- (1.) This is a petition under Article 226 of the Constitution of India. The facts giving rise to the present petition briefly are as follows :- The opposite party No. 3 Dr. T.D. Srivastava (hereinafter referred to as the Doctor) was a Government Doctor posted at Mirazapur. By an allotment order dated 6.7.1964, he was allowed a portion of the building situate at Elliot Ghat, Mohalla Welleselygan of Mirzapur city. This was the front portion of the house. The back portion of the house was then in occupation of one S.P. Misra, a local advocate. He vacated the premises. The said back portion was also allotted by the rent control authority on 20th August, 1968 in favour of the Doctor. Prior to this allotment the Doctor resigned from the Government service and started doing consultation work in the portion which was allotted to him. The effect of both the allotment orders was that the entire building was allotted to the Doctor. The petitioner Radhey Shyam Vaish is the owner and landlord of the said premises. In 1975 the Doctor purchased a house in Mission Compound, Ram Bagh, Mirzapur. Thereafter he moved a release application before the Rent Control and Eviction Officer on the ground of his personal need. The said house was consequently released in favour of the Doctor and he shifted his residence and his nursing home in the said premises. After the Doctor had shifted to his own house, the petitioner moved an application on Ist August, 1977 under Section 16(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972), hereinafter referred to as the Act, for release of the said building. The ground which was set up in release application was that the landlord's son, Dr. Vinod Kumar Gupta was unemployed and wanted to start his private practice and that the petitioner also having been transferred from Allahabad to Varanasi as a Junior Auditor wanted to shift his family in the same building and reside there. Further contention of the petitioner was that the property should be deemed vacant under Section 12(3) of the Act as the tenant had acquired in a vacant state a residential building in the same city and that the Doctor had removed his affects from the building in question and had completely shifted to the house in Mission compound.
(2.) This application of the landlord was contested by the Doctor on the ground that the house at Mission Compound was very unsuitable for the profession purposes and that he has been using the building in question since 1967 and consequently he has developed a good will and reputation in respect of the building. It was further urged that the petitioner was possessed of another building in the locality and as such his need is not bonafide and the property be not released in his favour. The Rent Control and Eviction Officer by an order dated 15th November, 1978 held that the property could not be deemed vacant under Section 12(3) of the Act and as such the release application was rejected. The Rent Control and Eviction Officer did not go into the merits of the need which was set up by the petitioner. Aggrieved by the said decision, the petitioner filed a revision under Section 18 of the Act in the Court of the District Judge, Mirzapur. This revision was also dismissed by the III Additional District Judge, Mirzapur by judgment dated 18th February, 1980. He was also of the view that the property could not be deemed vacant under Section 12(3) of the Act and consequently he rejected the release application. The revisional Court further held that the revision under Section 18 of the Act was not maintainable. Aggrieved by the decision dated 18th February, 1980 as well as 15th November, 1978 the present petition has been filed challenging these orders.
(3.) Learned counsel for the petitioner has urged firstly that the revision was maintainable under Section 18 of the Act and view to the contrary taken by the revisional Court is manifestly erroneous. The second submission of the learned counsel is that the District Judge has erred is not property considering the scope of the expression "residential building" and therefore, erred in holding that the property in dispute is not a residential building. The third submission of the learned counsel is residential building. The third submission of the learned counsel is that the Court below has misread paragraph 5 of the application and has wrongly treated this to be an admission of the petitioner and consequently erred in holding that the petitioner had consented to the change of the purpose of the residence from residential to business.;