N.D. Ojha, J. - (1.) A report was submitted by the Inspector of the Rent Control Department on 6th of September, 1973 to the Prescribed Authority under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, that the accommodation in question had been in the tenancy of one Girdhari Lal, that the said Girdhari Lal had shifted to his own house in Mohalla Iftikharabad and that the Petitioner was occupying the accommodation in question in an unauthorised manner. According to the Inspector, in the circumstances, the accommodation in question could be declared vacant. On the receipt of the report the persons concerned were given notice to file objections. It further appears that some applications were made for allotment of the said accommodation. Two such applications had been made by Respondents 4 and 5. The Petitioner filed an objection along with an affidavit. A copy of the objection and the affidavit has been attached as Annexure II to the writ petition. From a perusal of the affidavit it appears that the case of the Petitioner was that the accommodation in question had teen taken on rent by a joint Hindu family comprising of Girdhari Lal and the Petitioner and that the contract of tenancy on behalf of the joint Hindu family was made through Girdhari Lal who was its manager Karla. It was further stated in the affidavit that the family continued to reside in the said accommodation, that the family got constructed house No. 90/240, Iftikharabad, Kanpur, and certain members of the family shifted to the said newly constructed house in the year 1960 -61. The Petitioner, his wife and children, however, continued to occupy the accommodation. In the alternative the Petitioner's case was that in the beginning of the year 1972 by way of abundant caution a fresh contract of tenancy was made whereby the Petitioner was accepted as a co -tenant along with Girdhari Lal by the landlord. It is on those facts that the Petitioner asserted that the accommodation in question could not be deemed to be vacant as contemplated by Section 12 of the Act. The Prescribed Authority came to the conclusion that the Petitioner had failed to substantiate his case as set up in the affidavit stated above. It was held by the Prescribed Authority that the accommodation in question would be deemed to have been vacated by its tenant within the meaning of Section 12 of the Act. Subsequently an order allotting the accommodation in question was passed in favour of Respondent No. 4. An appeal was filed by the Petitioner and another appeal was filed by Respondent No. 5 against the order of allotment in favour of Respondent No. 4. The Additional District Judge dismissed the appeal filed by the Petitioner and allowed that of Respondent No. 5 with the result that the order of allotment passed in favour of Respondent No. 4 was set aside and the house was ordered to be allotted in favour of Respondent No. 5. Aggrieved the Petitioner has come to this Court under Article 226 of the Constitution.
(2.) IT was urged by counsel for the Petitioner that the accommodation in question had never fallen vacant nor could it be deemed to have fallen vacant within the meaning of Section 12 and accordingly the order of allotment passed in favour of Respondent No. 5 was without jurisdiction. In support of his submission it was urged that the accommodation in question had been in the tenancy of the joint Hindu family comprising of the Petitioner and Girdhari Lal and even though Girdhari Lal shifted to the newly constructed house the Petitioner in the capacity of a member of the joint Hindu family was entitled to occupy the accommodation in question and if he continued to occupy it as such no vacancy occurred. In the alternative it was urged that in view of the subsequent contract of tenancy entered into in the beginning of 1972 the Petitioner was a co -tenant along with Girdhari Lal and even on this ground the accommodation in question could not be declared to be vacant. Having heard counsel for the parties I am of opinion that there is no substance in this submission. The Prescribed Authority came to a categorical finding that the Petitioner had failed to establish that he was a member of the joint -Hindu family of Girdhari Lal or was occupying the accommodation in question in that capacity. From the order of the Additional District Judge it is clear that he was in agreement with this finding of the Prescribed Authority. In this view of the matter it could not be said that the Petitioner was entitled to occupy the accommodation in question as of right being a member of the joint Hindu family which was the tenant. At best what could be said in favour of the Petitioner was that he was occupying the accommodation in question along with Girdhari Lal as a member of his family (not as a member of a joint Hindu family which was the tenant). Even if the Petitioner continued to occupy the accommodation in question after Girdhari Lal shifted to his own house in the years 1960/61 it cannot be said that the petitioner became a tenant in his own right. In law it would be Girdhari Lal who would be the tenant.
(3.) IN so far as the plea raised by the Petitioner that there was a fresh contract of tenancy in the beginning of 1972, whereunder he became a co -tenant or a joint -tenant along with Girdhari Lal is concerned, suffice it to say that this plea has been specifically negatived by the Additional District Judge. He has recorded a categorical finding that the Petitioner neither paid rent in his own right before the coming into force of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, nor was rent payable by him.;