S. D. Aganvala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India arising out of proceedings under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
(2.) THE property in dispute is house No. 196, Bakshi Bazar, Allahabad. Mirazuddin, respondent no. 1, is the landlord of the said premises. One Abdul Ghafoor was a tenant of the said premises. He died on 10th August, 1966, and, thereafter, the tenancy rights vests in his sons and daughters. The landlord filed an application under section 21 of the Act on the ,, ground that the property is bona fide required by him for his use and occupation. In this application for release, he impleaded only Abdul Rauf and Farooq, both sons of Abdul Ghafoor, as respondents treating them to be the tenants of the premises after the death of Abdul Ghafoor. In the application under section 21 of the Act, the respondent had set up his personal need. Abdul Rauf, who is the petitioner no. 1 in the present petition, filed a written statement contesting the allegations made in the application under Section 21 of the Act against him. He further contested the allegations made in regard to the need of the landlord. In paragraph 7 of the written statement, it was specifically averred that after the death of Abdul Ghafoor, the property devolved on the two petitioners, Abdul Rashid, who is the youngest son of Abdul Ghafoor, and Smt. Aisha Begum and Smt. Rabia Begum, who are the daughters of Abdul Ghafoor. It was further stated that they are necessary parties to the application under section 21 of the Act and since in the application under section 21 of the Act, necessary parties have not been impleaded, the application is liable to be dismissed.
(3.) BEFORE the Prescribed Authority, the question whether Abdul Rashid was a necessary party or not was specifically raised. The Prescribed Authority considered this question and held that since after [the death of Abdul Ghafoor, the property also devolved upon Abdul Rashid, it was necessary that Abdul Rashid should have been made a party to the release application and, in his absence, the release application was not maintainable. The Prescribed Authority also considered the case on merits and came to the conclusion that the need of the landlord respondent was not genuine. The application was, ultimately, dismissed by the Prescribed Authority by an order dated 5th November, 1981. Aggrieved by the decision of the Prescribed Authority dated 5th November, 1981, Mirazuddin, the landlord, filed a Rent Control Appeal No. 80 of 1981 in the court of the District Judge, Allahabad. This appeal came up for hearing before the 4th Additional District Judge, Allahabad.. The 4th Additional District Judge, Allahabad, allowed the appeal by judgment dated 18th August, 1982, and allowed the release application. In this judgment, the first question, which was considered by the appellate court, was whether Abdul Rashid, Smt. Aisha Begum and Smt. Rabia Begum were also the co-tenants along with the petitioners. In the judgment, it has been stated that the petitioners did not press the co-tenancy in regard to Smt. Aisha Begum and Smt. Rabia Begum, but they only pressed in regard to the co-tenancy of Abdul Rashid. The appellate court relying on Section 3 (a) (1) of the Act wherein it has been laid down that on the tenant's death in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death are the heirs for the purpose of this Act, held that Abdul Rashid was not a co tenant alongwith the petitioners in the house in dispute. Aggrieved by the decision of the appellate court dated 18th August, 1982, the petitioners have challenged the same by means of the present petition.;