B L. Loomba, J. - (1.) -I have heard learned counsel for the parties.
(2.) THE controversy relates to first floor accommodation at 41-B, Mahatma Gandhi Road, Hazratganj, Lucknow. Dr. M. Nisar Beg was the owner-landlord of this building. THE accommodation in question at the first floor consisting of two rooms and some open space was earlier occupied by one Bishambhar Lal who is said to have vacated the same. Dr. M. Nisar Beg applied for its release under section 16 (1) (b) of (J. P. Act XIII of 172 on the ground that this accommodation was needed by him for starting his medical professional practice. His application was allowed by order dated 20-9-1982 (Annexure-1). As is mentioned therein it had been given out by Dr. M Nisar Beg that the premises were required for starting his clinic and that he shall not let out to any one else. Accepting the prayer the accommodation was released in favour of Dr. M. Nisar Beg to enable him to start his own medical clinic. It appears, respondent Avdesh Singh, a practising Advocate at Lucknow made an application for allotment of these premises on 2-7-1983 for starting his professional chamber. It was given out in this application of allotment (Annexure-2) that it was a case of 'deemed vacancy' and the premises were under unauthorised occupation of Shri Salim Jehan. On the basis of this application inspection of the premises was made by the Rent Control Inspector and copy of his inspection report dated 3-8-1983 is Annexure-3 on record. According to this report this inspection was made when one Wajahat Hussain and Satish Kumar were present Wajahat Husain and Satish Kumar had given out orally before the Rent Control Inspector that from January, 1983 this accommodation was in the occupation and use for advertising business under the name and title Plain Pack Advertising and Marketing Company and this company was having 8 or 9 employees and its telephone number was 32166. Dr. M. Nisar Beg, Satish Kumar and Smt. Pawan Talwar were said to be partners of this company. According to this report, Dr. M. Nisar Beg was not present at the spot and no medical clinic articles were found there. In both the rooms the employees of the company were found working. According to this report Wajahat Hussain and Satish Kumar stated that no rent was being paid by them and the owner of the property was a partner. Some other persons, it is stated, informed the Inspector that the premises had been given by the landlord to the company. The Inspector, according to this report, then contacted Dr. M. Nisar Beg at 1, Victoria Street, Chowk, Lucknow, who informed the Inspector that the premises were released in his favour by order dated 20-9-1982 for starting his clinic but eventually he entered into partnership with the advertising company. In the later-part of the report it is mentioned that some articles of clinic of the owner were found at the first floor. In conclusion the Inspector reported that action under section 19 of the Act can be taken after affording opportunity to all the concerned. After notice, Dr. M. Nisar Beg filed his written objection dated 9-12- 1983 to the application for allotment. Counter-affidavit was filed by Dr. M. Nisar Beg. Copies of objection and counter-affidavit are Annexures-5 and 6 In this objection and affidavit, the points submitted were that he had opened his clinic in the accommodation in question but the stair case having 24 zigzag wooden steps, it was found, was not conducive and convenient for the ailing patients to reach the accommodation and in this way he did not succeed in establishing his professional practice and then decided to use this accommodation "in a befitting and lucrative manner, and for that he had to adopt appropriate ways and means to set up and float the publicity work on a sound advice and sound technique and expertise, on experimental basis and such experiment still continues. In case, it also fails, the objector, who has spent about Rs. 30,000/- on the repairs, renovations, furniture and fittings has a fundamental right to switch on to some other lucrative line of business for his survival" It was submitted that he was in continuous physical possession of the premises and, as such, section 19 was inapplicable and the proceedings were barred by time.
(3.) THE Prescribed Authority considering the report of the Rent Control Inspector and the material placed in the form of affidavits of the parties recorded that the landlord had taken the stand that he was a partner in the advertising agency business but he failed to produce any document relating to the partnership and no accounts etc. were also brought on record to establish that, the business was started by the landlord either as. a sole owner or as a partner. One of the pleas raised by the landlord before the Prescribed Authority was that action under section 19 of the Act could be taken only within three months from the date on which the landlord allegedly started this business and, as such, no order could be passed under these provisions. According to the Prescribed Authority, it was a case not covered by section 19 because as per evidence landlord had passed on the possession of the premises to a third person and it was a case of 'deemed vacancy'. THE persons who were in occupation and running the advertising business are unauthorised occupants. Accordingly, he passed orders for allotment of these premises in favour of the respondent. Aggrieved by order passed by Prescribed Authority dated 11-7-1984, the review petition was filed by Dr. Nisar Beg but the same was dismissed on 15-12-1986. Revision against the orders of the Prescribed Authority dated 11-7-1984 and 15-12-1986 was filed before the District Judge which was disposed of by VIII Additional District Judge, Lucknow, by his judgment and order dated 27-5-1987. During the course of this revision Dr. Nisar Beg died and his widow, the present petitioners were substituted as his legal representatives. It was held that the orders of the Prescribed Authority did not suffer from any jurisdictional or procedural illegality and that it was not open to the revisional court to re-appraise the evidence on record and give fresh finding of fact. One of the contentions raised before the revisional court was that section 19 was inapplicable because application for allotment was moved after expiry of three months from the date of the release. This contention was rejected with the observation that this application was well within three months from the date of the knowledge of the use of the landlord for a purpose for which the release was sought and granted. Another submission raised was that the Prescribed Authority ought to have given notice to the landlord before notifying vacancy under section 12 (4) of the Act. This plea was also negatived with the observation that the revisionist-landlord Dr. Nisar Beg had put in appearance in the proceedings and, as such, no grievance could be raised that no opportunity was afforded to him to object to the impugned order declaring vacancy and passing the order of allotment.;