JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—Heard Sri G.L. Tripathi, Advocate appearing for tenant/petitioner and Sri P.N. Khare, Advocate, appearing for landlord/respondents. 2. The order impugned in the instant writ petition is dated 17.9.1998 declaring vacancy by Rent Control and Eviction Officer/ Additional City Magistrate 1st, Kanpur Nagar, in respect of accommodation of premises No. 106/179 Gandhi Nagar, Kanpur Nagar (hereinafter referred to as the disputed accommodation). Vacancy declared was in respect of one room, one store, latrine, bathroom, kitchen and a small open area situated on the first floor. 3. Assertion made in the writ petition on behalf of the tenant is that Chandrika Prasad was the erstwhile owner/landlord of premise No. 106/179 which was let out on monthly rent @ of Rs. 225/- since before July, 1978. It is admitted by parties that rate of rent is Rs. 275/- per month. The instant proceedings commenced on an application for allotment moved by one Sita Ram Bhatnagar and S. Datar. Rent Control and Eviction Officer respondent No. 1 called for a report from Rent Control Inspector. Report dated 6.9.1995 was submitted by him, which is annexed as annexure No. 1 to the writ petition. 4. Petitioner filed his objection to the aforesaid report on 27.2.1996 claiming to be a valid tenant. Assertion was that initially no rent receipt was given but subsequently rent receipts were issued by Chandrika Prasad. Claim of tenant was that he came in occupation of the disputed accommodation since before July, 1976 with consent of landlord, therefore, his tenancy stands regularized. There is no vacancy whatsoever. Objection is annexed as annexure No. 2 to the writ petition. 5. Affidavit of petitioner in support of the said objection is also part of the present writ petition. In support of petitioner’s case, Smt. Rambha Devi and Laxmi Shanker Awasthi filed separate affidavit date 12.8.1996 claiming that they have seen petitioner residing in the disputed premises since before 1976 and original landlord Chandrika Prasad (now deceased) was regularly issuing rent receipts. 6. Respondent No. 2 Mukesh Kumar Saxena disputed all the claim of petitioner made in the aforesaid affidavits. It was unequivocally asserted in his affidavit dated 30.10.1995 that petitioner was inducted as a tenant in the year 1978 at the rate of rent of Rs. 275/- per month by one of his family members without an allotment order as they were unaware of the provisions of Act. 7. It was unequivocally asserted in his affidavit dated 30.10.1995 that petitioner was inducted as a tenant in the year 1978 at the rate of rent of Rs. 275/- per month by one of his family members without an allotment order as they were unaware of the provisions of Act. 7. Respondent No. 4 also filed a detailed rejoinder affidavit dated 13.11.1996 controverting assertion of Rambha Devi and Laxmi Shanker Awasthi. Supplementary rejoinder affidavit dated 19.5.1997, which is annexure No. 9 to the writ petition, was also brought on record. Besides, an application dated 30.5.1997 annexure No. 10 to the writ petition was filed by the petitioner with a prayer that tenancy of petitioner may be regularized under Section 14 of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) and there is no vacancy. This affidavit is annexed as annexure No. 11 to the writ petition. 8. On perusal of the said affidavit, it transpires that tenant/petitioner asserted that accommodation in question is a new construction and Rent Control Act is not applicable, therefore, vacancy cannot be declared. This fact was controverted by respondent No. 4 as claim of landlord is that constructions are prior to 1958-63 as already assessed except some minor repair and alteration on account of wear and tear of the building. 9. Petitioner’s objection regarding date of construction of the disputed accommodation was raised for the first time on 30.5.1997 with an assertion that the disputed accommodation was assessed for the first time in the year 1975. 10. Rakesh Saxena respondent No. 4 disputed the aforesaid assertion by stating in his affidavit that no living portion of the first floor of premises is new construction. Portion claimed by landlord to be newly constructed was assessed in the previous assessment for the assessment year 1958-63. It was a minor alteration by bifurcating one room into two Kotharis by use of a tin shade is the only addition. 11. Sri G.L. Tripathi has drawn my attention to the exemption clause of the Act, Section 2 (2) read with explanation 1. Learned counsel has placed reliance on decision of the Apex Court Mundri Lal v. Smt. Shushila Rani and another, 2007 (6) ALJ 357. 12. Next submission is that assuming landlord’s version to be correct even then admitted position is that petitioner is residing in the disputed premises as a tenant and paid rent w.e.f. 1.7.1978. Learned counsel has placed reliance on decision of the Apex Court Mundri Lal v. Smt. Shushila Rani and another, 2007 (6) ALJ 357. 12. Next submission is that assuming landlord’s version to be correct even then admitted position is that petitioner is residing in the disputed premises as a tenant and paid rent w.e.f. 1.7.1978. The instant allotment application has been got moved at the instance of landlord after approximately 17 years, therefore, allotment application is time barred. Rent Control and Eviction Officer was liable to reject the said application on this ground alone instead of initiating proceedings and inviting report from Rent Control Inspector. 13. Sri G.L. Tripathi, has emphatically laid stress on the documentary evidence such as certified copy of the assessment register pertaining to the year 1968-73 and 1973-78, according to which date of construction is 1.4.1977. Provisions of the Act will not be applicable for the period of 10 years and there was no occasion for any allotment order at the time when he was inducted as a tenant. While replying to the allegation of landlord that certain forged rent receipts were brought on record, submission on behalf of petitioner is that tenant is not trying to take any advantage of the said rent receipts even if rent receipts are ignored, occupation of tenant was with consent of the landlord against a valid payment of rent and admitted rent receipts. Therefore, creation of tenancy right by late Chandrika Prasad is perfectly legal and valid and binding on the parties. No benefit could be derived in view of the deeming provision by contesting respondent (landlord), therefore, order declaring vacancy is without jurisdiction and without following mandatory provision of Section 15 of the Act. 14. Sri P.N. Khare, learned counsel appearing for contesting respondent has disputed each and every argument advanced on behalf of petitioner and demonstrated that rent receipts are forged. Besides, building was assessed prior to the date as claimed by tenant. In fact, date of construction as accepted by Rent Control and Eviction Officer is a question of fact and on the basis of documentary evidence and any assertion contrary to the said finding cannot be accepted in exercise of writ jurisdiction under Article 226 of the Constitution of India. 15. Sri P.N. Khare, has also laid stress on the assessment pertaining to the year 1958-63 and 1963-68. 15. Sri P.N. Khare, has also laid stress on the assessment pertaining to the year 1958-63 and 1963-68. Assessment brought on record pertaining to the year 1973-78 has been wrongly shown by petitioner as living accommodation. Portion detailed in the assessment relied upon by the tenant : (a) One Kothari, two rooms at the rate of Rs. 8/- or Rs. 117. (b) One room, one Kothari, latrine and two rooms on the back side at the rate of Rs. 150/-. 16. It is stated that the aforesaid accommodation is not in existence even at present. “Living accommodation” is in fact situated on the first floor is:- (a) One room, Kothari etc. (b) One room, two Kotharis etc. 17. Portion shown as one Kothari etc. is that of co-landlord while other one room and two Kotharis, which was earlier a tin shade room are in occupation of tenant. Claim of petitioner that assessment was enhanced in the middle of year 1973-1978 is not due to any additional construction on the first floor but it is only revised assessment. 18. I have heard learned counsels for respective parties and gone through the written submissions as well as other documentary evidence. So far first objection regarding Section 15 of the Act is concerned mentioning the period of limitation, I do not agree with submission of the counsel for petitioner. Section 15 is only an obligation on the landlord/tenant to intimate vacancy to the District Magistrate. Landlord is given benefit under Section 17 of the Act to nominate tenant of his own choice provided he has intimated vacancy under Section 15 of the Act within 7 days ( not 15 days as asserted on behalf of petitioner). There is no limitation provided. It is settled principle of law that if a tenant is inducted after commencement of the Act without an allotment order by consent of landlord, tenant cannot claim any protection under the Act whatsoever. 19. In the instant case, petitioner initially tried to show that he was inducted as a tenant prior to July, 1976 only with a view to avail benefit of Section 14 of the Act i.e. his claim of regularization of his tenancy. Rent receipts brought on record prior to 1976 are emphatically disputed by the landlord. 19. In the instant case, petitioner initially tried to show that he was inducted as a tenant prior to July, 1976 only with a view to avail benefit of Section 14 of the Act i.e. his claim of regularization of his tenancy. Rent receipts brought on record prior to 1976 are emphatically disputed by the landlord. The tenant has also asserted this half heartedly besides this is a question of fact and cannot be looked into and evaluated in exercise of jurisdiction under Article 226 of the Constitution of India. 20. Learned counsel has not laid much stress on the said rent receipts. Year of induction as a tenant as held by Rent Control and Eviction Officer is 1978. Therefore, I am of the view that no benefit of Section 14 of the Act can be availed. Tenant has also moved an application with a prayer to grant regularization under Section 14 of the Act. It appears to be misconceived. No doubt, benefit of regularization can be granted in a proceeding but no separate proceeding for regularization of tenancy can be initiated merely on the basis of an application moved with a prayer to allow benefit of Section 14 of the Act. 21. In view of findings that tenant came in occupation in the year 1978, argument of the counsel for petitioner that tenancy stands regularized is of no consequence. 22. Next submission is in respect of period of limitation. It is nowhere provided that there is period of limitation for initiating proceedings for declaration of vacancy. Vacancy has been declared on an application of allotment moved by outsider and claim of petitioner that it was at the instance of landlord cannot be accepted. This fact was not substantiated by any evidence. Therefore, I do not agree with this submission as well. 23. Question of limitation for initiating allotment proceedings is nowhere provided in the Act. Period of 10 years is only regarding applicability of the Act. In the year 1972 when initially the Act was enacted, 10 years period was provided for exemption from its clutches. 24. In the instant case, first assessment being in the year 1958-63, Act was very well applicable on the date when petitioner was inducted as a tenant. Period of 10 years is only regarding applicability of the Act. In the year 1972 when initially the Act was enacted, 10 years period was provided for exemption from its clutches. 24. In the instant case, first assessment being in the year 1958-63, Act was very well applicable on the date when petitioner was inducted as a tenant. No doubt, he was inducted as a tenant by landlord but I cannot accept that a wrong committed by landlord inducting tenant without an allotment order can be legalized and law will permit illegality to continue. ‘Two’ wrongs will not make ‘one’ right. 25. Next contention of Sri G.L. Tripathi, regarding exemption clause of the Act that Section 2 (2), Explanation 1, which relates to a new construction is also of no consequence so far fact of the present case is concerned. Question whether construction is new or old one is a question of fact and would also depend upon nature and extent of addition and alteration made in the building. It is mixed question of law and fact. Pure finding of fact based on appreciation of evidence cannot be interfered unless and until it is established substantially that the Court/ authority below have committed manifest error of law. Explanation 1 mentioned above is for the purpose of exemption from the purview of the Act. Construction of building shall be deemed to have been completed on the date of completion or is reported or otherwise recorded by the legal authority having jurisdiction. In the case of building, it is subject to assessment or first assessment when it comes into effect. So far decision relied upon by Sri G.L. Tripathi, Mundri Lal (supra) deals with this aspect substantially. On a close appreciation of evidence and documents, I am in full agreement of the principle laid down by the Apex Court but facts of the present case do not allow benefit to petitioner. A clear finding of fact on the basis of assessment entries and evaluation of factual assertion in the affidavits adduced in evidence has been recorded. There can not be a reappraisal of evidence. A conclusion has been arrived at that no new construction was made as claimed by the tenant petitioner and accordingly, the question of applicability of the Act has been decided. I do not agree with Mr. There can not be a reappraisal of evidence. A conclusion has been arrived at that no new construction was made as claimed by the tenant petitioner and accordingly, the question of applicability of the Act has been decided. I do not agree with Mr. Tripathi and the emphasis that the tenanted accommodation is a ‘new construction’ and there is a clear exemption operative is without any substance. 26. In view of what has been stated above, I am not in agreement with submission of the counsel for petitioner. The order dated 17.9.1998 passed by Rent Control and Eviction Officer/Additional City Magistrate Ist, Kanpur Nagar, does not call for any interference in exercise of jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merits and is, accordingly, dismissed. ————