KRIPA SHANKER SINHA Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner Prabha Shanker Sinha, since deceased, represented by legal representatives and heirs, filed the writ petition for a declaration that Section 5 of Ordinance No. 8 of 1984 which substituted new Explanation III to Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is ultra vires of the Constitution and also challenged the judgment and orders dated 5-3-1979 and 15-9- 1984 passed by the Prescribed Authority (Munsif), Ballia and the District Judge, Ballia, respectively.

(2.) PREMISES No. D/113 Mohalia Midhi, Baliia is owned by the respon dent No. 4 as owner and landlord and the petitioner was a tenant. An application was filed on 27-3-1978 by the respondent No. 4 that he is a Warrant Officer in Air Force posted at Delhi and his son is studying at Ballia. He required the premises in dispute for residence of his son and wife. The respondent had said that the accommodation in question fell in his share in the family partition. He needed the house in question for residence of his family members, wife and son who lived at Ballia. The respondent stated that he being a Warrant Officer, cannot keep his family along with him at all places. He has no other place for residence of his son and wife. The res pondent pleaded that the tenant-petitioner are resident of Suremanpur where he has a house and his sons lived there, engaged in agricultural and cultiva tion. The petitioner was said to have retired from service and there was no necessity for him to stay in the City of Ballia. The landlord's application for release was contested by the petitioner. He had denied that there was any partition between the landlord and his brother. He also said that the accom modation in tenance of the petitioner had not come in the share of the respon dent's landlord. As such he was not the landlord in the eye of law. The house in question was a property of opposite party No. 4's father Shri Brij Nath Sahai, who used to realise the rent from the petitioner. The petitioner alto stated that the landlords' wife does not stay with her son at Ballia but she lives with the respondent No. 4 at Delhi. It was also said that the respondent's son lives as a member of the joint family with his lather. The need for release of the house was incorrect. The landlord has no genuine need for the accommodation in question. The petitioner also said that his ancestral house at Suremanpur fell down in the floods of 1955 and he has no other place to live. The Prescribed Authority after examining the oral evi dence and affidavit of Sri Brij Nath Sahai, father of the respondent No. 4 re corded a finding to the effect that he is the landlord of the said accommodation qua petitioner. The Prescribed Authority relied on Section 21 (1) of Explana tion III of the U. P. Act No. 13 of 1972 and held that the respondent No. 4's son was studying at Ballia, and respondent No. 4's wife also lived at Ballia. He found that the need of the landlord was bona fide and genuine. The respondent No. 4 in his affidavit at Para 9 stated that the tenant has a house at Adarsh Nagar Mauja Gangapur. The details of the boundary of the said house was also stated in the affidavit. The petitioner had not denied the said fact. In Para 11 of his affidavit, Sri Kripa Shanker Sinha petitioner had only said that he was not living at Suremanpur. He has not denied that he has not built a house at Gangapur. Admittedly, the tenant-petitioner has retired from the service. There was no necessity of his living in the City at Ballia.

(3.) AFTER the judgment dated 4/6-4-1983 by the High Court an Ordi nance had been promulgated by the State Government (i) U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Amendment (ii) Ordi nance No. 1983. By this amendment clause (iii) in the Explanation to sub section (1) of Section 21 of the Act has been substituted. The substituted Explanation reads as under: "6. Amendment of Section 21.- In Section 21 of the principal Act, in sub-section (1) in the Explanation, thereto, for clause (iii), the following clause shall be substituted, namely, - " (iii) where the landlord of any building is - (1) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (IV of 1925), and such building was let out at any time before his retirement, or ; (2) a widow of such a solider and such building was let out at any time before the retirement or death of her husband whichever, occurred earlier, and such landlord needs such building for occupation by himself or the members of his family for residential purposes, then his representation that be needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purposes of clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building only. " the Ordinance has been made U. P. Act No. 17 of 1980.