R.B.Mehrotra - (1.) - By means of present writ petition under Article 226 of the Constitution the petitioner has challenged the order of the Rent Control and Eviction Officer, Allahabad, dated 29th May 1989, declaring the disputed house to be vacant under section 12 (3) of U. P. Act no. 13 of 1972 hereinafter referred to as the Act.
(2.) THE main contention of the petitioner's counsel is that the impugned order is mainly based on the report of an Advocate Commissioner, who made surprise inspection of the disputed premises. THE contention of the petitioner's counsel is that there is no provision under the Act, under which an Advocate Commissioner can be deputed for surprise inspection. According to the petitioner, the only provision for inspection is contemplated by rule 27 of the rules framed under the Act. Rule 27 contemplates an inspection for the purposes of deciding the case by the District Magistrate or the prescribed authority or the appellate authority or the revising authority. According to the petitioner's counsel there is no provision under the Act, under which an Advocate Commissioner can be sent for inspecting the disputed premises and more-over there is no provision at all for deputing an Advocate Commissioner for the surprise inspection. THE petitioner's counsel further contended that the entire impugned order is based on the report of the Advocate Commissioner. THE Rent Control and Eviction Officer has failed to take into consideration the other material evidence filed by the petitioner for demonstrating that the petitioner had acquired the other accommodation much prior to, coming into force of U. P. Act No. 13 of 1972 and, as such, the provisions of section 12 (3) which are prospective in nature could not,have been attracted but the Rent Control and Eviction Officer, failed to take into consideration the aforesaid material and erred in declaring the premises to be vacant only on the basis of the report of Advocate Commissioner. The learned counsel for the respondent has disputed the aforesaid contentions and has relied upon the provisions of section 34 (i) (c) of the Act for contending that the District Magistrate, Prescribed authority, Appellate authority or the revising authority have power vested in the Civil Court under the Code of Civil Procedure for inspecting a building or its locality or issuing a Commission for examination of witnesses or documents or local investigation. Order 26 Rule 9 of the Code of Civil Procedure authorises a Civil Court to issue a Commission to such person as it thinks fit where the court deems a local investigation to be requisite property proper for the purposes of indicating any matter in dispute. It is clear from the aforesaid two provisions that the authorities under the Act have jurisdiction to issue commission for local investigation. The grievance of the petitioner, that there was no authority to issue a surprise inspection, can not be accepted for the reasons that the inspection report of the Advocate Commissioner clearly shows that inspection has been done in the presence of the petitioner and as such the petitioner can not feel aggrieved merely on the ground that a surprise inspection was made. The only purpose of giving notice of such inspection is that the parties should be present at the time of inspection. The peitioner, admittedly, being present at the time of inspection can not raise grievance of the fact that surprise inspection was ordered. Even if, technically the petitioner is right that the surprise inspection could not have been ordered, in view of the faots that the petitioner was present at the time of inspection, the said grievance of the petitioner is not entertain able in a writ petition under Article 226 of the Constitution.
(3.) THE report of the Advocate Commissioner is a detailed report, wherein it has been acted that in house no. 4-B) Lookerganj, Allahabad, about 3/4 years back the residential portion- have been constructed, wherein the entire family of the petitioner alongwith his wife son and daughter have been found to be residing. THE report has further stated that Sri Misri Lal (the petitioner) was tenant of house no. 37 Sarai Khuldabad, Allahabad, has now shifted to his residence at 4B-Lookerganj Allahabad, with his family and luggage and has kept the house no. 37-Sarai Khuldabad, Allahabad, locked. THE Advocate Commissioner, had also inspected the disputed premises, which is situate at 37-Sarai Khuldabad, Allahabad and found that the said premises is lying vacant and no body is residing in the said premises. There is nothing on record to show that at any point of time the petitioner ever challenged the correctness of the said report. Neither there is any averment in the writ petition nor anything has been stated in the rejoinder affidavit. The inspection report was not filed by the petitioner, but has only been filed alongwith the counter affidavit;