JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order of the Prescribed Authority dated 6.9.1997 releasing the disputed accommodation in favour of the landlord-respondent No. 3 under Section 21 (1A) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act) and the order of the Appellate Authority, respondent No. 1, dated 4.4.1998 dismissing the appeal against the aforesaid order.
2. The facts, in brief, are that respondent No. 3 filed an application for release of the disputed accommodation on the allegation that he was employed in Indian Air Force in the Flying (Pilot) Branch. He retired from service on 31st August. 1994 in the rank of Group Captain from Western Air Command. Subroto Park, New Delhi. He was occupying a Government quarter which he had to vacate prior to his retirement. He wanted to settle in his home town Kanpur in the disputed house of which the petitioner is tenant.
3. The application was opposed by the petitioner. She denied that there was any relationship of landlord and tenant between her and respondent No. 3. She stated that her husband was a tenant. It was further denied that respondent No. 3 requires the accommodation in question. He owns Flat No. G-99, Sector 25. NOIDA. Ghaziabad, and is permanently residing there. One of the legal pleas taken was that the accommodation was let out without any allotment order in the year 1980 and therefore the application for release under Section 21 (1A) of the Act was not maintainable. The Prescribed Authority, on consideration of the evidence, came to the conclusion that the petitioner was a tenant of the disputed accommodation and the application was maintainable. It was found that the petitioner failed to establish that respondent No. 3 owns Flat No. G-99, Sector 25. NO1DA. Ghaziabad, and on these findings, the application was allowed on 6.9.1997. The petitioner preferred an appeal against this order. Respondent No. 1 dismissed the appeal on 4.4.1998.
4. I have heard Sri Ravi Kiran Jain, Senior Advocate, for the petitioner and Sri S. D. Singh, learned counsel for respondent No. 3.
5. The learned counsel for the petitioner has challenged the finding recorded by both the authorities that there was relationship of landlord and tenant between the petitioner and respondent No. 3. It is urged that the landlord had relied upon an agreement dated 4.7.1983 which was alleged to have been executed by the petitioner wherein she had admitted herself as tenant of the disputed premises. It is contended that respondent No. 3 had filed only the photostat copy and the execution of this document was denied by her. This document was not proved by respondent No. 3 in accordance with law. The husband of the petitioner was claiming that he was a tenant and not his wife. He had also filed an application for impleadment but that application was wrongly rejected.
6. I have perused the findings recorded by the authorities below. It is admitted that the rent receipts were issued in the name of the petitioner but her explanation was that such rent receipts were issued with a view to get another electricity meter installed. The petitioner has. however, not filed any other receipt, which was Issued in the name of her husband. Admittedly the petitioner and her husband both are residing in the same house. It was a matter of assessment of evidence by the authorities below, I do not find any legal infirmity in the finding recorded by the authorities below that the petitioner was a tenant of the disputed premises.
7. Secondly, it is urged that the accommodation was admittedly let out in the year 1980 when the provisions of U. P. Act No. XIII of 1972 were applicable. The accommodation was occupied by the tenant without any allotment order and such occupation was in contravention of Sections 11 and 13 of the Act. Section 13 of the Act provides that where tenant occupies any accommodation without any allotment order under Section 16 of the Act. he shall be deemed to be unauthorised occupant of such building or part thereof. He has placed reliance upon Full Bench decision of this Court in Nutan Kumar and others v. IInd Additional District Judge, Banda and others, 1993 (2) ARC 204, wherein it has been held that any tenancy in contravention of Section 16 (b) of the Act shall be treated as invalid. This case was considered in Brij Nandan Sahai Hajela v. IIIrd Additional District Judge, Saharanpur, 1996 (1) ARC 165, wherein it was held that a tenant who himself admits as tenant in the written statement, cannot raise such objection when application is filed under Section 21 (1) (a) of the Act. Learned counsel for the petitioner tried to distinguish this case on the ground that the petitioner has not admitted herself as tenant of the disputed accommodation. This hardly makes any difference on the facts and circumstances of the present case. The petitioner was found to be the tenant of the disputed accommodation by both the authorities. Moreover, on the finding she was tenant and occupying without allotment order and cannot oppose the eviction as unauthorised person has no right to continue to occupy an accommodation.
8. It may further be noted that the application for release was filed under Section 21 (1A) of the Act which provides that notwithstanding anything contained in Section 2, the prescribed authority shall, on the application of landlord in that behalf.
order the eviction of a tenant from any building under the tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes which he has to vacate on account of cessation of his employment. This provision mandates that the prescribed authority shall order the eviction of a tenant from any building under the tenancy as distinct from expression "prescribed authority may order eviction of a tenant from the building under the tenancy." This aspect has been considered in detail in M. P. Singh v. II Additional District Judge, Dehradun, 1993 (1) ARC 210. In view of the above, the application filed against the petitioner by respondent No. 3 under Section 21 (1A) of the Act was maintainable.
9. The last submission of the learned counsel for the petitioner is that respondent No. 3 owns Flat No. G-99, Sector 25. NOIDA. Ghaziabad as it was allotted to him under hire purchase scheme by Jalvayu Vihar Sahkari Sangh Avas Samiti which is constituent of Air Force Navy Housing Board. The petitioner filed telephone directory to show that he possesses a telephone there and a directory for the year 1992-93 of Jalvayu Awas Samiti. It indicated the name of respondent No. 3 as occupant of Flat No. G-99. This document did not prove that respondent No. 3 was owner of that flat. Respondent No. 3 had denied that he owns this flat. The authorities below had recorded finding that the petitioner failed to establish the ownership on the said facts. I do not find any legal infirmity in the finding recorded by the authorities below.
10. There is no merit in the writ petition. It is accordingly dismissed. However, considering the facts and circumstances of the case the petitioner is granted six months time to vacate the disputed accommodation provided the petitioner gives a written undertaking on affidavit before the prescribed authority, respondent No. 2, that she would vacate the disputed accommodation within the time granted by this Court and will hand over its peaceful possession to the landlord-respondent No. 3.
11. The parties shall bear their own costs.