Kamleshwar Nath, J. - (1.) THIS petition, under Article 226 of the Constitution of India, is directed against an order dated 21-7-1986 passed by the First Addl. Civil Judge, Lucknow, and contained in Annexure-5 to the writ petition, setting aside an earlier order dated 27-2-1985 of the Prescribed Authority under the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, contained in Annexure-4 to the petition, whereby the application under section 21 of the Act by opposite party No. 1, was dismissed.
(2.) HOUSE No. 510/133 New-Hyderabad, Lucknow, was held by petitioner R. K. Mathur as a tenant for a very long time, originally let out by Radhey Mohan Mathur the brother of opposite party No. 1 Rajendra Mohan Mathur. In course of time, opposite party No. 1 claimed to be the owner-landlord and filed an application under section 21 (I-A) of the Act for release of the house in his favour on the ground that he had to vacate a public building which he was occupying for residential purposes because he was to retire from service on 31-7-1983. Annexure A-1 is the copy of the application. In para 1 of the application he described that he is the owner-landlord of the house of which the present petitioner is the tenant, that he was occupying Public Premises no. DG 947, Sarojini Nagar, New Delhi, as Section Officer in the Ministry of Defence, Union of India, New Delhi, but since he retired from that service on 31-7-1983, he was liable to vacate the premises. In para 5 he said that he had no other accommodation except the one in dispute, and, therefore, he was entitled to have it vacated from the petitioner. The application was contested by the petitioner by a written statement, whose copy is Annexure A-2. In this written statement he admitted Para 1 of the application Annexure A-1. In para 5 of the written statement he said that the applicant had at his disposal another accommodation in Haryana Estate opposite Mandi House, Sikandarabad Road, New Delhi, which was allotted in the name of the wife of Rajendra Mohan Mathur opposite party No. 1. He added that the application under section 21 (1-A) of the Act was not maintainable because opposite party No. 1 had not served six months notice upon him before filing it, and after purchasing the house. The petitioner explained that originally he was the tenant of Radhey Mohan Mathur from whom the house was purchased by opposite party No. 1 in or about the year 1980, and that Radhey Mohan Mathur for himself and for his two brothers, including opposite party No. 1 had applied to the Competent Authority (under Urban Land Ceiling Act) for sale of the house of the petitioner's wife in 1979. The negotiations for the sale, however, fell subsequently. Opposite party No. 1 filed a replication affidavit Annexure-A4, in which he stated that he had not purchased the house of Radhey Mohan Mathur, but had received it by family settlement. He said that Radhey Mohan Mathur, being the eldest amongst the brothers, had been realising rent for the accommodation on behalf of the family members, but since after the family settlement in 1975 the premises fell exclusively into his (opposite party No. 1) share. He explained that his wife was serving the Haryana Estate and was residing in the accommodation of the State at New Delhi, but her post was transferable and that she had already made up her mind to settle down at Lucknow on his retirement, and that he was under no obligation to stay at New Delhi after his own retirement simply because his wife was employed in New Delhi.
(3.) THE learned Prescribed Authority in bis judgment dated 27-2-1985, Copy Annexure-4, held that it was not possible to accept the contention of opposite party No. 1 that he had obtained the house by means of a family settlement because there was no document to establish it. He observed that the family settlement, if any, required registration under the Indian Registration Act, and that it was not possible to accept the oral testimony of opposite party No. 1 in this regard. He also found that there was no document of proof of purchase of the house by opposite party No. 1, and that in view of the tenancy by allotment describing Radhey Mohan Mathur to be the landlord, the application under section 21 (1-A) of the Act was liable to be dismissed. Alternatively, he held that even if opposite party no. 1 got the house by family settlement, he was bound to give notice to the petitioner under section 21 of the Act. He lastly observed that it was futile for opposite party No. 1 to contend that while his wife would remain in employment at Delhi, he would live all alone in Lucknow and, therefore, so long as his wife has residential accommodation in Delhi by virtue of her employment, opposite party No. 1 has no necessity for the disputed house. On this ground the learned Prescribed Authority dismissed the application. The learned appellate court did not agree with the findings of the Prescribed Authority. He noticed that the petitioner had admitted in his own written statement that the opposite party No. 1 was his landlord, and that the money order of rent was received by opposite party No. 1 at Delhi. Proceeding on that basis, he observed that the points, which arose for consideration in the case, were whether the present opposite party No. 1 was in occupation of the public building for residential purpose, and whether he had to vacate the same on account of the cessation of his employment. He remarked that if those points were answered in affirmative, the application of opposite party No. 1, the landlord, must be allowed.;