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Judgment
Krishna Murari, J.—Heard learned Counsel for the parties.
The dispute relates to first floor portion of house No. 15/51, Civil Lines, Kanpur. The petitioners claim to be purchaser of 1/3rd share by means of registered saledeed dated 2911992 which included the disputed first floor accommodation in which one Smt. Asha Gupta was tenant. The application dated 621992 was filed by respondent No. 3 for allotment on the allegation that tenant Smt. Asha Gupta is likely to vacate the premises. The Rent Control and Eviction Officer asked for a report from the Inspector. The Inspector submitted a report dated 1341992 to the effect that the tenant Smt. Asha Gupta has given a statement before him that she is likely to vacate the tenanted portion. The Rent Control and Eviction Officer vide order dated 155 1992 declared vacancy. On the same day, the petitioner moved an application under Section 16 of U.P. Act No. XIII of 1972 (for short ''the Act'') for release. The said application was objected to by the prospective allottee respondent No. 3. However, the Rent Control and Eviction Officer vide order dated 2110 1993 dismissed the objection and held that the release application was fully maintainable. Respondent No. 3 challenged the order by filing the revision. The Revisional Court also dismissed the revision and held that the release application to be maintainable. Thereafter, the Rent Control and Eviction Officer vide order dated 881994 dismissed the release application and by the same order allotted the premises in dispute in favour of respondent No. 3. Feeling aggrieved, the petitioner filed a revision which has also been dismissed.
It has been urged by learned Counsel for the petitioner that the Rent Control and Eviction Officer as well as Revisional Court has committed a manifest illegality inasmuch as release application of the petitioner ought to have been decided first before proceeding to consider the allotment application of respondent No. 3.
There appears to be force in the argument advanced by learned Counsel for the petitioners. The release of the disputed accommodation was sought by the landlord on the ground that there are eighteen members in his family and they are living in a very small tenanted accommodation. It was also stated that sons and daughters are of growing age and are students and they require separate accommodation for their studies. The Rent Control and Eviction Officer instead of deciding the release application filed by the petitioners on its merit proceeded to compare the need of the prospective allottee with the petitioners and after recording a finding that the need of the prospective allottee was more genuine rejected the release application and allotted it in favour of respondent No. 3. The approach of the Rent Control and Eviction Officer was patently illegal.
It is wellsettled that the release application filed by the landlord has to be considered first on its own merits and it is only after the same is rejected the authority can proceed to consider the allotment. In the present case instead of deciding the release application filed by the petitioners the Rent Control and Eviction Officer wrongly and illegally proceeded to compare the need of the landlord and the prospective allottee and finding the need of the prospective allottee to be more allotted it in his favour. The same mistake''has been committed by the Revisional Court.
There also appears to be some dispute, with regard to the fact whether the accommodation in dispute falls within 1/3rd share which was purchased by the petitioner or not. Though some arguments have been raised in this regard but the dispute being question of fact cannot be effectively gone into in writ jurisdiction. The said dispute can be easily resolved by the authorities below on the basis of saledeed and other evidence.
An application for impleadment has been moved by one Mehedi Hasan on the ground that the first floor of the accommodation in dispute has been purchased by him and the same has been released in his favour by the Rent Control and Eviction Officer vide order dated 10121998 in case No. 90 of 1998. Though the petitioners have denied the allegation made in the impleadment application but again these are disputed question of fact which can be better ascertained and adjudicated by the Rent Control and Eviction Officer on the basis of evidence.
Considering the facts and circumstances, the order dated 881994 and 1811995 passed by respondent Nos. 2 and 1 respectively are hereby quashed. The case is remanded back to the Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar to decide it afresh in accordance with law and in the light of the observation made hereinabove.
In the result, the writ petition stands allowed.
Sri Mehedi Hasan who has sought impleadment in the present writ petition is permitted to move an application in the proceedings before the Rent Control and Eviction Officer and to lead evidence of his claim of having purchased the accommodation in dispute and the same having been released in his favour as alleged by him. In case any such application is made the same shall be considered by the Rent Control and Eviction Officer in accordance with law.