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2008 DIGILAW 992 (ALL)

DURGA PRASAD BANSAL v. VIMLA DEVI

2008-05-02

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) AN application under section 21 (1) (a) of the U. P. Urban buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) was filed by the landlord on 23rd October, 2007 for eviction of the tenant from the shop in dispute on the ground that the landlord bona fide required the shop for setting up his son in business. A reply to the aforesaid application was filed by the tenant mentioning therein that the landlord had available an alternative shop that had been vacated by Mangat Ram Sharma on 8th October, 2007 and, therefore, he could establish his son in business from that shop. It was also stated that another shop of which Thakur Jamuna mohan Ji Madan Gopal was the landlord which was said to be available with the tenant was not a shop but a small Kothari and could not be utilized for the purposes of doing business. This fact was denied by the landlord and even an affidavit of Mangat Ram Sharma was filed to show that the room vacated by him was in a dilapidated condition and could not be utilized for the purposes of a shop. ( 2 ) THE tenant then filed an application for issuance of a commission for inspection of the shop vacated by Mangat Ram Sharma and for inspection of the other shop said to available with the tenant. This application was rejected by the Prescribed Authority on the ground that tenant was only delaying the proceedings of the case. ( 3 ) I have heard Sri Rahul Sahai learned Counsel for the petitioner and sri Ankur Goel learned Counsel appearing for the respondent-landlord and have perused the material available on record. ( 4 ) LEARNED Counsel for the petitioner submitted that the Commission was required to determine whether the shop vacated by Mangat Ram Sharma was in a proper condition as alleged by the tenant or it was in a dilapidated condition as alleged by the landlord. Likewise, the inspection of the Kothari in the possession of the tenant was also necessary. He, therefore, submitted that the prescribed Authority committed an illegality in rejecting the application. Likewise, the inspection of the Kothari in the possession of the tenant was also necessary. He, therefore, submitted that the prescribed Authority committed an illegality in rejecting the application. ( 5 ) LEARNED Counsel appearing for the respondents has placed reliance upon the judgment of this Court in Writ Petition No. 61889 of 2007 Hari sliankar v. Subhash Chandra decided on 17th December, 2007 and has contended that the Commission should not be issued for the purpose for collecting evidence. A perusal of the judgment indicates that the Court has drawn certain exceptions and has observed that a Commission for local investigation can be issued to ascertain specific facts such as investigation for identification of the property or the physical condition of the structure or for ascertaining the market value of the property as these facts cannot be proved by documentary evidence. ( 6 ) IN the present case the plysical condition of the structure has to be determined which can be done by issuance of the Commission and not by affidavit. In such circumstances, the order passed by the Prescribed Authority rejecting the application for issuance of Commission cannot be sustained and is set aside. ( 7 ) SRI Ankur Goel learned Counsel for the respondent is, however, justified in asserting that a time bound direction should be given for issuance of commission and the application filed by the landlord under section 21 (1) (a) of the Act may be decided expeditiously. ( 8 ) THE writ petition, therefore, succeeds and is allowed. The order dated 4th April, 2008 passed by the Prescribed Authority is set aside and the application for issuance of the Commission is allowed. The Prescribed Authority shall, however, ensure that the report of the Commission is submitted within two weeks from the date a certified copy of the order is filed either of the parties before the Prescribed Authority. The Prescribed Authority shall also endeavor to decide application filed by the landlord under section 21 (1) (a) of the Act expeditiously, preferably within a period of three months from the date of submission of the report. Petition Allowed. .