R. M. Sahai, J. - (1.) COULD allotment under U. P. Act XIII of 1972 (hereinafter referred to as Act) have been made without deciding release application u/S. 16 of the Act is the question raised in this landlord's petition. In July, 1979 tenant of house was transferred. Petitioner applied for release. Lateron he confined his claim for release to only one room in the ground-floor. Remaining he desired to be allotted to his nominee. It was not accepted' by the Prescribed Authority. He dismissed the application for release and allotted the house except one room in ground floor to opposite party no. 3. In other words the claim of landlord was accepted to the extent that only portion of the house may be allotted. The order was affirmed in revision as well. The revising authority did not find any merit in claim of petitioner that provision of Section 17 (1) of the Act, applied to the facts of the case. Applicability of Section 17 (2) was also ruled out because it was not established that petitioner was in possession of the room in ground-floor. According to revising authority if he was in possession it was illegal. Sub-section (2) of Section 17 reads as under : "(2) Where a part of a building is in the occupation of the landlord for residential purposes, or is released in his favour under clause (b) of sub-section (1) of Section 16 for residential purpose, the allotment of the remaining part thereof under clause (a) of the said sub-section (1) shall be made in favour of a person nominated by the landlord." It is recognition of landlord's right to have a tenant of his choice in a house in which he is himself residing. Rationale of it obviously is peaceful living in a society of varied caste, social customs, religious differences etc. Nomination of the landlord, therefore, is of immense importance. The authorities are bound to accept it. Unlike nomination in Section 17. (1) which may in exceptional cases be disregarded, 'for public purpose of an urgent nature' (rule 10 (7)) there is no power to disregard nomination of landlord in a case covered bo Sub-section (2).
(2.) ASSUMING petitioner was not authorised to occupy the house or the room in groundfloor without any order of the Prescribed Authority there cannot be any dispute once an application for release was made the jurisdiction to allot the building or any part of it could not be exercised without deciding it. Although the application u/Sec. 16 was dismissed by Prescribed Authority but without consideration on merits. It has not been found by any of the authorities that need of petitioner was not bonafide. Without recording this finding application for release could not be dismissed. Nor could the. jurisdiction to allot be exercised. Because it is dependant and linked with release, it assumed greater importance in release of part only as the allotment of remaining portion has to be made to a person nominated by landlord. This right of landlord could not be frustrated or thwarted by device. In fact the Prescribed Authority succeeded in depriving petitioner of his right of nomination by adopting the method of dismissing the application for release for a room and yet permitting petitioner to continue to occupy it by allotting only a portion to opposite party no. 3. This could not have been done. An attempt has been made by learned counsel for petitioner to argue that although there is no specific finding but from the allotment of a part of the house in favour of opposite party it should be assumed that Prescribed Authority accepted the case of petitioner that his need was bonafide. In absence of any finding or even discussion it cannot be assumed that need of petitioner was found to be genuine. In the result this petition succeeds and is allowed. The orders passed by both the authorities are quashed. The Prescribed Authority shall first determine the requirement of petitioner u/Sec. 16 of the Act. In case it is found that the need of petitioner for release of the part of the building is bonafide then he shall proceed in accordance with law as provided u/Sec. 17 of the Act. As no body has appeared for opposite party no. 3, the allottee, there shall be no order as to costs.;