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1978 DIGILAW 487 (ALL)

Raghunandan Lal v. District Judge, Bulandshahr

1978-04-28

S.D.AGARWALA

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JUDGMENT S. D. Agarwala, J. 1. THIS is a writ petition under Article 226 of the Constitution of India challenging the order of the District Judge, Bulandshahr dated 27th Sept. 1975 dismissing the appeal of the petitioners against an order passed by the Rent Control and Eviction Officer under Sec. 16 of the U. P. Act No. 13 of 1972. 2. THE counsel for the petitioners has urged before me that the Commissioner's report dated 15-7-1975 has not been considered by the District Judge. This was material piece of evidence and as such a finding recorded by the Commissioner is vitiated in law. The second contention raised by the counsel for the petitioners is that the District Judge has not considered the bona fide need of the landlord before releasing the property in his favour. 3. THE District Judge after considering the evidence on record has recorded a finding of fact that the petitioners had closed down their business of the shop in question and had removed their goods from the shop and the same was lying vacant, and as such the Rent Control and Eviction Officer was right in treating the shop as vacant in view of Section 12 of the Act. 4. IT is, no doubt, correct that the exparte commission was issued on the application of the petitioners by the District Judge. The Commissioner had submitted his report on 16th of July 1975. I have examined the report of the commissioner which is Annexure 4 to the writ petition. The report is not relevant for determination as to whether the petitioners had vacated the shop or not. In this report certain facts have been stated in regard to the shops other than the one occupied by the petitioners, In the circumstances it was not material document which was necessarily to be considered by the District Judge before recording a finding in regard to the vacancy. Section 12 of the Act clearly lays down that a building will be deemed to be vacant if the tenant has substantially removed its effects from here. The District Judge has recorded a finding that the petitioners had closed their business. They had started carrying on business in Dubai and they had removed their goods from the shop and the same was lying vacant. The District Judge has recorded a finding that the petitioners had closed their business. They had started carrying on business in Dubai and they had removed their goods from the shop and the same was lying vacant. This is a finding of fact and in view of this finding, the view taken by the lower appellate court that there was a deemed vacancy is correct. 5. IN regard to the second contention raised by the counsel for the petitioners the Prescribed Authority has considered in detail the bona fide need of the landlord and it was thereafter the property was released in favour of the respondent No. 3. The District Judge in appeal confirmed the finding of the Prescribed Authority. Since the finding was of confirmation, it was not necessary for the District Judge to reconsider the entire evidence again. It may further be stated that so far as the release is concerned, that is a matter between the District Magistrate and the landlord and the petitioners had no right to file objection under sub-clause (4) of Rule 13 of the Rules framed under the Act. 6. IN view of the matter the finding recorded by the District Judge in regard to the release does not suffer from any legal infirmity. It was then contended by the learned counsel for the petitioners that Rule 13, sub-clause (4) was ultravires Sec. 16 of the Act. I do not see any force in this contention. Section 16 only lays down that the District Magistrate may by order release the whole or any part of such building in favour of the landlord. Section 41 of the Act empowers the State Government to make rules to carry out the purposes of the Act Rule 13, sub-clause (4) does not lay down anything contrary to Section 16 of the Act; Once the tenant vacates the property then the property reverts to the landlord and thereafter the question as to whether the property should be released or not is a question between the District Magistrate and the landlord. Even if this clause was not there, then too, in my opinion, the out going tenant or the prospective allottee cannot have a right to object to the release of the accommodation in favour of the landlord. 7. IN view of the above Rule 13 sub-clause (4) is not ultravires Section 16 of the Act. 8. Even if this clause was not there, then too, in my opinion, the out going tenant or the prospective allottee cannot have a right to object to the release of the accommodation in favour of the landlord. 7. IN view of the above Rule 13 sub-clause (4) is not ultravires Section 16 of the Act. 8. IN the result there is no force in the writ petition. The petition is accordingly dismissed but in the circumstances of the case the parties are directed to bear their own costs. Petition dismissed.