Allahabad High Court
Ravi Ahuja vs Rajeev Kumar & Anr. on 18 April, 2018
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- RENT CONTROL No. - 28539 of 2016 Petitioner :- Ravi Ahuja Respondent :- Rajeev Kumar & Anr. Counsel for Petitioner :- Virendra Mishra,Shradha Misra Hon'ble Rakesh Srivastava,J.
1. This petition under Article 227 of the Constitution has been filed by the tenant-petitioner challenging the order dated 28.10.2016 passed by the Additional District Judge, Court No. 2, Lucknow in Rent Appeal No. 8 of 2016 (Ravi Ahuja Versus Rajeev Kumar & Anr.) whereby the application moved by the petitioner for local inspection has been rejected.
2. By a registered sale deed dated 06.07.2000, the respondents purchased a plot measuring 1800 sq. ft. situated at Moti Nagar, Lucknow together with the house (bearing House No. 289/323) built thereon. The entire first floor of the said house was in occupation of the petitioner, as a tenant, since before its purchase by the respondents.
3. On 19.01.2008, the respondents moved an application under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short ''Act') before the Prescribed Authority seeking release of the first floor of the house in question from the petitioner on the ground of their as well as their family's bonafide need. In the said application the respondents categorically averred that the petitioner had illegally occupied two rooms, a store and some covered space on the ground floor which was earlier in the tenancy of Nanku Ram.
4. In his written statement dated 24.04.2008, the petitioner admitted that the respondents were the co-owners and landlords of the house in question and that the petitioner was their tenant with respect to the entire first floor of the said house, however, the petitioner contended that apart from the first floor, two rooms on the ground floor were also in his tenancy. The averments made in the release application pertaining to bonafide need and comparative hardship were denied. Belatedly, on 24.01.2011, the petitioner filed an additional written statement in which it was inter alia averred by him that as per the sale deed dated 06.07.2000 the respondents had purchased only 350 sq. ft. covered area which was situated on the ground floor and since the first floor of the house in question was not purchased by the respondents, the release application at their behest was not maintainable. The respondents filed their replication denying the averments made in the written statement and the additional written statement.
5. On 23.05.2014 the petitioner moved an application for spot inspection. It was alleged that while preparing evidence, it transpired that the premises sought to be released was different from the one purchased by the respondents and as such a commission be appointed to make local inspection and to submit its report with respect to the area in possession of the respondents as well as the petitioner. The respondents filed their objections inter alia stating therein that the respondents were adopting delaying tactics and that the petitioner could not be permitted to collect evidence through inspection. By his order dated 23.08.2014, the Prescribed Authority rejected the application for spot inspection on the ground that the respondents had filed their evidence long back and in spite of last opportunity being given for filing his evidence, the petitioner failed to file the same. Instead, he moved the application for spot inspection. The Prescribed Authority held that the petitioner cannot be permitted to collect evidence by local inspection and after the evidence of the petitioner was over, if need be, appropriate orders for appointment of Commissioner for local inspection could be passed.
6. On 19.09.2014 the petitioner moved another application for local inspection on the ground that as per sale deed dated 06.07.2000 the portion in the tenancy of the petitioner had not been purchased by the petitioner and as such the application for eviction of the petitioner was not maintainable. It was averred that to clarify this possession, it was necessary that a local commission be issued. The respondents filed their objections to the said application. By his order dated 17.04.2015, the Prescribed Authority rejected the said application by holding that the question as to whether the accommodation in the tenancy of the petitioner had been purchased by the respondents or not could be ascertained from the sale deed and from the oral and documentary evidence on record and not by local inspection.
7. During the pendency of the release application, on 03.04.2012, the City Magistrate, Lucknow passed an order whereby the portion on the ground floor of the house in question, illegally occupied by the petitioner, was released in favour of the respondents. It was only after the said order was upheld by the Apex Court, did the petitioner hand over possession of the portion of the house illegally occupied by him on the ground floor to the respondents.
8. On 05.01.2006 the petitioner moved a third application for local inspection on the ground that after the release of the accommodation on the ground floor, the need of the respondents stood satisfied and as such the spot inspection was necessary in order to determine the exact accommodation in possession of the respondents. The respondents filed an objection to the said application.
9. By a composite order dated 05.02.2016, the Prescribed Authority rejected the application dated 05.01.2006 moved by the petitioner for inspection and allowed the release application of the respondents.
10. Against the order dated 05.02.2016, the petitioner preferred a Rent Appeal No. 8 of 2016 which is still pending. In the said appeal the petitioner, on 14.03.2016, again moved an application for inspection. The grounds on which inspection was sought were the same as those taken by him in the applications moved by him for the purpose earlier.
11. The Appellate Authority, by its order dated 08.10.2016, rejected the application for local inspection on the ground that the Commissioner can only submit a report with respect to physical status and that he has no authority to submit a report regarding possession over the disputed property. The Appellate Court held that the question of possession was to be determined on the basis of the evidence led by the contesting parties.
12. Sri Virendra Mishra, the learned counsel for the petitioner, has submitted that the local inspection of the premises in question was necessary in order to bring on record the accommodation in possession of the respondents as well as the petitioner. According to Mr. Mishra, unless the exact accommodation in possession of the contesting parties is brought on record, the question of bona fide need and comparative hardship cannot be decided.
13. Per contra Sri P.S. Mehra, learned counsel for the respondents has supported the impugned order. The counsel submits that the petitioner has repeatedly moved applications for inspection on the same set of facts only to delay the disposal of the appeal.
14. Section 34 (1) (c) of the Act inter alia confers upon the District Magistrate, the Prescribed Authority or any Appellate or Revisional Authority the power to issue a commission for inspection of a building.
15. Relevant portion of Section 34 of the Act, reads as follows:-
"34. Powers of various authorities and procedure to be followed by them. - (1) The District Magistrate, the prescribed authority or any appellate authority shall for the purposes of holding any inquiry or hearing any appeal under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters, namely,-
...
(c) inspecting a building or its locality or issuing commission for the examination of witnesses or documents or local investigation.
16. Learned counsels for both the parties have drawn the attention of this Court to various decisions of this Court in support of their respective contentions. It would be appropriate to refer to some of the decisions which have a bearing on the point in issue in the present case.
17. In Randhir Singh Sheoran Vs. VIth Addl. District Judge & Ors.(1997) 31 ALR 116, a learned Single Judge of this Court held that local inspection is not made to collect evidence but it is made only where the circumstances of the case require it for arriving at a just decision. In paragraph 8 of the said report the Court opined as under:-
"8 ...The local inspection by court is made only in those cases where on the evidence led by the parties court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making inspection. Local inspection by the court cannot be claimed as of right by any party. Such inspections are made to appreciate the evidence already on record and court is not expected to visit the site for collecting evidence. "
(emphasis supplied)
18. The same view has been reiterated by this Court in Avinash Chandra Tewari vs. A.D.J. & Ors, 2010 (80) ALR 790 and Krishna Mohan Mahrotra vs. Additional District Judge Court & Ors, 2015 (4) ALJ 773.
19. In Radhey Shyam & Ors. vs. Addl. District Judge & Ors., 2010 (80) ALR 58, it has been observed by this Court:-
"11. It is well settled proposition of law that when an application for local inspection is moved in a case, then the Court concerned has a discretion to issue the same or not keeping the facts of the case and the evidence led by the parties whether the same is necessary to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection and upto what extent the same is necessary for disposal of the controversy involved in the case.
12. Thus, it is not mandatory on the part of the Court to allow each and every application which is moved for local inspection and the same cannot be claimed as a matter of right by the parties. Further, while allowing or rejecting the same, the Court should also take into consideration the motive and reasons behind moving the same coupled with the factors, e.g. for what purpose it has been moved.
(emphasis supplied)
20. In Jagdish Narain Vs. Subhash Chandra Gupta (2013) SCC Online 9851 while rejecting the request for issuance of commission, it was reiterated that a party cannot claim issuance of a commission as a matter of right. A commission is issued only in those cases where on the evidence led by the parties, the court was not able to arrive at a just conclusion. The Court observed as under:-
"I do not find any merit in the present writ petition for the simple reason that the proceeding seeking release of the accommodation under Section 21 (1) (a) of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is summary in nature and there the cases are decided only on the basis of exchange of affidavits, the applicant cannot claim the issuance of the commission as a matter of right. It is for the prescribed authority, after considering the case of the parties, if he comes to the conclusion there is any ambiguity in the affidavits, in that eventuality the prescribed authority can issue a commission for its own satisfaction with a view to come to the right conclusion.
This Court in the case of Tushar Kumar Shah Vs. District Judge, Kanpur Nagar (2012 (1) ARC 909) has held that the Commission cannot be issued for the purposes of collecting evidence on behalf of either party. In Jaya Kalia (Smt.) Vs. Smt. Manju Agarwal (2009(3)ARC 799), this Court has held that if the contents of the affidavit filed on behalf of the landlord are not correct, it can be rebutted on the basis of the affidavit in rebuttal.
Again in Smt. Sunder Kaur and Another Vs. Smt. Ram Kali and Others (2011(3)ALJ 165), this Court, taking note of the earlier decisions of this Court in Randhir Singh Sheoran Vs. 6th Additional District Judge (1997(2)JCLR 860), Radhey Shyam Vs. A.D.J., Court No. 13, Lucknow and Others (2010(2) A.D.J. 758) and Sonpal Vs. 4th Additional District Judge, Aligarh and Others (1992 (2) ARC, 596), has held that the local inspection or Commission by Court is made only in those cases where, on the evidence led by the parties, court is not able to arrive at a just conclusion, either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or Commission. Local inspection or issuance of Commission by the Court cannot be claimed as a matter of right of any party. "
(emphasis supplied)
21. Now coming to the cases relied upon by the counsel for the petitioner. In Ram Jaiswal Vs. Kailash Chandra, 2015 (2) ARC 239 an order for local inspection was passed without hearing the respondents and as such the petitioner does not derive any benefit from the said order. In Iqbal Ahmad Vs. Ram Naran Gera & Anr., 2009 (1) ARC 713, the inspection application moved at the appellate stage was rejected only on the ground that a similar application was rejected by the Prescribed Authority. The order rejecting the application was set aside and the petitioner in that case was permitted to move a fresh application. The facts of the present case are different and the petitioner does not derive any benefit from the said case law. In Kishore Seth Vs. Prescribed Authority & Anr., 2009 (2) ARC 74, the order for local inspection was passed on the basis of the consent of the counsel for the parties. This case is of no help to the petitioner.
22. It is, thus, fairly well settled that the Authorities are not bound to order the issuance of a commission whenever requested. The appointment of commissioner cannot be sought for or obtained as a matter of course and that too to achieve any ulterior object or motive. The appointment of commissioner for local inspection has been left to the discretion of the authorities. The discretion, however, is a judicial one and not an arbitrary exercise of power. It depends upon the facts and circumstances of each case. Local inspection is ordered only when the authorities consider it to be essential or proper for the purpose of resolving any matter in dispute. The question of appointment of a commissioner does not merely depend upon whether any prejudice is caused to the other side or not. Instead, there should be sufficient basis and justification for issuance of a commission and also effective need.
23. It is equally well settled that the object of local inspection is not to collect evidence which can be taken in court. The object of local inspection is to elucidate upon any matter which continues to remain in dispute even after evidence has been adduced in the case. The court commissioner, however, cannot be appointed for collecting evidence. The provision of Section 34 (1) (c) of the Act for appointing a commissioner are generally triggered after closure of evidence. The court, thus, cannot appoint a commissioner, empower him to visit and inspect the suit property and submit his report regarding actual possession of the suit property as it would amount to collecting evidence regarding possession.
24. In the case at hand, the petitioner had moved an application before the Appellate Authority for appointment of local commissioner to submit a report regarding the extent of possession of the petitioner and the respondents over the disputed property. The application of the petitioner has been rejected on the ground that the local commissioner can only submit a report with respect to physical status and he has no authority to submit a report regarding possession over the disputed property. In view of the settled legal possession, there is no infirmity or illegality in the order passed by the lower appellate authority.
25. Under Sub Rule (7) of Rule 7 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 framed under the Act, an appeal is required to be decided within six months from the date of its presentation. Instead of arguing the appeal on merits, the petitioner moved an application for local inspection before the Appellate Authority and apparently insisted upon the court to dispose of the said application before proceeding any further. The petitioner had unsuccessfully moved three applications for local inspection before the Prescribed Authority. The petitioner again moved an application for local inspection before the Appellate Authority on the same ground on which he had moved the previous application. The application for appointment of local inspection prima facie appears to have been moved with an oblique motive to delay the hearing of the appeal.
26. In view of the above discussion, the writ petition is devoid of merit and is accordingly dismissed with cost.
27. The Court below is directed to dispose of the appeal, expeditiously, say within a maximum period of four months from the date a certified copy of this order is served upon it.
Order Date :- 18.04.2018 Pradeep/-