Prakash Krishna, J. - (1.) PREMISES No.113/119, Swaroop Nagar, Kanpur Nagar is the subject matter of dispute which is presently in occupation of the petitioner being the tenant. The contesting respondent no.1 is its landlord. He was serving in the Steel Plant at Durgapur (State of West Bengal) on the post of senior manager and was provided with Category-VI Type House No.1/10, Vivekanand Road, Durgapur. He was due to retire on 31st of May, 2000 on attaining the age of superannuation. Sensing his retirement, he filed an application under sections 21(1)(a) and 21(1-A) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)Act No.13 of 1972 against the petitioner for release of the accommodation in question on the pleas inter alia that he requires the said accommodation for use of his family on the ground that he is to retire in near future and will settle at Kanpur in his own house and that presently he is in occupation of a public building in connection with his employment in Durgapur Steel Plant. Notice of the application was issued to the petitioner by the Prescribed Authority but no objection or written statement was filed and the matter proceeded exparte. The Prescribed Authority by the order dated 3.7.1998 dismissed the said release application on the ground that presently the landlord and his family are not residing at Kanpur and as such, there is no immediate need for getting the tenanted accommodation released. The release application, according to the prescribed authority, was filed on the ground of expected need, there being not immediate need.
(2.) THE above order was challenged by way of appeal which was marked as rent appeal No.124 of 1998. THE court below by the impugned order dated 18th of April, 2003 has allowed the appeal and set aside the order passed by the Prescribed Authority and released the disputed accommodation in favour of the contesting respondent no.2. During the pendency of the appeal, the respondent landlord moved an application for amendment and brought on record that he has taken voluntary retirement and he has retired w.e.f. 31st August, 1998. The said amendment application was allowed by the order dated 12th of October, 1998 and the notices in the appeal were issued by the appellate court to the petitioner thereafter. In response to the notice, the petitioner filed objection as well as the application for recall of the order dated 12th December, 1998 whereby the amendment application was allowed exparte. The appellate court vide its order dated 17th of September, 2002 heard the counsel for the parties and allowed the amendment application again. The landlord also filed documents supporting the plea of voluntary retirement, to which time was granted to the petitioner tenant to file evidence in rebuttal vide order dated 31st of January, 2003. During the pendency of the appeal, the petitioner also prayed that the matter be restored back to the Prescribed Authority after allowing the appeal. The said application was rejected by the court below on the finding that it is not required to remand the case to Prescribed Authority for recording fresh finding. The appellate court has jurisdiction to record a fresh finding itself if so required in view of the law laid down by this Court in Durga Prasad Jain and another: 1996 ARC (2) 592 as also in Sukh Lal Vs. IXth Addl. District Judge, Kanpur and others: 1983 ARC 198. Thereafter, the appeal was heard. The petitioner filed written arguments and the impugned order allowing the appeal was passed.
(3.) SHRI M.B. Saxena, learned counsel appearing on behalf of the petitioner, submits that no notice was served on the petitioner by the Prescribed Authority and the release application was decided ex-parte though in his favour. He further submits that during the pendency of the appeal itself, the landlord himself filed an application that the matter be remanded back to the Prescribed Authority for fresh consideration after giving an opportunity to the parties to lead evidence in support of their respective cases and the said application remained pending. In any case, no opportunity for hearing was afforded to the petitioner by the trial court and as such the impugned order is liable to be quashed. SHRI Ravi Kant, the learned senior counsel for the contesting respondent, on the other hand, submits that the release application was filed under section 21(1-A) of the Act wherein only two requirements are to be established for getting the tenanted accommodation released. Firstly, that the landlord of the building was in occupation of public building for residential purposes. Secondly, that he had to vacate on account of cessation of his employment. There being no dispute that the landlord was in occupation of public buildings for residential purposes and that he has vacated it due to his retirement, no interfere in the present writ petition is called for. The first and foremost point urged by the learned counsel for the petitioner is that the matter should be remanded to the Prescribed Authority with the direction to decide the case afresh after giving an opportunity to the parties to lead evidence on merit. It was urged that, admittedly, the petitioner tenant was not served personally. The release application was decided exparte. The petitioner tenant came to know about the proceedings when she was served with notice by the appellate court. Although a written statement was filed before the appellate court but no proper opportunity to lead the evidence was granted, therefore, this Court should restore back the matter to the Prescribed Authority. It was also argued that during the pendency of the appeal, before issuing any notice on the appeal, the release application was got amended by the respondent landlord on the plea that he has now retired as has obtained voluntary retirement.;