JUDGMENT N. K. Mehrotra, J.
1. This is a petition for issuing a writ of certiorari quashing the order dated 8.5.2002 as contained in Annexure-1 passed by the Prescribed Authority in Prescribed Authority Case No. 2/96 and the order dated 10.11.2003 as contained in Annexure-2 passed by the Additional District Judge/Special Judge, E.C. Act, Lucknow dismissing the appeal filed by the petitioner.
2. The petitioner is a tenant in a portion on the First floor of premises No. 31/37 known as premises No. 14, Mahatma Gandhi Marg, Lucknow on behalf of the opposite party No. 1, Shri Zafar Ibrahim. The Prescribed Authority under U. P. Urban Building Act, 1972 (hereinafter referred to as the 'Act, 1972') has allowed the application for release of the disputed premises under Section 21 on the ground that the landlord opposite party No. 1 has no other accommodation in the city of Lucknow and he desires to live in Lucknow after his retirement from the post of Director General, Police in Patna. The learned Prescribed Authority has also held that need of the landlord is the bona fide and on comparative hardship, it has been held that the landlord shall suffer the greater hardship if the release application is rejected than the hardships caused to the petitioner if the release application is allowed. The petitioner filed an appeal under Section 22 of the U. P. Urban Building Act, 1972 and this Rent Appeal No. 34/2002 has been dismissed by the learned Additional District Judge by giving the benefit of the provision under Section 21 (1A) of the Act, 1972. It is against these two judgments, this writ petition has been filed.
3. There are certain admitted facts between the parties. These admitted facts are that the opposite party No. 1 is the landlord of the disputed premises which is in possession of the petitioner for residential as well as for non-residential purposes. The opposite party No. 1 was the Director General, Police (Vigilance) in Patna and he retired on 28,2.1993. Before his retirement from the above post, the opposite party No. 1 was keeping a public building for residential purpose which had been provided to him as a condition of his service. After his retirement on 28.2.1993, the opposite party No. 1 vacated the public building in his occupation for residential purposes as D.G.P. (Vigilance) on 31.8.1993 and thereafter he started living with his wife in a building taken on rent by her. The wife of the opposite party No. 1 was also in service at that time and now she has also retired in January. 1998 and both husband and wife are residing in a private building taken on rent in Patna. Opposite party No. 1 moved an application under Section 21 (1) (a) which was registered at P. A. Case No. 26/90. It was dismissed in default. Later on a fresh application under Section 21 (1A) of the Act, 1972 was moved on 4.7.1996 (Annexure-5). In this application it was alleged on behalf of the landlord that he has retired from the Government service and he and his wife require the accommodation in dispute to shift to Lucknow and use the accommodation in dispute for residential as well as commercial purpose. A portion in the back of the disputed premises was given to Shri Shoeb Usmani after the death of the mother of the landlord with the understanding that he will vacate the same whenever the landlord would come back to Lucknow to reside permanently.
4. The application for release was contested mainly on the ground that the need of the landlord is neither genuine nor bona fide and the opposite party No. 1 along with his family has been peacefully and comfortably residing in a spacious accommodation at Patna and he has no intention to shift to Lucknow. The petitioner had filed the appeal under Section 22 of the Act on the following grounds :
"(a) That the appellant is the tenant of the premises in question since 1947-48 ;
(b) That the premises under the use of Mr. Shoeb Usmani is available for residential purposes to the applicant/landlord ;
(c) That another portion on the back of the building on the ground floor is lying vacant, which can be used by the applicant/ landlord for his own purposes ;
(d) That another P.A. Case No. 26 of 1990 has been dismissed, as not pressed, in default on 30.9.1994 ;
(e) That from the date of his retirement, i,e., 28.2.1993, the appellant has been residing in a private house at Patna at his own desire till the date, while the premises under the tenancy of Mr. Shoeb Usmani is already available for his residence as per mutual understanding ;
(f) That the present application under the appeal has been filed after lapse of 2 years after the dismissal of P. A. Case No. 26 of 1990 ;
(g) That the present application under appeal shown that the applicant landlord wants the premises not for his residence, but for starting coaching classes for higher service, as well as for his son and that such requirement of the applicant/landlord is not covered under provision of Section 21 (1A) of U. P. Act No. XIII of 1972 ;
(h) That the applicant/ landlord has also got allotted a house No. 49, at Mall Avenue in the name of Sri Rashmi Zafar ; and (i) That the application is not maintainable for the reason that rent of the building is more than Rs. 2,000.00 per month, hence provision of U. P. Act No. XIII of 1972 do not apply in the present case."
5. The learned appellate Judge has repelled all the contentions in view of the provisions under Section 21 (1A) and has dismissed the appeal. The appellate Judge has been of the view that in order to succeed in a release application under Section 21 (1A), the landlord has to establish the following facts :
(i) That he was in occupation of the public building.
(ii) That he had to vacate his official building on cessation of employment.
(iii) That he has no other house or accommodation for his residence as a right.
6. The appellate Judge has found that all these three facts have been established. The learned appellate Judge has also considered that in view of these three proved facts whether the provisions under Section 21 (1A) of the Act. 1972 would be applicable in the present case in the light of the judgment of this Court in Ramesh Gupta v. Naeemullah, 1998 (2) ARC 83. The appellate Judge has also upheld the finding of the Prescribed Authority in view of the decision of this Court in Banwari Singh v. Additional District Judge, Bareilly and Ors.. 1994 (1) ARC 518, that there is no limitation for filing an application under Section 21 (1A) of the Act if necessary condition laid down under that Section are satisfied. The appellate Judge has recorded the finding that cessation of employment of then applicant landlord is established and the eviction of the landlord from the official Government building is also established. It has also been found that the landlord has no other house or accommodation for his residence which he could occupy as of right.
7. The learned counsel for the petitioner has argued before me that even in the case of release application under Section 21 (1A). the landlord has to establish his genuine and bona fide need which has not been established in this case he has referred a decision of this Court in Kalyan Rai Saxena v. IInd Additional District Judge, 1982 (1) ARC 363. The ratio of this judgment in paragraph 16 of that report is as follows :
"We are therefore, of the opinion upon a scientific analysis of the relevant provision of the enactment and its avowed intent that it is intended in Section 21 (1A) that the landlord can invoke it until if he does not have in his possession an accommodation which he can occupy in his right after vacating the public building allotted to him in consequence of employment."
8. The phrase "which he can occupy in his right" is very material. The petitioner has to establish that the landlord opposite party No. 1 has some accommodation in his possession in his own right after vacating the public building. As said above, the accommodation in possession of the landlord in Patna is a rented accommodation. I am of the view that he is not occupying that premises in his own right. A plea was taken before the courts below that the landlord has got an accommodation allotted in Lucknow in the name of some other person but it could not be established.
9. Learned counsel for the petitioner has also referred a decision of this Court in Ramesh Das Gupta v. Naeemullah, 1998 (2) ARC 83, which has been discussed by the learned appellate Judge and he has referred that portion of this judgment in which this Court has discussed the circumstances when the provision of Section 21 (1A) of the Act, 1972 would not be attracted. In this case, the High Court has drawn a distinction between the cases where the landlord has been in occupation of some residential accommodation of his right since before moving the application for release or gets such an accommodation during the pendency of the release application, which he could occupy of his right and the cases where the landlord had to make a temporary arrangement for his residence only for a limited period till his application was decided.
10. It has been held that to the former classes of cases provisions of Section 21 (1A) would not apply. Here in the instant case, there is nothing before this Court to hold that the landlord has some residential accommodation as of his right since before the moving of the release application or he has got some accommodation during the course of the pendency of the release application either at Patna or Lucknow. Whatever accommodation is in the possession of the landlord is the rented accommodation which he had taken because his wife was serving in some educational institution even after the retirement of the opposite party No. 1 from the post of Director General of Police (Vigilance). Even in this judgment of Ramesh Das Gupta (supra), the ratio of the decision is as follows :
"The object of enacting Section 21 (1A) appears to be to provide an immediate shelter to a landlord who is living without any accommodation in consequence of having to vacate a public building upon cessation of his employment. A provision has been made to meet the exigencies arising out of the land being confronted with serious problem of finding accommodation for his residence after being deprived of the use of the public building which was allotted to him so that he might rehabilitate himself without going through a rigorous and consuming process provided under Section 21 (1A) of the Act. Where the provision of Section 21 (1A) is attracted, the need of the landlord would be presumed to be genuine and his requirement must necessarily take precedence over that of the tenant. Where this subsection is attracted, the Prescribed Authority has not been given any option with regard to the making of an order of eviction. This sub-section is couched in a mandatory language as is evident from the fact that the Legislature has employed the word 'shall' whereas Sub-section (1) uses the word 'may'. The mandate of the Legislature is further amplified by the fact that this sub-section has an overriding effect as this provision begins with a non-obstance clause not-withstanding'. Where this sub-section applies, it will be against the true intent of the Legislature, if the authority concerned is asked to make an enquiry regarding the need and requirements of the landlord to weigh the likely hardships of the parties."
11. Learned counsel for the petitioner has next referred a decision of this Court in Govind Ram v. IInd A.D.J., Saharanpur and Anr., 2000 (2) ARC 92. In this case, the High Court after referring the Division Bench Judgment of this Court in Kalyan Rai Saxena v. IInd A.D.J.. Bulandshahr (supra) has held that the landlord can invoke Section 21 (1A) of the Act only if he does not already have in his possession an accommodation which he can occupy in his own right after evicting the public building allotted to him in consequence of his employment. In this case there was a contention that the landlord had some own property in Hardwar and Delhi and therefore, the matter was remanded to record a finding whether the accommodation in possession of the landlord at Hardwar and Delhi is insufficient after keeping in view the need of the family members status and other requirement of the landlord. So this decision also lays down the law that the landlord cannot invoke Section 21 (1A) only if he has some accommodation in his possession in his own right. The provision of Section 21 (1A) are as follows :
"21 (1A). -- Notwithstanding anything contained in Section 2, the Prescribed Authority shall, on the application of a landlord in that behalf order the eviction of a tenant from any building under tenancy, if it is satisfied that the landlord of such building was in occupation of a public building for residential purposes, which he had to vacate on account of the cessation of his employment :
Provided that an application under this sub-section may also be given by a landlord in occupation of such public building at any time within a period of one year before the expected date of cessation of his employment, but the order of eviction on such application shall take effect only on the date of his actual cessation."
12. Section 2 of the Act provides the list of those buildings which will be exempted from the operation of the Act. In view of the aforesaid provisions and the cases cited by the learned counsel for the petitioner. I am of the view that in the cases in which the landlord can invoke the provision of Section 21 (1A) of the Act, 1972, he is not required to prove the genuine and bona fide need just for release under Section 21 (1A) of the Act. After agreeing with the decision cited by the learned counsel for the petitioner, I further hold that if the landlord has any accommodation in his possession in his own right only then he has to prove the genuine and bona fide need and comparative hardships for getting the release of the disputed accommodation under Section 21 (1A) of the Act.
13. Learned counsel for the petitioner has further relied certain other decisions in Vijay Kumar Srivastava v. Avnish Chandra, 1994 (12) LCD 703 ; Dr. Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCO 247 ; Jawahar Lal Sazawal and Anr. v. State of Jammu and Kashmir and Ors., (2002) 3 SCC 219 and Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, (2000) 5 SCC 346. In view of my finding that there is no evidence to establish that the landlord opposite party No. 1 has any accommodation in his possession in his own right either at Patna or at Lucknow and in view of the fact that there is no question of disagreeing with the earlier decision of this Court cited by the learned counsel for the petitioner. I need no discuss of these decisions referred to by the petitioner.
14. In Surya Dev Rai v. Ram Chandra Rai. JT 2003 (6) SC 465, it has been held by Hon'ble Supreme Court that under Article 226 of the Constitution of India, certiorari is issued for correcting cross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) Without jurisdiction by assuming Jurisdiction where there exists none, or (ii) In excess of his jurisdiction by overstepping or crossing the limits of jurisdiction ; or (iii) acting in flagrant disregard of law or the rules of procedures or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice.
15. In view of the findings of facts recorded by the two courts below, I do not find it a case of jurisdictional error or any patent error in flagrant disregard of law or the rules of procedures or principles of natural justice. After following the decision referred to by the petitioner. I am of the view that there is specific finding of the two courts below that whatever accommodation is in possession of the landlord in Patna is a rented accommodation. It cannot be said to be accommodation in possession of the landlord in his own right. Therefore, the landlord opposite party can invoke the provision under Section 21 (1A) of the Act and in such circumstances, he is not required to prove genuine and bona fide need or comparative hardships and because here is no jurisdictional error in the two impugned judgments, the writ petition is to be dismissed but at the same time, it is desirable that the petitioner being a public body should be permitted three months time to vacate the premises so that they may find out another suitable accommodation to shift.
16. In view of the above, the writ petition is dismissed with the direction that the petitioner shall vacate the disputed premises on the expiry of a period of three months.