R.B.Mehrotra - (1.) IN the present writ petition under Article 226 of the Constitution of INdia the petitioner has challenged the order of the Rent Control and Eviction Officer/City Magistrate, Jhansi, dated 8-12-1989 declaring house no. 591, situate at Sadar Bazar, Jhansi, to be vacant. The Rent Control and Eviction Officer, Jhansi has recorded a finding that it is clear from the report of Rent Control INspector dated 16th May, 1988, 3rd January, 1989 and 4th January 1989 that in the disputed house, first floor of the roof is existing and the room has now been converted into a big hall.
(2.) THE contention of the landlord is that the aforesaid house was got released under section 21 of the U. P. Act no. 13 of 1972 (herein after referred to as the Act), in which he was himself residing, which has now become a 'Khandhar'. THErefore, the house does not come within the purview of Rent Control Act, as such, cannot be allotted; the application of the petitioner for allotment of the house should be rejected. THE petitioner counsel has not disputed* before me the correctness of the finding recorded by the Rent Control and Eviction Officer, which is being reproduced below ; "It is clear from the report of the Rent Control Inspector that after getting the house released the same was never used for residential purposes by the landlord. It is also clear from the record that the landlord is residing in bouse no. 208, Jokan Bagh and his ration card is also from the said residence and in the voter list is also shown from the same house. THE landlord has not produced any concrete evidence to show that the house in dispute has itself fallen down and has become a khandhar, but it seems that the landlord himself has made it a khandhar, so that it may not be declared vacant and may not be allotted. Where as it is clear from the report of the Rent Control Inspector that in the disputed house there is a roof even on the first floor and the room has been converted into a big hall which means that the house is still worth living, therefore, the house has been declared vacant." The contention of the petitioner's counsel is that on the date the house was declared to be vacant even roof of the first floor has fallen down and, therefore, on the date the vacancy of the disputed house was declared, it was not a building within meaning of the word, as defined under section 3 (1) of the Act. Learned counsel for the petitioner has relied upon two decisions of this court for contending that even though the landlord himself may demolish the roof after getting release of the premises under section 21 of the Act. The Rent Control and Eviction Officer will have no authority to declare the premises either to be vacant or to allot the same as the premises will not be covered by the word 'building' as defined under section 3 (1) of the Act. The decision relied upon by the learned counsel for the petitioner are, Sanaullah v. VIII Addl. District Judge, Meerut 1979 ARCjl38, and the case Prem Kumar v. Fourth Addl. District Judge, 1981 ACrR Short notes 33, page 19, being writ petition no. 187 of 1979, decided on 12th September, 1980 where in Sanaullah's case has been followed.
(3.) THE view taken in the aforesaid two decision is that once a landlord gets his building released under section 21 of the Act and does not occupy it for the purposes the building was got released but chooses to demolish the said building, the rent control authorities will cease to have any jurisdiction to deal with the premises, which has fallen down as there will be no building within definition of the word given in section 3(1) of the Act and such a premises can not be declared to be vacant or allotted as it will not be termed as building within meaning of the Act. With due respect I am not in agreement with the aforesaid view as it is permitting to create a situation where the landlord by his own misconduct can demolish a building after getting the same released under section 21 of the Act and by his own mischief or misconduct created a situation that the building goes out of purview of Rent Control Act and thereby frustrate the provisions of section 24 (1) of the Act. I would have referred the matter for consideration by a larger bench on the aforesaid aspect of the matter but in the facts of the present case I do not think it necessary to refer the said matter for consideration by a larger bench as the finding recorded by the Rent Control and Eviction Officer, in the present case, is that roof structure existed on the date the allotment order was passed. The said finding of fact is binding, on me in view of the law laid down by this court in Sanaullah's case (supra), where this court has categorically held that it is not open to the court in exercise of its jurisdiction under Article 226 of the Constitution to interfere with the finding of fact recorded by the subordinate courts. The contention of the petitioner's counsel* that on the date the vacancy of the disputed premises was declared, even roof of the upper portion was renewed, has been controverted in the counter affidavit wherein it has been stated that the disputed house is in the shape of a building and is capable of being allotted. In the counter-affidavit photographs of the disputed premises has also been filed, which shows that building exists on the spot. This factual controversy can not be decided in the present writ petition and the finding of facts recorded by the Rent Control and Eviction Officer in the impugned Judgment has to be accepted.;