- (1.) By means of this writ petition the petitioner has prayed for quashing the order dated 12th July, 1990 passed by the VI Additional District Judge, Lucknow. The facts as far as they are relevant for deciding the controversy in dispute are that the petitioner is the owner of house No. 545/176, Sector-A, Mahanagar, Lucknow. This house has two portions; one is northern portion and the other is southern portion. The dispute related to the southern portion which was in occupation of one S.K. Misra. The petitioner was employed in the Indian Air Force and posted outside Lucknow and he retired on 31st July, 1987. At that time he was holding the rank of Wing Commander. The northern portion of the house was allotted to 5, U.P.N.C.C. Air Squadron. Sri S.K. Misra constructed his own house and shifted in his own house and a deemed vacancy arose. Thereupon the petitioner moved an application for release under Section 21(1)(b) of U.P. Act 13 of 1972 on 6.11.1981. During the pendency of this application the said Sri S.K. Misra vacated the premises in February, 1983. The authorities below rejected the application for release on 12th October, 1983 and the house was allotted to one Srimati Sushila Devi, respondent No. 3 who is now in possession of the southern portion of the house. She had contested the application for release. A revision was filed against the said order which was allowed on 19.12.1988 and the southern half portion was released in favour of the petitioner. Srimati Sushila Devi filed Writ Petition No. 9876 of 1988 before the High Court which was allowed on 6th November, 1989 and the case was remanded for deciding afresh. Before his retirement the petitioner applied for release of the southern portion of the house on 6th November 1981. The petitioner, before his retirement, had moved a separate application for release of the northern portion of the house which was in the tenancy of 5 U.P.N.C.C. Squadron This application for release was allowed on the basis of the compromise dated 31st March, 1988 and the petitioner took possession of the northern portion of the house. It is alleged that the family of the petitioner consists of himself, his wife and three children who are aged about 21, 19 and 17 years respectively. Against the order passed by this Court the petitioner filed a Special Leave Petition before the Supreme Court which was dismissed on 30th January, 1990 and all the matters were left open by the Court. After the remand of the case before the Additional District Magistrate the petitioner filed some additional evidence regarding the extent of the accommodation in possession of, the petitioner. That revision was, after hearing, dismissed on 12th July, 1990. While deciding the revision the respondent No. 3, the Additional District Judge, VI, did not issue any commission or made any local inspection of the premises in dispute. He also did not take into consideration, during the course of hearing, in his judgment, the order passed by the Hon'ble Supreme Court. It is further alleged that the Additional District Judge, VI, did not consider the need of petitioner and his family and ignored the same from consideration. It is further alleged that the provisions of explanation 3 of Section 21(1) of U.P. Act 13 of 1972 were completely misread by the Additional Distt. Judge who wrongly held that these provisions are not applicable to the petitioner. The Additional District Judge also ignored from consideration the fact that the garage was converted into a bed room with attached bath room which was a temporary structure and was not meant to permanently satisfy the need of the petitioner and his family. The house was constructed by the mother of the petitioner. The petitioner, at the time of his retirement, was holding the rank of Wing Commander and as such he was entitled to 2169 sq. ft. accommodation. A notice had already been issued for demolition of the temporary construction made by the petitioner by the Lucknow Development Authority.
(2.) Respondent No. 3, Srimati Sushila Devi, in whose favour the allotment has been made, has contested this petition. Srimati Sushila Devi, had moved an application before this Court for her impleadment as respondent but this application was dismissed by this Court on 23rd August, 1991. Against this order Srimati Sushila Devi, respondent No. 3, went to the Hon'ble Supreme Court and the Hon'ble Supreme court allowed the Special Leave Petition filed by her and allowed the application for impleadment moved by her before this Court in the present petition. The order of the Hon'ble Supreme Court is dated 3rd March, 1992. In this way the respondent No. 3 has been allowed to contest this petition and has been made a party. Thereafter the respondent No. 3 filed a short counter affidavit and a regular counter affidavit. Both these counter affidavits are taken together and the necessary averments mentioned therein are given hereunder.
(3.) According to opposite party No. 3, house No. 545/176 built over plot No. 5-B Sector A, Mahanagar, Lucknow has two independent portions. The northern portion has more accommodation than the southern portion. The northern portion was in the tenancy of the office of N.C.C. Subsequently the lease of the northern portion was renewed on 1st April, 1983 during the pendency of the proceedings before the Prescribed Authority for release of the southern portion under Section 16(1)(b) of Act 13 of 1972. This release application was moved on 6th November, 1981. Thereafter in the release application filed against the N.C.C. Office that portion was released by the Prescribed Authority on the basis of a compromise vide order dated 30th March, 1988. The family of the petitioner starting living in that portion and the need of the petitioner stood fully satisfied. After the declaration of the vacancy in the southern portion of the house the respondent No. 3 applied for allotment of the said portion which was allotted to her after the rejection of the release application. It is further alleged that on one hand the petitioner was pressing his release application under Section 16(1)(b) of U.P. Act 13 of 1972 on the ground of benefit of retirement for residential purposes while on the other hand he renewed the lease in favour of N.C.C. Office. This material fact was suppressed by the petitioner from the Rent Control Authority and further that the petitioner was not posted at Lucknow. The possession of the southern portion of the house was handed over to respondent No. 3 on 24.10.1983 after it was allotted to her on 12th October, 1983. It is further alleged that after the allotment of the premises the respondent No. 3 Form-C was issued by the Additional District Magistrate to Dr. Misra on 19.10.1983 in compliance of which the possession of the southern portion was handed over to the respondent No. 3 on 24th October, 1983. The petitioner had started using part of the northern portion of the house which was in his possession for business purposes i.e. Kanjivaram Silk and Handicrafts, Ice Cream shop and poultry farm.;