- (1.) B. K. Rathi, J. Heard Sri W. H. Khan, learned counsel for the petitioners and Sri Chhotey Lai, learned counsel for Respondent No. 3.
(2.) THE premises in suit is house No. lll-A/214, Ashok Nagar, Kanpur Nagar. It was declared vacant on 26- 2-2001. That order of vacancy was challenged in this High Court in writ petition No. 8394 of 2001. THE writ petition was dismissed on 26-4-2001 by order Annexure-3 to the peti tion with the following observation: 'it is made clear that inspite of the fact that the tenanted accommodation has fallen vacant, the petitioner shall be entitled to move an application for fresh allotment in view of the proviso (b) to Rule 10 (6) of the Rules framed under the Act and if the District Magistrate is satisfied that the tenanted building as well as the other building in occupation of Ashok Chhabara are occupied separately and that there is separate messing, he may re-allot the building under the tenancy of the petitioner and his son Prem Chhabara who have become joint tenants after the death of the original tenant late Radha Kishan Chhabara. ' After the decision of the writ peti tion against the declaration of vacancy, the premises in dispute have been released in favour of the landlord Respondent No. 3 by order dated 2-5-2001, Annexure-2 to the petition. Against that order, the petitioner preferred a revision under Sec tion 18 of U. P. Act No. XIII of 1972 which has also been dismissed on 5-5-2001, An-nexure-1 to the petition. Aggrieved by it, the petitioner has invoked extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. Sri W. H. Khan, learned counsel for the petitioner has placed reliance on the above observation of the writ petition. However, it is of no avail to the petitioner. After the declaration of the vacancy, the question of release of the premises is to be considered first and in case the release application is rejected the question of al lotment can beconsidered. In this case, the question of release was considered and the premises was released. Therefore, the stage for considera'ion of the question of allotment did not arise. Therefore, the petitioner cannot get any benefit of the observations made in the writ petition mentioned above.
(3.) IT is next contended by Sri W. H. Khan that the Respondent No. 2 has erred in releasing the accommodation. The petitioner is prospective allottee and has no right to contest the release. However, it is contended that he has placed certain materials on record and it was incumbent on the Respondent No. 2 lo consider the same. In support of the argument, learned counsel for the petitioner referred to the decision of Ram Kumar v. Vlhhaddl Dis trict. fudge, Meerut, 1993 (21) ALR 388. In this case, it was held that the prospective allottee can neither file objections against release application nor can contest it. However, it was further observed that the facts necessary for showing that the need of the landlord is not bonafide, stated by the tenant can be taken into consideration for examining the bona fide need of the landlord. The other case referred to is Bisheshwar v. Vlth Addl. District Judge, Varanasi, 1994 (24) ALR 319. IT was held by this Court that the District Magistrate can take evidence from any source for deciding release application, including from a prospective allottee. On the basis of this, it is contended that the learned Prescribed Authority should have con sidered the documents which were placed by the petitioners on record. The docu ments are the record of Nagarpalika show ing the premises in possession of the petitioners which are paper Nos. 55 and 56 of this petition. That they show that landlord has no need of the disputed premises. As against this, learned counsel for the Respondent No. 3 has referred number of case in which it has been laid down that the prospective allottee can no t dispute the release application not can challenge it by way of revision or writ petition. In the case of Swaroop Narain Srivastava v. IVth Addl District Judge, 1994 (24) ALR 261 (SC), it was observed that when application made by landlord for release of his vacant build ing as well as by former tenant for reallot ment thereof, it was held that the landlord's application must be considered in preference to tenant's application. The other case referred lo is Smt. Krishna Rani v. District Judge, Dehradun, 1990 (16) ALR 448, wherein it was observed that the prospective tenant's objection cannot be considered in an application for release, it was further observed that the prospective allottee has no locus standi to be heard. In Baboo Mohd. Yaqoob v. R. C. and E. O. , 1987 (13) ALR 485, it was held that the prospec tive allottee has no right to participate in the release proceedings.;