SYEDA KANEEZ MOHD. Vs. VTH A.D.J.

JUDGEMENT

(1.) INSPITE of sufficient service no one has appeared for respondent No. 3 who had applied for allotment of the building in dispute. This writ petition is directed against order dated 27.1.1983 passed by R.C. and E.O. Aligarh declaring vacancy of the accommodation in dispute and order dated 5.8.1983 rejecting the release application of the petitioner landlady (case No. 112 of 1981) and order dated 12.3.1984 by V A.D.J., Aligarh dismissing the revision filed against the order rejecting the release application (U.P.U.B. Revision No. 83 of 1983). The case of the landlady was that she had only allowed one Javed Zaidi to use the accommodation in dispute which is in the from of two rooms only for two months as a guest and in the remaining portion petitioner continued to reside. R.C. and E.O. held that it amounted to vacancy. In my opinion giving of property to a person to reside as a guest does not give rise to vacancy. Even otherwise release application was wrongly rejected. Assuming for the sake of the argument that there was vacancy landlady deserved the release of the property because prior to giving the possession of the accommodation in dispute to Javed Zaidi and after its vacation by him landlady was residing in the accommodation in dispute. While considering the release applications under sections 16 and 21 of U.P. Act No. 13 of 1972 different considerations are to be kept in mind for the reasons that at the stage of section 16 there is no sitting tenant while at the stage of section 21 interest of sitting tenant is involved. While rejecting the release application through order dated 5.8.1983 R.C. and E.O. observed that landlady could reside alongwith other sisters in other rooms of the same building. It is not appropriate in release proceedings to direct the landlady to share the accommodation with other shareholders who reside in the same building. Every co -landlord deserves separate, independent accommodation. It is also important to note that prospective allottees have got no right to oppose the release application. Revisional Court dismissed the revision on the ground that affidavit of aforesaid Javed Zaidi was not filed. As Javed Zaidi had already vacated the premises, hence there was no need to file his affidavit. Moreover, no particular form of the evidence is required to prove a fact. Revisional Court should have decided the matter on the evidence available on record. In my opinion non -filing of affidavit of aforesaid Javed Zaidi was not fatal.

(2.) ACCORDINGLY , writ petition is allowed, both the impugned orders are set aside. Release application filed by landlady is allowed.