SURENDRA SINGH Vs. SUKHRAM DAS

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India arising out of proceedings under the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act 1972, U. P. Act XIII of 1972, hereinafter referred to as the Act. The property in dispute is house No. 119/393, Darshanpurwa, Kanpur. The petitioner is the owner and landlord of the said premises. Opposite party No. 1 Sukhram Dass is the tenant of the said premises at the rate of Rs, 25/- per mensem. Sukhram Das having constructed his own house in the same locality and city being house No. 118/461-A, Kaushalpuri, Kanpur in the year 1975 an inspection was got conducted by the Rent Control and Eviction Officer and ultimately the property was declared vacant in the eye of law. The petitioner moved an application for release on the ground of this bona fide need. The Rent Control and Evication Officer after examining the evidence on record recorded a categorical finding of fact that the opposite party No. 1 has built a residen tial building in the same city and as such deemed the property as vacant under Section 12 (3) of the Act. The application of the Landlord was also considered on the question of bona fide need and the Control and Eviction Officer, there after recorded a fir ding that the need of the petitioner was bona fide. Ultimately on 30th June, 1975, the property was, therefore, released in favour of the petitioner. Aggrieved by the order dated 30th June, 1978 a revision was filed by the opposite party No. 1 before the learned District Judge, Kanpur. The revision was decided by the 1st Additional District Judge, Kanpur who allowed the revision and set aside the release order. Aggrieved by the order dated 14th February, 1979, the present petition has been filed in this Court. Learned Counsel for the petitioner has urged that the revisional Court has acted illegally and with material irregularity in the exercise of its jurisdiction in setting aside the findings recorded by the Rent Control and Eviction Officer that the property built by the opposite party No. 1 was a residential building. I have heard the learned counsel for the parties at length. Admittedly, the opposite party No. 1 has built the house No. 118/46,-A, Kailashpuri, Kanpur. The ground floor of the said house consists of a tin-shed, and a small courtyard used for dairy farm and six shops. Further constructions were made on the first floor. There are six rooms built on the first floor. The Rent Control and Eviction Officer after examining the reports of the Inspector as well as other circumstances came to the conclusion that the accommodation built by the opposite party No. 1. On the first floor was a residential accommodation and as such deemed the property to be vacant under Section 12 (3) of the Act. The revisional Court again reassessed the evidence and thereafter came to the conclusion that the first floor was not a residential accommodation, and held that it cannot be deemed to be vacant under Section 12 (3) of the Act. It is no doubt true that the question whether a property can be deemed to be vacant or not is a jurisdictional fact and as such, it was open to the revisional Court to determine the question as to whether on the facts found it could be held to be deemed vacant in the eye of law under Section 12 (3) of the Act. The revisional Court could not have himself reversed the finding of fact which was recorded which was not a jurisdictional fact. The question whether the building which was admittedly constructed by the opposite party No. 1 was a residential building or not, was not a jurisdictional fact and as such the revisional Court did act illegally and with material irregularity in the exercise of its jurisdiction in reversing this fact which it could not do. In view of the above, I am of the opinion that the submission made by the learned counsel is well founded. In the result, the petition is allowed. The revisional order dated 14-2-1979 is quashed and that of the Rent Control and Eviction Officer dated 16-11-1978 is restored. Learned counsel for the respondent prayed for time to vacate the premises. This prayer is justified. In my opinion, three months are enough for the purpose. Opposite party No. 1 is granted time to vacate the premises within a period of three months from today and shall hand over vacant possession of the premises immediately after expiry of three months. Parties are directed to bear their own costs. .