- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 21-7-1282 passed by the District Judge, Kanpur allowing the release appli cation filed by the landlord, respondent No. 2.
(2.) GAYA Prasad claiming himself to be landlord filed application for release of the disputed accommodation on the allegation that it was vacant and he required it for the need of members of his family. The accommodation was finally declared vacant by the District Judge vide order dated 10-12- 1981. The petitioner claiming himself as prospective allottee filed objection to the release application. He denied that the need of the landlord was not bona fide. The release application was rejected by the Rent Control and Eviction Officer vide order dated 29-12-1981. He held that the landlord has two rooms on the ground floor and according to the quinquennial assessment of the municipal record the landlord had four rooms on the first floor which were sufficient for the need of his family. He further held that though the accommodation had fallen vacant but the petitioner was still residing and by the same order he allotted the accommodation to the petitioner. The landlord being aggrieved against the said order filed revision before the District Judge, Kanpur Respondent. No. 1 found that the need of the landlord was bona fide and released the accommodation in his favour. The petitioner has filed this writ petition against the said order. It is not denied that the status of the petitioner is only that of a prospective allottee. He has no right to file writ petition against the order releasing the disputed accommodation in favour of the landlord. In Full Bench decision of this Court Talib Hussain v. IInd Additional District Judge, Nainital, 1986 (1) ARC (FB) 1, this Court held that a prospective allottee has no right to file objection against release application nor he is entitled to any hearing in the disposal of release application on the general principle of doctrine of audi alterant partem. Relying upon this Full Bench decision it was held in Smt. A. Albert alias Smt. Radha Sharma v. VII Additional District Judge, Bulandshahr, 1987 (1) ARC 397, that the prospective allottee has no right to file a revision against an order passed by the Rent Control and Eviction Officer releasing to the disputed accommodation in favour of land lord under Section 16 (1) of U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act ). In Ved Prakash v. VIIIth Additional District Judge, Ghaziabad, 1993 (1) ARC 442, the Rent Control and Eviction Officer had rejected the release application but it was allowed in revision under Section 18 of the Act. It was held that writ petition against such order was not maintainable at the instance of a prospective allottee. The Full Bench decision of this Court in Talib Hussain, (supra) has been recently affirmed by their Lordships of the Supreme Court in Vijai Kumar Sonkar v. In-charge District Judge, 1995 (2) ARC 1, and it was held that the prospective allottee has no right to contest the release application and to be heard. It was observed that the prospective allottee has no right to resist the landlord in release proceedings. Learned counsel for the petitioner has placed reliance upon the decision Brij Bhushan Das Srivastava v. IIIrd Additional District Judge, Varanasi, 1995 (1) ARC 158, wherein this Court dealing with the rights of the prospective allottee made the following observation : -. "a preliminary objection raised on behalf of the respondent, is about the maintainability of the writ petition at the instance of a pros pective allottee, in the matter of release sought by the landlord. There is no doubt about the legal position that prospective allottee has no right to be heard in the matter of release, sought by a land lord. Yet, however, it is the duty of the R. C. and E. O. and for this matter the Revisional Court, to consider all material, relevent, to the question of release, including such, as may be placed by a prospective allottee, but without permitting him to participate in the hearing. In this view of the matter, although technically, the writ petition may not lie to the affect that opportunity of hearing was not afforded, in its extraordinary jurisdiction, under Article 226 of the Constitution, this Court can very well look into the legality or otherwise of the impugned order and the writ petition could not be thrown on the technical ground of the petitioner's incapability to prefer the same. "
(3.) IN this decision also the Court held that the prospective allottee has no right to be heard. It was, however, taking into consideration the extra ordinary jurisdiction under Article 226 the Court proceeded to consider the matter. The Court, bower, did not take the view that the writ petition at the instance of prospective allottee is maintainable. As the revision at the instance of prospective allottee is not maintainable under Section 18 of the Act it cannot be urged that writ petition is maintainable against an order releasing the property in favour of the landlord. The petitioner, however, was also heard on merits. It was urged that the Court in revision had no jurisdiction to set aside the finding under Section 18 of the Act and re-assess the evidence and record its own finding.;