Judgement

NATARAJAN, J. :- The only question for consideration in this appeal by special leave is whether the order of release passed by the Prescribed Authority under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act hereafter) is a null and void order because the Prescribed Authority had no jurisdiction to pass the order as he did not possess the requisite qualification for being appointed as such authority.

2. Premises No. 58/3 Birhana Road, Kanpur is a three storeyed building and in addition it has a mezzanine floor as well. As early as in 1947, when the respondents who are brothers were minors, a portion of the ground floor and the entire first floor was leased out to the predecessor concern of the appellant by the father of the respondents. While the first floor was leased out for residential purposes, a portion of the ground floor was leased out for non-residential purposes. The respondents sought recovery of possession from the appellant of the leased portions for their residential needs and business purposes. It may be mentioned here that the respondents were already having their residence in the second floor and their business establishments in another portion of the ground floor. As the appellant refused to comply, the respondents preferred an application under S. 21 of the Act for an order of release in their favour to recover possession of the leased portions. Various defences were raised by the appellant to oppose the application but all the objections were found untenable by the Prescribed Authority and he, therefore, passed an order of release on 15-8-1975 holding that the requirement of the leased portions by the respondents for their residential and nonresidential purposes was a bona fide one and furthermore the. comparative hardship factor was more in their favour than in favour of the appellant. The findings of the Prescribed Authority were confirmed by the Appellate Authority (Additional District Judge, Kanpur) and thereafter the appellant filed a petition under Art. 226 of the Constitution before the High Court. For the first time the appellant raised a contention, by means of an amendment petition, that the order of the Prescribed Authority had been passed without jurisdiction and was therefore a nullity and in such circumstances its affirmation by the Appellate Authority could not also validate it. The High Court, though it allowed the amendment petition and permitted the additional question to be raised, did not set any merit in it on account of two factors. The first was that even if the order of the Prescribed Authority was a defective one, it had become merged with the order of the Appellate Authority when it was confirmed and as such there was no room for the appellant to assail the order on the question of jurisdictional incompetence of the Prescribed Authority. Besides, the High Court was of opinion that the question of jurisdictional competence of the Prescribed Authority to pass the order of release involved adjudication upon disputed questions of fact and such an exercise was beyond the scope of proceedings under Art. 226 of the Constitution. The High Court thereafter went into the correctness of the findings concurrently rendered by the Prescribed Authority and the Appellate Authority and found the findings to be fully in accordance with law and facts. The High Court, therefore, dismissed the writ petition filed by the appellant and hence the present appeal by special leave.

3. For a proper comprehension of the attack made on the competence of the Prescribed Authority to pass the impugned order of release, it is necessary to set out the terms of Cl. (e) of S. 3 which defines the Prescribed Authority under the Act as it stood before and after the amendment in 1974, and also the qualifications of Shri Senger who was the Prescribed Authority who had passed the order of release in this case.

4. Clause (e) of S. 3 of the Act was originally in the followin