Gur Prasad Gupta vs IInd Additional District Judge and Others

Sudhir Narain, J.—This writ petition is directed against the order of th6 Prescribed Authority dated 2051982, rejecting the release application filed by he landlord petitioner and the order of the Appellate Authority dated2631983, dismissing the appeal against the said order.

Briefly stated the facts are that the petitioner filed application under Section 21(l)(a) of U.P. Act No. 13 of 1972 for release of ground floor portion of which . respondent No. 3 was tenant with the allegation that the landlord is living on the second floor, he is suffering from high blood pressure, hypertension with angina attacks and the doctors have advised him that he should reside on the ground floor which is under the tenancy of respondent No. 3. It was further stated that due to increase in the number of family members, the accommodation on the second floor with him is insufficient. He enumerated 12 members of his family in his application. Respondent No. 3 contested the application. It was denied that the petitioner was suffering from any heart ailment. It was further contended that the accommodation already with the petitioner is sufficient. The Prescribed Authority rejected the application on 2051982. The petitioner preferred an appeal. Respondent No. 1 dismissed the appeal on 2631983. These orders have been challenged in Ihc present writ petition.

I have heard Shri S.N. Vcrma, senior counsel for the petitioner and Shri Rajcsh Tandon, learned counsel for the contesting respondent.

Learned counsel for the petitioner contended that the petitioner is suffering from high blood pressure, hypertension with angina attacks. The doctors advised him to live on the ground floor. The petitioner offered to the tenant that he would give the second floor which is in his occupation but both the authorities under misapprehension of law and facts rejected this offer.

A perusal of the order passed by the Appellate Authority indicates that he relied upon the report of Dr. VK. Jain (Vijai Kumar Jain) wherein he had indicated that the petitioner is suffering from heart ailment. Respondent No. 3 had also submitted report of Dr. VK. Jain (Vimal Kumar Jain) wherein he had indicted that the pain of respondent No. 3 appears to be muscular only. It is contended that these two doctors were entirely different and secondly there was not justification for not accepting the certificate issued by Dr. VK. Jain (Vijii Kumar Jain) who certified that the petitioner is suffering from heart ailment.

The Appellate Authority has taken the view that the petitioner was working in a hotel which is situate on the first floor and, therefore, he can also reside on the second floor of the house. The mere fact that some person is working for the purpose of his avocation will not itself indicate that he is not suffering from heart ailment. The petitioner has further filed large number of documents which indicate that he had heart attack or was suffering from heart ailment.

During the pendency of this writ petition respondent No. 3 also died. He was suffering from heart ailment. In view of this subsequent event the Appellate Authority is to reexamine the matter afresh.

Learned counsel for the petitioner contended that during the last 20 years the need of family members of the petitioner has further increased. This writ petition is to be decided on the basis of the evidence already on the record. If on account of subsequent events and passage of time the petitioner requires further additional accommodation, it is open to him to file another application under Section 21(l)(a) of the Act. The Appellate Authority is to examine the question as to whether the petitioner should be provided the ground floor portion which was in occupation of respondent No. 3.

As the matter is old and the petitioner is about 82 years of age, the appeal is to be decided within six weeks from the date of production of a certified copy of this order. The case shall not be normally adjourned and if it is adjourned, not for more than three days.

In view of the above the writ petition is allowed. The order passed by the Appellate Authority dated 2631983 is hereby quashed and it is directed to decide the appeal keeping in view the above observations.

The parties shall bear shall bear their own costs. Petition allowed.