S. D. Agarwala, J. - (1.) THIS is a writ petition under Article 226 of the Constitution of India challenging the order of the District Judge, Bulandshahr dated 27th Sept. 1975 dismissing the appeal of the petitioners against an order passed by the Rent Control and Eviction Officer under Sec. 16 of the U. P. Act No. 13 of 1972.
(2.) THE counsel for the petitioners has urged before me that the Commissioner's report dated 15-7-1975 has not been considered by the District Judge. This was material piece of evidence and as such a finding recorded by the Commissioner is vitiated in law. The second contention raised by the counsel for the petitioners is that the District Judge has not considered the bona fide need of the landlord before releasing the property in his favour. The District Judge after considering the evidence on record has recorded a finding of fact that the petitioners had closed down their business of the shop in question and had removed their goods from the shop and the same was lying vacant, and as such the Rent Control and Eviction Officer was right in treating the shop as vacant in view of Section 12 of the Act.
(3.) IT is, no doubt, correct that the exparte commission was issued on the application of the petitioners by the District Judge. The Commissioner had submitted his report on 16th of July 1975. I have examined the report of the commissioner which is Annexure 4 to the writ petition. The report is not relevant for determination as to whether the petitioners had vacated the shop or not. In this report certain facts have been stated in regard to the shops other than the one occupied by the petitioners, In the circumstances it was not material document which was necessarily to be considered by the District Judge before recording a finding in regard to the vacancy. Section 12 of the Act clearly lays down that a building will be deemed to be vacant if the tenant has substantially removed its effects from here. The District Judge has recorded a finding that the petitioners had closed their business. They had started carrying on business in Dubai and they had removed their goods from the shop and the same was lying vacant. This is a finding of fact and in view of this finding, the view taken by the lower appellate court that there was a deemed vacancy is correct.;