- (1.) SUDHIR Narain, J. The petitioner has sought a writ of certiorari quashing the order dated 15-2-1995 passed by the Prescribed Authority allowing the release ap plication filed by respondent No. 3 under Section 21 (1) (a) of U. P. Urban Build ings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and the order dated 1-12-1995 passed by respondent No. 1 affirming the said order in appeal. ; '
(2.) RESPONDENT No. 3 filed application for release of the shop in question on the allegation that Smt. Husna Khatoon, his mother, was its owner and landlord. In the year 1991 the said shop came in his share in a family settlement. He is a young man aged about 28 years, married and unemployed. He wants the shop in dispute for setting up himself in business. The petitioner is tenant of the disputed shop but he has put his lock since 1972 and is running his Gun shop in Mohalla Khoinipur, district Gorakhpur and does not require the shop in question. The application was contested by the petitioner. It was stated that the landlord of the shop in question was Mohd. Afaq, the grand-father of respon dent No. 3, who let out the shop in question to the father of the petitioner, namely, Late Mohd. Sultan and after the death of Mohd. Afaq, his three sons, namely, Shahir alam, Badar-Alam and Shabbir Alam and one daughter Zakia became co-landlords. Since Shahir Alam was the elder son of Mohd. Afaq, the rent was being paid to him on behalf of other landlords. After the death of a Shahir Alam, the rent was being paid to Smt. Husna Khatoon, widow of Shahir Alam. The theory of family settlement in false. It was further stated that his brothers and sister are also co-tenants of the shop is question and they have not been impleaded as a party. It was denied that the need of the landlord was bona fide. He was agent of L. I. C. and has also bakery shop at Maharajganj and carrying on business through his agent, Ghhotey Lal. In the disputed shop his two other brothers are carrying on business. The Prescribed Authority relied upon the family settlement and held that respondent No. 3 was the sole landlord. The petitioner was a joint tenant and he has repre sented the other co-tenants and if his other brothers are joint tenants, the petitioner has represented their interest. The shop in question is not being used since 1972 and respondent No. 3 has no accommodation to carry on business. The release application was allowed vide order dated 15-2-1995 and the order has been affirmed in appeal by the Appellate Authority. Learned counsel for the petitioner urged all the points which were taken by the petitioner before respondent Nos. 1 and 2. The firs contention is that the ap plication filed by respondent No. 3 was not maintainable as he was not the sole landlord and other co-landlords were not impleaded as party in the application.
(3.) THE version of respondent No. 3 is that Smt. Husna Khatoon, his mother, was landlady and in family settlement the said shop came into his share in the year 1991. It is not denied that Smt. Husna Khatoon was realising the rent exclusively from the petitioner. It is not averred that Smt. Husna Khatoon is still receiving the rent from the petitioner. On the other hand as affidavit purporting to have been signed by Smt. Husna Khatoon was filed by respondent No. 3 affirming that family settlement has taken place in which the disputed shop has been exclusively given to the respondent No. 3. Authenticity of this affidavit was challenged by the petitioner before the Prescribed Authority. THE Prescribed Authority summoned the register maintained by the Oath Commissioner and it was found that signature of Smt. Husna Khatoon did not appear in the register maintained by the Oath Commis sioner. This fact itself was not sufficient to establish that no affidavit was sworn by Smt. Husana Khatoon. It is an irregularity or lapse on the part of Oath Commis sioner. THE Oath Commissioner had verified the signature of Smt. Husna Khatoon on the affidavit which was filed before Prescribed Authority. The petitioner filed objection to the affidavit and in Para 10 of the objec tion it was stated that it has come to the knowledge of the petitioner that the affidavit does not bear signature of Smt. Husna Khatoon. The petitioner did not file any affidavit stating that the signature appearing on the affidavit purporting to be that of Smt. Husna Khatoon is, in fact, not of Smt. Husna Khatoon. The petitioner was admittedly receiving rent from Smt. Husna Khatoon. Respondent Nos. 1 and 2 rightly believed the affidavit of Smt. Husna Khatoon.;