow.
(2.) HEARD the learned Counsel for the parties. The opposite party No. 3 Nilendra Kumar Chaturvedi filed an application under Section 21 (1) (a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter to be referred as "act") before the Prescribed Authority, Lucknow for release of the half of the portion of House No. 212 situated at Mahatma Gandhi Marg, Lucknow, occupied by the petitioner as tenant on behalf of the opposite party No. 3. The release petition was filed on the ground that the opposite party No. 3 is the landlord of House No. 212, Mahatma Gandhi Marg, Lucknow and the petitioner is the tenant in half of the portion of the house. The opposite party No. 3 is serving soldier as defined under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) and the accommodation in question was let up to the petitioner while the opposite party No. 3 was serving as such. It was alleged that the opposite party No. 3 is an Indian Soldier and is subject to Army Act, 1950. He holds the rank of Colonel and at the time moving release petition was posted as Deputy Judge Advocate General at Jodhpur and was deployed in active service. The family of the landlord consists of his wife Smt. Rekha Chaturvedi and two children namely; a daughter aged about 14 years and a son aged about 9 years. It was alleged that Smt. Rekha Chaturvedi is suffering from vitreous ratina detachment of right eye and has completely lost her vision. She has been advised to undergo bi-monthly check-up by a specialist and carry out a special investigation to prevent any other complication in the left eye. She was advised to stay near a big hospital having specialist eye surgeon. The disputed building lies at a distance of about 500 Mts. of the Command Hospital, which is required for her medical care and attention. The landlord decided that his wife will stay in the disputed accommodation with children and she will be cared for and looked after by his father who is a retired Chief-Engineer of the Irrigation Department. The petitioner-tenant contested the application on the ground that the tenancy was created by private negotiation against the provisions of the Act. The Landlord has another house situate at Lokmanganj, Lucknow. The need of the landlord is not bona fide. He further pleaded that he is also a retired Army Officer who has taken premature retirement as Lieutenant Colonel from the Army because of the serious medical problem of his wife Smt. Atul Jairath and she requires constant monitoring and regular treatment for hypo-thryoidisim diabetes, high-blood pressure and Neuroptha of both feet. She is under treatment in the Command Hospital, Lucknow which is situated near the house.
(3.) BOTH the Courts below have accorded the benefit of Explanation (iii) to Section 21 (1) of the Act which is as follows :- "explanation (iii ).- Where the landlord of any building is - (1) a serving or retired Indian Soldier as defined in Indian Soldiers (Litigation) Act, 1925 and such building was let out at any time before his retirement, or (ii) a widow of such a soldier and such building was let out at any time, before the retirement or death of her husband, whichever, occurred earlier and such landlord needs such building for occupation by himself or the members of his family for residential purpose, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purpose of Clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building only. " It is not denied that the landlord opposite party is serving as Indian Soldier as required for the purpose of this explanation. It is also not denied that he is availing this provision in respect of only this building.;