- (1.) S. U. Khan, J. This is landlords writ petition. Release application filed by them under Section 16 of U. P. Act No. 13 of 1972 was rejected by R. C. and E. O. 1st, Allahabad on 23-12-1987. The said order was passed in Case No. 119/87, Smt. Asha Misra v. Hafiz Alim & Ors. Against the said order landlords petitioners filed R. C. Revision No. 10/80 which was also dismissed on 12-1-1980 by XII A. D. J. , Allahabad hence this writ petition.
(2.) IN the release application it had been stated that landlord were four brothers. They had two houses at Sadiabad, Allahabad apart from the house in dispute and that in one of those houses two of the landlords who are respondent Nos. 4 and 5 in the instant writ petition kept their households goods as they were employed outside Allahabad, it was further stated that in the other house of Sadiabad House No. 114 landlord petitioner No. 1 was residing with his family and intend to use one room of the house in dispute for opening his clinic. It was further stated that petitioner No. 2 who was in military service and retired from INdian Army intend to reside with his family in the house in dispute. Respondent No. 3 Smt. Asha Misra had filed allotment application. R. C. and E. O. after hearing landlords as well as respondent No. 3 and after entertaining evidence adduced by respondent No. 3 and hearing the arguments advanced on her behalf held that need of the landlord was not bona fide. R. C. and E. O. states as follows: "i have heard the learned Counsel for landlord and applicant for allotment Smt. Asha Misra at length. " As held by Full Bench authority of this Court in Talib Hasan v. A. D. J. , 1986 (12) ALR 113 (F. B.), and Supreme Court in R. N. Sharma v. S. Gaur, AIR 2002 SC 2204, prospective allottee is not entitled to oppose the release application of the landlord under Section 16 of the Act and he cannot be heard in opposition of such release application. R. C. and E. O. decided the matter as if he was hearing these matter under Section 21 of the Act in between landlords and sitting tenant. By the same order R. C. and E. O. rejected the release application of the landlord and allotted the premises in dispute to respondent No. 3. R. C. and E. O. found that petitioner No. 1 landlord had converted a verandah of one of the houses at Sadiabad into a room and was using the said portion as clinic. This fact completely proved the bona fide need of landlord petitioner No. 1. It is only under great compulsion and due to acute scarcity of the accommodation that one converts the residential verandah into a room for being used as clinic.
(3.) LEARNED respondent No. 2 had retired from Military service and there could not be any doubt about his bona fide to require the house in dispute for his and his family members residence. If two other landlords i. e. respondent Nos. 4 and 5 were keeping their goods in the other house at Sadiabad Bearing No. 102 no fault can be found in that regard. Every co-sharer has got share in joint house and is entitled to use the same in any manner.;