M.P. Saxena, J. - (1.) This is a petition under Article 226 of the Constitution of India arising out of proceedings under section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the Act).
(2.) Briefly stated the facts culminating in this writ petition are that Flat No. 3/1 forms part of B B.C. Building Kulri, Munsoorie. One Miss C. Ram was admittedly a tenant of this flat which is a residential quarter. She vacated it but placed Shri B. Prasad, the opposite party no. 1, in possession of it. The petitioner moved an application under section 16 of the Act for allotment of this flat in his favour on the ground that the opposite party no. 1 was in unauthorised possession of the same and it should be deemed to have fallen vacant. On his application the Rent Control and Eviction Inspector was directed to inspect the building and submit his report. On 29.7.1975 he reported that Miss. C. Ram was a tenant of this flat. She vacated it but placed Shri A. Prasad in unauthorised possession of the same. He found Sri A. Prasad, his father, and children residing in it. In his opinion the house should be deemed to have fallen vacant and vacancy be notified. This report is Annexure II. The building was accordingly declared vacant and applications for its allotment were invited. Three persons applied for its allotment. They were Sushil Kumar Agarwal, the petitioner, A. Prasad the opposite party no. 1 and one Shri J.P. Singhal. Since Sri J P. Singhal did not take any interest in the matter he is not in the picture at all. The petitioner's application for allotment was prior in point of time. He prayed for allotment of this flat on this ground as well as on the ground that the accommodation already, in his possession is much too small to meet the requirements of a growing family.
(3.) The Rent Control and Eviction Officer came to the conclusion that Sri A. Prasad being in unauthorised occupation of this building was not entitled to have it allotted in his name. He also held that the need of Sushil Kumar was greater than that of Shri A. Prasad, who was already in possession he allotted it in favour of Sri Sushil Kumar, the petitioner, and observed that if Sri A. Prasad had really any need of any accommodation he could apply for allotment of the flat which Sri Sushil Kumar was prepared to vacate. Sri A. Prasad, opposite party no. 1 filed an appeal under section 18 of the Act as it stood at that time. The learned Additional District Judge came in the conclusion that the need of Sri A. Prasad was more pressing than the need of Sushil Kumar. Secondly, Sri A. Prasad being a public servant and his application having been recommended by the Medical officer of Health, City Board, Mussoorie his case fell in category I of Rule 1 l framed under the Act and he was entitled to priority over Sri Sushil Kumar. He further observed that Sri A. Prasad had no other accommodation and he would be thrown on the street if he was required to vacate this flat. Therefore, he set a side the order passed by the Rent Control and Eviction officer and allotted this building to Sri A. Prasad, opposite party no. 1. This order was passed on 2.4. 1976 and the present writ petition has been filed to quash it -;