- (1.) KRISHNA Murari, J. Heard learned Counsel for the parties.
(2.) THE dispute relates to first floor portion of house No. 15/51, Civil Lines, Kanpur. THE petitioners claim to be pur chaser of 1/3rd share by means of registered sale-deed dated 29-1-1992 which included the disputed first floor accommodation in which one Smt. Asha Gupta was tenant. THE application dated 6- 2-1992 was filed by respondent No. 3 for allotment on the allegation that tenant Smt. Asha Gupta is likely to va cate the premises. THE Rent Control and Eviction Officer asked for a report from the Inspector. THE Inspector sub mitted a report dated 13-4-1992 to the effect that the tenant Smt. Asha Gupta has given a statement before him that she is likely to vacate the tenanted por tion. THE Rent Control and Eviction Of ficer vide order dated 15-5- 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 ap plication was objected to by the prospective allottee respondent No. 3. However, the Rent Control and Eviction Officer vide order dated 21-10- 1993 dismissed the objection and held that the release application was fully main tainable. Respondent No. 3 challenged the order by filing the revision. THE Revisional Court also dismissed the revision and held that the release ap plication to be maintainable. THEreafter, the Rent Control and Eviction Officer vide order dated 8-8-1994 dismissed the release application and by the same order allotted the premises in dispute in favour of respondent No. 3. Feeling ag grieved, 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 Coun sel 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.
(3.) IT is well-settled 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 in stead of deciding the release applica tion filed by the petitioners the Rent Control and Eviction Officer wrongly and illegally proceeded to compare the need of the landlord and the prospec tive 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 pur chased 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 sale- deed and other evidence.;