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1976 DIGILAW 746 (ALL)

Lami Narain v. IInd Addl. District Judge

1976-11-10

N.D.OJHA

body1976
JUDGMENT N.D. Ojha, J. - The petitioner is the tenant of an accommodation of which respondent No. 1 is the landlord. She made an application under section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 for permission to file a suit for ejectment against the petitioner. This application was allowed by the Rent Control and Eviction Officer. Against that order, a revision was filed before the Commissioner. Before the revision could finally be disposed of the Act, aforesaid was repeated by U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. In view of section 43 (2)(m) of the new Act, the said revision was transferred to the District Judge. The revision was allowed in part by the Second Additional District Judge on October 7,1976. By this order, he modified the order of the Rent Control and Eviction Officer to this extent that the permission granted by him was maintained in respect of only two rooms immediately continuous to the portion in possession of the landlord. The application for permission in respect of the remaining portion was dismissed. It is this order of the Additional District Judge which is sought to be quashed in the present Writ Petition. 2. It was urged by counsel for the petitioner that the Additional District Judge committed a manifest error of law in bifurcating the tenancy. According to counsel, since the proceedings had been initiated under section 3 of the Old Act, it was not permissible to the Additional District Judge to bifurcate the tenancy. While deciding the revision, it was the procedure as contained in the old Act which had to be followed. In my opinion, there is no substance in this submission. A Full Bench of this Court, in Karam Chand v. Balmukand and others, ALR 1976 (2) 641 has held, "A revision relating to the grant of permission under section 3 of U.P. Act III of 1947 pending immediately before the commencement of the new Act (U.P. Act No. 13 of 1972) before the Commissioner and transferred to the District Judge on commencement of the new Act shall be decided in accordance with the procedure and conditions laid down in section 21 of the new Act and not in accordance with the provisions of U. P. Act III of 1947." 3. In view of the Full Bench decision in Karam Chand's case (supra), the (Additional District Judge was bound to decide the revision in accordance with the procedure and conditions laid down in section 21 of the new Act. It is not disputed that under section 21 of the new Act, it is open to the authorities concerned to pass an order for release not only in respect of the entire accommodation but also in respect of a portion thereof. The order of the Additional District Judge consequently does not suffer from any manifest error of law on this point. 4. It was then urged by counsel for the petitioner that while considering the need of the landlord the Additional District Judge has stated that there were twelve members in her family. According to counsel, out of these twelve members two of them, namely, cousin of the landlord and the wife of the said cousin did not come within the definition of the term 'family' as contained in section 3 (g) of the new Act. It was urged that since the revision has been decided in accordance with the procedure and conditions laid down in section 21 of the new Act, the need of the cousin and his wife could not be considered while determining the need of the landlord. In my opinion, even if this submission is accepted, it does not make any material difference and the order of the Additional District Judge does not deserve to be quashed on the ground. The reason for taking this view is that Additional District Judge has recorded a finding that apart from the two rooms which had been ordered to be released in favour of the landlord by him the need of the landlord for one more room was still there but it could not be made available to her having regard to the need of the tenant. In this view of the matter, even if the cousin and his wife are excluded from consideration the two rooms released in favour of the landlord cannot be said to be more than her requirement. A writ of certiorari does not issue as a matter of course In view of the aforesaid finding of the Additional District Judge, I am of opinion that substantial justice has been done between the parties and it is not a fit case for interference on this technical ground. A writ of certiorari does not issue as a matter of course In view of the aforesaid finding of the Additional District Judge, I am of opinion that substantial justice has been done between the parties and it is not a fit case for interference on this technical ground. In so far as the finding that the need of the landlord was established and was greater for the two rooms released in his favour than that of the tenant, suffice it to say that it is a finding of fact based on appraisal of evidence and cannot be challenged in a writ petition. 5. No other point has been pressed. 6. In the result, I find no merit in this petition. It is accordingly dismissed, but in the circumstances of the case there will no order as to costs.