Kanti Khare v. Kali Prasad Asthana — 1981 DIGILAW 400 (ALL)

ORDER S.J. Hyder, J. - The petitioner feels aggrieved by the order of the Rent Control and Eviction Officer dated 28-11-1977 and the order of the III Additional District Judge, Allahabad, dated May 23, 1978. She has accordingly filed this writ petition for the issue of a writ of certiorari quashing the said orders. She has also prayed that this court may issue a writ of mandamus directing the Rent Control and Eviction Officer to allot the accommodation in dispute in favour of the petitioner. 2. The writ petition has been mainly contested on behalf of Dr. (Smt.) D. Kaur who is arrayed as respondent No. 2. No doubt a counter - affidavit has also been filed by Sri Kali Prasad Asthane who is III Additional District Judge at Allahabad on May 23, 1978. 3. Dr. (Smt.) D. Kaur was posted as Medical Officer In charge, Dufferin Hospital, Allahabad in the year 1954. On an application made by her, the then Rent Control and Eviction Officer allotted the accommodation in dispute bearing Municipal No. 17 Kanpur Road, in her favour. The owner of the said accommodation is the Methodist Church, Allahabad and has been impleaded as respondent No. 4 to this writ petition. Dr. (Smt.) D. Kaur resigned from Government Service in or about the year 1955 and she began to reside in the above said accommodation along with her husband Sri Kumar. There is no serious dispute between the parties in so far as these facts are concerned. 4. Petitioner alleges that some time before the dispute between the parties Dr. (Smt.) D. Kaur constructed a residential building for herself at Hastings Road (Nyaya Marg) known as 'Purab Pashchim'. She alleges that in consequence of the construction of the said building by Dr. (Smt.) D. Kaur, the accommodation in dispute, 17, Kanpur Road, will be deemed to have fallen vacant. In support of her contention. she relies on sub-section (3) of section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as 'the Act'. (Smt.) D. Kaur, the accommodation in dispute, 17, Kanpur Road, will be deemed to have fallen vacant. In support of her contention. she relies on sub-section (3) of section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as 'the Act'. Sub-section (3) of section 12 of the Act reads ; "In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Provided if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Explanation :- For the purpose of this sub-section :- (a) A person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purpose as a tenant, allottee or licensee ; (b) The expression "any member of family," in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant." 5. The Petitioner further alleges that on May 4, 1977, she moved an application for the allotment of the disputed house No. 17, Kanpur Road because she genuinely needed the accommodation for her personal use. It is stated by her that the application moved by her was referred for enquiry to the Rent Control Inspector who made an ex-parte inspection and submitted his report on July 29, 1977. The Rent Control and Eviction Officer, without hearing the parties and without giving the petitioner an opportunity to rebut the report of the Rent Control Inspector, dismissed her application by an order dated July 30, 1977, when the petitioner came to know of the said order, she moved a second application supported by an affidavit stating the correct facts therein. This application was again made over to the Rent Control Inspector for report. This application was again made over to the Rent Control Inspector for report. After hearing the parties, the Rent Control and Eviction Officer dismissed the petitioner's application on the ground that it was barred by the principles of res judicata. It may be stated that another application for the allotment of the disputed accommodation had also been made by the petitioner's husband Sri P.B.L. Khare, that application was also rejected by means of the order dated 28-11-1977. The petitioner goes on to say that against the order of the Rent Control and Eviction Officer dated November 28, 1977, two revisions were preferred before the District Judge, Allahabad. One of these revisions was on behalf of the petitioner herself and the order on behalf of her husband Sri P.B.L. Khara. The two revisions were transferred for disposal to the III Additional District Judge, Sri Kali Prasad Asthana. He dismissed both the revisions by his impugned order dated May 23, 1978. 6. The III Additional District Judge, in his impugned order, noted the fact it was urged on behalf of the petitioner that the application was not barred by the principle for res judicata and that the said contention was opposed by the counsel appearing on behalf of Dr. (Smt.) D. Kaur. He however, did not decide the said controversy. He went into the merits of the case and recorded a finding that the accommodation in dispute had not fallen vacant and, as such, it was not available for allotment. He observed that a revisional court is not bound to interfere with the order of an inferior Tribunal except in aid of justice, Since he was of the view that on merits, the petitioner had no stable case, no useful purpose will be served by sending back the case for a fresh decision to the Rent Control and Eviction Officer. 7. Learned Counsel appearing for the petitioner has contended that the Rent Control and Eviction Officer was in error in holding chat the petitioner's application was barred by the principle of res judicata. He also argued that the III Additional District Judge had no jurisdiction to go into the merits of the case and to record findings on disputed questions of fact while hearing the revision. The learned counsel appearing for Dr. (Smt.) D. Kaur has, on the other hand, opposed the contention advanced on behalf of the petitioner. 8. He also argued that the III Additional District Judge had no jurisdiction to go into the merits of the case and to record findings on disputed questions of fact while hearing the revision. The learned counsel appearing for Dr. (Smt.) D. Kaur has, on the other hand, opposed the contention advanced on behalf of the petitioner. 8. As already stated above, the Rent Control Inspector made a report on the application moved by the petitioner on July 29, 1977. The order under section 16(a) of the Act rejecting the application of the petitioner was passed by the Rent Control and Eviction Officer on July 30, 1977. The Inspection Note of the Rent Control Inspector dated July 29, 1977 indicates that at the time of the inspection, Dr. (Smt) D. Kaur and K. Kumar along with other witnesses of the locally were present. The Inspector does not indicate in his report nor it has been stated by Dr. (Smt.) D. Kaur in her counter - affidavit that any intimation of the date and time fixed for inspection was given to the petitioner or her counsel. There is nothing on the record from which it can be concluded that the landlord of the accommodation was informed about the inspection by the Rent Control Inspector or that any one on its behalf was present when the Rent Control Inspector visited the accommodation in dispute for the purpose of local inspection. 9. In this connection, sub-rule (2) of Rule 8 framed under the Act is relevant and is quoted below : "The Inspector shall inspect the building, so far ss possible, in the presence of the landlord and of the tenant or any other occupant and submit his report after eliciting the facts wherever practicable by at least two respectable persons residing in the locality, and the conclusion in the report of the Inspector, shall be pasted on the notice board of the office of the District Magistrate for the information of the general public and an order of allotment may be passed not before the expiration of three days from the date of such pasting and if in the meantime any objection is received not before the disposal of such objection." 10. The Rule quoted above makes it obligatory on the Rent Control Inspector to make the inspection amongst others in the presence of the landlord. The Rule quoted above makes it obligatory on the Rent Control Inspector to make the inspection amongst others in the presence of the landlord. The result of the inspection has to be pasted on a notice board for a period of at least three days for the information of the general public. An order of allotment can only be passed after the expiry of the said period of if an objection is filed, after the disposal of the objection. The right to file an objection against the report is not limited to the landlord or the tenant, as the case may be. Such an objection can also be filed by any member of the public for whose benefit the purport of the Inspection Report has to be posted on the notice board. The provisions of the sub-rule quoted above are mandatory. 11. The Inspector's report should not be ex-parte unless a party fails to attend at the time of the inspection in spite of sufficient information. This is necessary because the report submitted by the Inspector can be made a basis for recording findings by the District Magistrate or the revisional authority. 12. In the instant case, it was not only the Rent Control Inspector who was at fault by not giving notice of the time and date of the inspection to the landlord and to the petitioner, the Rent Control and Eviction Officer himself committed a breach of the said Rule by not posting the purport of the Inspection Report on the notice board as required by sub-rule (2) of Rule 8 framed under the Act. Learned counsel appearing for Dr. (Smt) D. Kaur has urged before me that it was not necessary for the Rent Control Inspector to give any intimation about the time and date of the inspection to the petitioner. He submitted that such notice is not necessary to be given even in the case of a tenant. In support of this contention, learned counsel has relied on the Supreme Court decision in the case of M/s. Trilok Singh and Company v. District Magistrate Lucknow, AIR 1976 Supreme Court 1988. He submitted that such notice is not necessary to be given even in the case of a tenant. In support of this contention, learned counsel has relied on the Supreme Court decision in the case of M/s. Trilok Singh and Company v. District Magistrate Lucknow, AIR 1976 Supreme Court 1988. In that case, the accommodation in dispute was in possession of M/s. Trilok Singh and Company and on a perusal of the report of the Rent Control Inspector, the Rent Control and Eviction Officer passed an order direction that the vacancy of the accommodation may be notified. Aggrieved by the said order, the petitioner filed a writ petition alleging that it has been passed in violation of the principle of natural justice and without giving a hearing to the petitioner. The writ petition was dismissed by a Division Bench of this court with a brief speaking order. This court held that the writ petition was premature and the proper remedy for the petitioners was to approach the Rent Control and Eviction Officer under section 16(5)(a) of the Act for the review of the order directing the vacancy to be notified. The view taken by the Division Bench of this court was affirmed by the Supreme Court which held that the Act. contemplated successive opportunities being afforded to the persons whose interest was likely to be affected by an order passed by the District Magistrate under section 12(4) of the Act. After a review of the relevant provisions of the Act, Chandrachud, J. (Now C.J.) observed : "The Act thus contemplates successive opportunities being afforded to the persons whose interest are likely to be affected by any order passed by the District Magistrate. Putting it briefly an order notifying a vacancy can be objected to and the objection has to be decided after considering the evidence that the objector or any other person concerned may adduce. Secondly, if an order of allotment or release is passed under section 16 following upon a notification of vacancy, the aggrieved person can file a review application. Thirdly as against an order passed under section 16, there is a right of appeal under section 18." 13. The decision in the case of Trilok Singh and Company (supra) was rendered on 23rd of March, 1976. Since then the Act has been amended by U.P. Act 28 of 1976. Thirdly as against an order passed under section 16, there is a right of appeal under section 18." 13. The decision in the case of Trilok Singh and Company (supra) was rendered on 23rd of March, 1976. Since then the Act has been amended by U.P. Act 28 of 1976. At the end of sub-section (1) of section 16 the following proviso has been inserted in the principal Act by U.P. Act 28 of 1976 : "Provided that in the case of a vacancy referred to in subsection (4) of section 12, the District Magistrate shall give an opportunity to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case before making an order under clause (a)." This amendment, therefore nullified the effect of the decision in the case of Trilok Singh and Company (supra). 14. The question which, however, remains to be answered is whether the petitioner who was neither a tenant in relation to the building in dispute nor its landlord was entitled to be informed of the date and time of the place of inspection. There is nothing stated in express terms in section 16 of the Act or Rule 8 of the Rules framed thereunder on the basis of which the petitioner can claim as a matter of right that she should have been given an information. Nevertheless sub-rule (2) of Rule 8 extracted above specifically enjoins that the report of the Rent Control Inspector shall be notified on the notice Board for three days for the information of the general Public. Section 18 of the Act states that any person aggrieved by an order under section 16 or section 19 may prefer a revision before the District Judge. The right of filing a revision under section 18 has been stated in broad general terms and is not confined to a landlord or tenant, as the case may be. The proceedings in the instant case commenced on an application made by the petitioner stating that the building occupied by Dr. (Smt.) D. Kaur should be deemed to have fallen vacant within the meaning of section 12(4) of the Act. The proceedings in the instant case commenced on an application made by the petitioner stating that the building occupied by Dr. (Smt.) D. Kaur should be deemed to have fallen vacant within the meaning of section 12(4) of the Act. It was on the basis of this application that the Rent Control Inspector made a local inspection on July 29, 1977 and the Rent Control and Eviction Officer passed the impugned order dated 30th of July, 1917. The petitioner made another application which was dismissed on the ground that it was barred by res judicata. She subsequently preferred a revision against the said order which has been disposed of by the III Additional District Judge and the order passed by the said judge is also impugned in the writ petition. It was not urged before him or before this court that the petitioner was not entitled to maintain a Revision under section 18 of the Act against the decision passed on her second application by the Rent Control and Eviction Officer. 15. The result of the above discussion is that the application made by the petitioner on 4th of January, 1977 stating that the accommodation in dispute should be deemed to be vacant and may be allotted in her favour gave rise to a lis to which the petitioner and Dr. (Smt.) D. Kaur were parties. Even if there is no statutory obligation, the rule of audi alteram partem made it obligatory on the Rent Control Inspector and also on the Rent Control and Eviction Officer to give an opportunity to the petitioner to substantiate her case as stated in the petition. S.A. do smith, in his treaties on "Judicial Review of Administrative Action, has thus stated the position : "Natural Justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position : (a) To make representations on their own behalf ; or (b) To appear at a hearing or enquiry (if one is to be hold) ; and (c) Effectively to promote their own case and to answer the case (if any) they have to meet." 16. As already stated, the petitioner had no opportunity to present her case either before the Rent Control Inspector or before the Rent Control and Eviction Officer. As already stated, the petitioner had no opportunity to present her case either before the Rent Control Inspector or before the Rent Control and Eviction Officer. In these circumstances, it is difficult to hold that the order dated July 30, 1977 operated so res judicata between the parties. Res judicata, "said Lord Ramilly, in Jakins v. Robertson, 1877 L.R. (1) M.L. 117 : "By its very word means a matter upon which the court has exercised its judicial mind and has come to the conclusion that one side is right and has pronounced a decision accordingly. In my opinion, res judicata signifies that the court has, after argument and consideration, come to a decision on a contested matter. In other words, in order to support a plea of res judicata, it is not enough that the parties are the same and that the same matter is in issue ; it must also be shown that the matter was heard and finally decided." 17. The view which I am taking on this point also finds support from a Division Bench decision of this court in Dr. Charan Singh v. District Bareilly, 1979 All. Civil Journal 212. 18. For the reasons stated above, I am of the opinion that the order of the Rent Control and Eviction Officer passed on July 30, 1977 did not operate as res judicata in the proceedings arising out of the petitioner's second application dated August 29, 1977. The order of the Rent Control and Eviction Officer dated November 28, 1977, therefore, deserves to be quashed. 19. Now, as to the order of the III Additional District Judge dated 20.3.1978, it has been contended on behalf of the petitioner that the revisional court has exceeded its jurisdiction in recording findings on questions of fact. It was urged that after the amendment of section 18 of the Act by the U.P. Act 28 of 1976 is identical in its scope and ambit with Section 115 of the Code of Civil Procedure . An order passed under Section 16 or 19 of the Act could be revised only on the ground that it suffers from an error of Jurisdiction and that it was not open to the III Additional District Judge to go into the merits of the controversy and record its own findings on question of fact. Learned counsel appearing for Dr. An order passed under Section 16 or 19 of the Act could be revised only on the ground that it suffers from an error of Jurisdiction and that it was not open to the III Additional District Judge to go into the merits of the controversy and record its own findings on question of fact. Learned counsel appearing for Dr. (Smt.) D. Kaur, on the other band, submitted that a revisional court is under no duty to interfere with the order of a subordinate court or Tribunal except in aid of justice. He submitted that the III Additional District Judge, after a careful assessment of evidence on the record came to the conclusion that the building or accommodation in dispute was not a residential building and, as such, sub-section (4) of Section 12 of the Act was not attracted when a new building known as 'Purab Pachchim' is alleged to have been constructed by Dr. (Smt.) D. Kaur. Learned counsel for the contesting respondent went a step further and submitted that this court should not interfere in the exercise of its prerogative jurisdiction under Article 226 of the Constitution just and proper decision has been rendered by an inferior Tribunal, even if such decision suffers from any error of law or jurisdiction. 20. Exercise of appellate. jurisdiction presupposes that the court of appeal is superior to the court, the decision of which is appealed against. An appeal, unless otherwise provided, carries with it a right of rehearing on questions of law as well as on questions of fact. When an appeal is preferred, the cause is removed from the inferior court to the superior court for the purpose of testing the soundness of the decision of the inferior court. An appeal is not a fresh suit but is only a continuation of the original proceedings and is a stage in the suit itself. Excepting those orders which have been made expressly appealable, an appeal always lies at the conclusion of the hearing. It is well settled that revisional jurisdiction is only a fact of the appellate jurisdiction and for that reason it is at so vested in a superior court. Like an appeal, revision also is a creature of the statute and a court of revision can only exercise such powers which are expressly conferred upon it by the statute. 21. It is well settled that revisional jurisdiction is only a fact of the appellate jurisdiction and for that reason it is at so vested in a superior court. Like an appeal, revision also is a creature of the statute and a court of revision can only exercise such powers which are expressly conferred upon it by the statute. 21. Like Section 115 of the Code of Civil Procedure , a revision under Section 18 of the Act lies only on a ground of an error in the exercise of jurisdiction. Section 18 of the Act is analogous to Section 115 of the Code of Civil Procedure and is in pari materia with it. 22. True it is that the exercise of revisional power is entirely discretionary. When adequate justice has been done between the parties to a litigation by an order which may have been passed irregularly or even improperly, the revisional court is not bound to interfere unless injustice and hardship would result from a failure to do so. The discretion vested in the court exercising revisional powers is, however, judicial discretion and has to be exercised within the ambit of Section 18 of the Act or Section 115 of the Code of Civil Procedure , as the case may be. 23. As already pointed out above, the ambit of the powers of the revisional court is limited in a case falling under Section 18 of the Act or Section 115 of the Code of Civil Procedure . In the case of Bal Krishna Udayar v. Vasudeva Ayyar, AIR 1917 P.C. 71 , while dealing with the scope of Section 115 of the Code of Civil Procedure , the Privy Council said : "It will be observed that the Section applies to jurisdiction alone, the irregular exercise or non-exercise of it or an illegal assumption of it. This section is not directed against conclusions of law or fact in which question of jurisdiction is not involved." The Principle stated above has been consistently followed by the Privy Council, the Supreme Court and also by the different High Courts in India and is beyond the pale of doubt. 24. The question then is whether a revisional court can enter into questions of law and fact only to find out whether adequate justice has been done to the parties ? The answer to this question can be in the negative. 24. The question then is whether a revisional court can enter into questions of law and fact only to find out whether adequate justice has been done to the parties ? The answer to this question can be in the negative. To bold otherwise would obliterate the distinction between the exercise of appellate jurisdiction and the exercise of revisional jurisdiction. If the statute prohibits the revisional court from going into questions of fact and law while exercising its power as such revisional court, it is not permissible for it to circumvent the har on the plea that in doing so, it is only trying to find out whether adequate justice had been done to the parties by the order impugned before it. The question of exercise of discretion in deciding a revision arises only in those cases where the question of justice inter parties is evident on the record. It is trite to say that what cannot be done directly can be allowed to be accomplished in an indirect manner. 25. It was faintly urged on behalf of Dr. (Smt.) D. Kaur that the case was argued on facts also before the III Additional District Judge and he was, therefore, justified in recording a finding in facts. A similar question arose before the Supreme court in the case of Khusru S. Gnadhi v. N.A. Gazder, AIR 1970 Supreme Court 1465. In that case, besides disputed questions of fact relating to a compromise, one of the disputes between the parties was whether the court fee paid was insufficient. The question relating to court fee was decided against the plaintiff of the suit and he was given an option either to make good the deficiency in court fee or to amend his plaint. The plaintiff applied for an amendment of the plaint and the amendment application was allowed. Against the order allowing the amendment application, the defendants preferred a revision before the High Court. A Single Judge of this court, while bearing the revisions against the order allowing the amendment of the plaint, recorded findings on one of the issues relating to the disputed compromise. Against that order, the plaintiff preferred an appeal by special leave before the Supreme Court. Sikri, J. (peaking for the court, accepted the contention of the plaintiff that the High Court had no jurisdiction to pronounce about the effect of the disputed compromise while hearing the revision. Against that order, the plaintiff preferred an appeal by special leave before the Supreme Court. Sikri, J. (peaking for the court, accepted the contention of the plaintiff that the High Court had no jurisdiction to pronounce about the effect of the disputed compromise while hearing the revision. The learned Judge was of the view that the controversy in the revision was a limited one and was confined to the question as to whether the trial court committed an error of Jurisdiction in allowing the amendment of the plaint. In the view of the Supreme Court, the High Court travelled outside the scope of its jurisdiction in deciding one of the issues arising in the suit itself. The Supreme Court was further of the opinion that the fact that the learned counsel appearing for the parties in that case addressed arguments before the High Court about one of the issues in the suit itself was wholly irrelevant since the power of the High Court was strictly limited in its scope and could not be enlarged even by the consent of the parties. 26. The rationale of the case of Khsru S. Gandhi (supra) applies with full force to the facts of this case. For that reason also, the III Additional District Judge could not decide the facts arising in the case between the parties while exercising revisional powers under Section 18 of the Act. 27. What has been stated above was sufficient to dispose of this writ petition. I have already held that the order of the Rent Control and Eviction Officer dated November 28, 1977 was invalid. The discussion contained in the paragraphs immediately preceding also shows that the order of the III Additional District Judge, Allahabad, dated May 23, 1978 is also infirm and was beyond his jurisdiction. Nevertheless there is an important question of law which still remains to be disposed of. 28. Learned counsel for the Dr. (Smt.) D. Kaur relied on the case of Dr. Bashir Uddin v. District Judges, 1978 (1) RCJ 199. In that case, a Division Bench of this court held : "It is not difficult to understand as to what a residential building is. These words can have no relation to the nature of the structure because human need is capable of converting any building for the purpose of residence. Bashir Uddin v. District Judges, 1978 (1) RCJ 199. In that case, a Division Bench of this court held : "It is not difficult to understand as to what a residential building is. These words can have no relation to the nature of the structure because human need is capable of converting any building for the purpose of residence. A residential building must consequently be a building which at the moment is being used primarily for the purpose of residence." 29. On the basis of the above decision, the thrust of the argument of the learned counsel was that irrespective of the nature of the building in dispute, if the same was being used as a clinic, it should be characterised as a non-residential building and there was no question of sub-section (3) of Section 12 of the Act applying to the said building. He referred me to the Annexures filed along with the writ petition, the counter - affidavit and the rejoinder - affidavit to support his submission. I have given serious thought to the reasoning advanced before me. I am, however, of the view that this court, while exercising jurisdiction under Article 226 of the Constitution, should not ordinarily enter into disputed questions of fact. It would also not be proper for this court, to hold that the building in dispute should be deemed to be vacant or Should be allotted to the petitioner. Both these functions have been squarely assigned by the statute to the District Magistrate or, in a case where he has delegated his powers to a subordinate popularity known as the Rent Control and Eviction Officer, by the said Officer. I would, therefore, have been content by quashing the impugned orders of the Rent Control and Eviction Officer and the III Additional District Judge and would have refrained from expressing any opinion on the merits of the case. However a closer look at the submission urged on behalf of Dr. (Smt.) D. Kaur reveals that matters of fact apart, the question as to what is a residential building raises a pure question of law and merits decision by this court. However a closer look at the submission urged on behalf of Dr. (Smt.) D. Kaur reveals that matters of fact apart, the question as to what is a residential building raises a pure question of law and merits decision by this court. The guidelines Laid down by this court on the legal aspect will facilitate a decision by the Rent Control and Eviction Officer and shall save the parties from the trouble of, undergoing a fresh round of litigation on this matter which arises in the case. The gulf which separates the right from the remedy should be bridged as far as possible and the sooner a litigant is made to realise whether he is entitled to a remedy or not, the better it is for our judicial system. This consideration has tempted me to lay down guidelines for distinguishing a residential from a non-residential building because on that question will depend the fate of the dispute between the parties. 30. It is a matter of common knowledge, judicial notice of which can be taken, that the population of the country has been increasing in astronomical proportions. The socio-economic changes which have taken place after 1947 have contributed to an enormous increase in the urban population. For reasons with which this court is not concerned, housing development in cities has not kept with the increase in population. 31. The legislature took cognizance of the situation and enacted laws to deal with the housing problems. In the first instance, the State Legislature passed the U.P. (Temporary) Control of Rent and Eviction Act (Act 3 of 1947). The life of this Act was extended from time to time. Experience brought to the fore numerous defects in the enactment which had to be remedied. In consequence the said Act was repealed and was replaced by the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act (Act 13 of 1972), which has already been preferred to in this judgment as the Act. 32. The preamble of the Act shows that the object of the enactment is to provide in the interest of the general public for the regulation of letting, rent and eviction of the tenant from certain classes of buildings situated in Urban Areas and for matters connected therewith. 32. The preamble of the Act shows that the object of the enactment is to provide in the interest of the general public for the regulation of letting, rent and eviction of the tenant from certain classes of buildings situated in Urban Areas and for matters connected therewith. The Act is sub-divided into seven Chapters which, inter alia, control the rent payable and regulation letting of accommodation and provide restrictions on the right of the landlords to evict sitting tenants from the accommodation which is a subject matter of their tenancy. 33. At this stage, it would be useful to refer to part IV of the Constitution which deals with the Directive Principles of State Policy. Article 39, in so far as it is relevant for this case, reads thus. "39. Certain Principles of. policy to be followed by the state. The State Shall, in particular, direct its policy towards securing :- (a) -------------- (b) That the ownership and control of the material resources of the community are so distributed as best to subserve the common good ; (c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment." 34. True it is that Article 37 lays down that the provisions contained in Part 1V of the Constitution shall not be enforceable by any court. At the same time, it emphasises that the principle therein Laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making the laws. Article 36 which is the first Article under Part IV states that in this part, unless the context otherwise requires the term State" has the same meaning as is given to the term in part III which deals with fundamental rights. It, therefore, follows that although the provisions contained in Part IV are not Judicable the court cannot loose sight of the Principles contained therein. Moreover, the directive principles are not merely pious wishes which may be disregarded with impunity. They are important and integral part of the Constitution which is the fundamental law of the land. It, therefore, follows that although the provisions contained in Part IV are not Judicable the court cannot loose sight of the Principles contained therein. Moreover, the directive principles are not merely pious wishes which may be disregarded with impunity. They are important and integral part of the Constitution which is the fundamental law of the land. It would, therefore, he proper for the courts, while interpreting statutory provisions, to keep the said principles in view and to place such constructions on its terms, if possible, which would harmonise with the provisions of law contained in part IV of the Constitution. 35. Broadly speaking, a person may have a right to have a residential accommodation on rent and at the same time to build any number of such accommodations which he may let out on rent. In the same way, a landlord may be entitled to charge any amount of rent from his tenant and to enhance it from time to time. He may also possess the freedom to evict his tenant at any time according to his sweet will. The freedoms enumerated above may be dear to a votary of the doctrine of Lalssez faire. It is nevertheless to be remembered that freedom or liberty is not an obstruction. It does not exist in a social vacuum. Rights and freedom can be only within a concrete social milieu. Our founding fathers in their wisdom have recognised this principle which cannot be reasonably disputed. 36. It is precisely for this reason that the Act has imposed restrictions on the freedom of the landlord to evict the tenant at his sweet will or to enhance the rent payable by him. The same principle of harmonising individual freedom with common good is enshrined in sub-Section (3) of the Section 12 of the Act. If a tenant who is in occupation of a residential accommodation builds or otherwise acquires an accommodation of a similar kind within the same Municipal area, the accommodation occupied by him as a tenant must necessarily be deemed to be vacant. This is a necessary concomitant of an activist policy to prevalent affluent becoming more affluent and the deprived getting more deprived. With the above background. I revert back to the distinction between a residential and a non-residential accommodation. 37. The case of Dr. Bashir Uddin (Supra) is distinguishable. This is a necessary concomitant of an activist policy to prevalent affluent becoming more affluent and the deprived getting more deprived. With the above background. I revert back to the distinction between a residential and a non-residential accommodation. 37. The case of Dr. Bashir Uddin (Supra) is distinguishable. In that case, the Bench of this court was concerned with a residential accommodation which was alleged by the other side to be non-residential. Keeping in view the conditions prevailing in this country, this court took the view that even a non-residential accommodation could be treated as a residential accommodation if it was actually used for residential purpose. With respect to the learned judges who decided that case, it may be said that the view taken by them is plausible. Nevertheless, the Supreme Court, in the case of Busching Schimitz Private Ltd. v. P.T. Menghani, AIR 1977 Supreme Court 1569 observed : "Use or purpose of the letting is no conclusive tests. Likewise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and Bazars cannot make them residential premises. That is a case of reductio ad absurdum." In the case just referred to, their Lordships categorically rejected the user or purpose test for determination of the question whether a particular building is a residential building or a non-residential building. A little above the passage extracted from the case of Suhmitz, the Supreme Court said : "Residential premises are not only those which are let out for residential purposes as the appellant would have it. Nor, do they cover all kinds of structures where humans may manage to dwell. If a beautiful bunglow were let out to a businessman to run a showroom or to a meditation group or music society for meditational or musical uses, it remains none be less a residential accommodation. Otherwise, premises may one day be residential, another day commercial and, on yet a later day, religious." 38. It would be a travesty of the legislative intent if a litigant is allowed to subvert the real purpose of the statute by clever contrivance. In answering the question as to whether a particular building is a residential or non-residential accommodation, what is to be kept in view in the suitability of the structure for residence or business or commercial use. In answering the question as to whether a particular building is a residential or non-residential accommodation, what is to be kept in view in the suitability of the structure for residence or business or commercial use. No hard and fast rule can be laid down and it is for the court or tribunal of fact to ultimately determine after taking into account the nature of the structure to come to a conclusion as to whether a particular building can be classified as residential or non-residential. Broadly speaking if a building is suitable for residential purpose, no amount of ingenuity should be allowed to defeat, the legislative intent behind Section 12(3) of the Act. In the case of Busching Schimitz (supra), the Supreme Court observed : "Residential suit ability being the basic consideration, this building fills the bill. Nothing said in the affidavit-in-opposition puts it out of the pale of residential accommodation. A building which reasonably accommodates a residential user is a residential accommodation nothing less, nothing else." 39. As already stated, I have outlines the legal principles which should be taken into account by the court of fact in coming to the conclusion whether the building occupied by Dr. (Smt.) D. Kaur is a residential building or not. 40. A number of questions of fact have been raised on behalf of the parties in order to sustain their rival claims as to, whether the building occupied by Dr. (Smt.) D. Kaur as a tenant is a residential building or not and other matters germane to the controversy between the parties. It has already been pointed out earlier that this court cannot determine the disputed questions of fact in the exercise of its jurisdiction under Article 226 of the Constitution. It cannot also pass an order of allotment which is a function exclusively assigned to the District Magistrate or his nominee. In view of the above discussion, this writ petition deserves to succeed and the case will go back to the Rent Control and Eviction Officer for a fresh determination. 41. The result is that the writ petition succeeds and is hereby allowed. The orders of the Rent Control and Eviction Officer and the III Additional District Judge, Allahabad dated 28.11.1977 and 23.5.1978 are hereby quashed. 41. The result is that the writ petition succeeds and is hereby allowed. The orders of the Rent Control and Eviction Officer and the III Additional District Judge, Allahabad dated 28.11.1977 and 23.5.1978 are hereby quashed. The case is remanded to the Rent Control and Eviction Officer for fresh decision in accordance with law and the observations made above in this judgment. The petitioner is entitled to her costs.