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Behari Lal v. Xiii A.D.J., & Others - WRIT - A No. 38830 of 2000  RD-AH 16445 (20 September 2006)
Civil Misc. Writ Petition No.38830 of 2000
XII Additional District Judge and others
Hon. Sanjay Misra, J.
Heard Sri Daya Shanker, learned counsel for the petitioner and Sri M.M.D.Agarwal, learned counsel appearing on behalf of the respondents.
The petitioner had moved an application for allotment of the premises in question on 19.3.1996. Upon the said application, the Rent Control & Eviction Officer directed the Rent Control Inspector to make an inspection of the premises in question to determine as to whether the same was available for allotment. The Rent Control Inspector by his report dated 19.4.1996 informed the Rent Control & Eviction Officer that the premises in question was available and could be declared as vacant. The respondent as owner of the premises in question filed his objections and contended that the report of the Rent Control Inspector was not made on the spot and was exparte and the recital therein that it was made in presence of the parties is wrong. On the aforesaid objection, the Rent Control & Eviction Officer directed the Rent Control Inspector to make another inspection after giving notice to the parties. The second inspection report was submitted on 26.5.1997 by the Rent Control Inspector wherein he found that the premises in question was roofless and he recorded that the aforesaid premises was in the tenancy of Jasra Sahkari Kraya Vikray Samiti but was roofless at the time of inspection. The Rent Control & Eviction Officer considered the second report of the Rent Control Inspector and found that the premises in question was not a building within the meaning of section 3(i) of U.P. Act No.XIII of 1972 and therefore he
found that he had no jurisdiction to continue with the proceeding for allotment.
Feeling aggrieved the petitioner filed Rent Control Revision No.463 of 1998. The revisional court upon considering the various grounds taken by the petitioner has recorded that respondent landlord had filed a case no.88 of 1978 against Jasra Sahkari Kray Vikray Samiti for eviction and for recovery of arrears of rent. The said case was decreed exparte by III Addl.District Judge, Allahabad by the judgment and order dated 5.10.1978. In pursuance of the aforesaid decree the respondent landlord obtained possession through the process of the court from the said Samiti on 18.9.87. The revisional court also found that the first report of the Rent Control Inspector was exparte report. The revisional court therefore held that the order of the Rent Control & Eviction Officer whereby he held that he had no jurisdiction does not suffer from any error of law and held that premises did come within the meaning of section 3(i) of the Act. It was held by the revisional court that after the possession of the building was taken by the petitioner in 1987 it appears that the tin shed had fallen down. It also recorded that the objections taken by the petitioner to the effect that after first the inspection report of the Rent Control Inspector the landlord had removed the tin shed only to defeat the application of the petitioner not to be correct. The revisional court therefore confirmed the order of the Rent Control & Eviction Officer.
Learned counsel for the petitioner has submitted that in view of the decision of the Hon'ble Supreme Court in the case of Ashok Kapil Vs. Sana Ullah and others reported in JT 1996(8) SC 525, a structure having no roof would come within the definition of building as defined in section 3(i) of U.P. Act No.XIII of 1972. Referring to paragraphs 10 and 11of the aforesaid judgment he has contended that a building would include within the ambit a structure which does not have roof in certain circumstances. In reply, Sri Agarwal has placed
reliance on a decision of this court in case of Salig Ram Vs. Rent Control and Eviction Officer and another reported in 2006(3) ALJ 161 and contended that the building means a roofed structure and if on an open piece of land tin shed is placed supported by angle irons it does not become a building. This court held that a roofed structure means roof placed upon some sort of walls which may be either pucca or kachcha or wooden or of tin. The question in this case has arisen as to whether the premises in question ceased tobe building within the meaning of section 3(i) of the Act. The fact is that roof was not found at the time of second inspection and the contention of learned counsel for the respondents is that the tin shed had fallen down and the premises in question remained vacant from the date possession was taken by the respondents in 1987 and it remained as such upto the date of application i.e. 19.3.1996. He contended that respondent has not removed the roof but the tin shed having become rotten had fallen down itself and therefore the godown ceased tobe a building as defined in the Act.
In the case of Ashok Kapil (supra ) the Hon'ble Supreme Court has held that ''if the District Magistrate has commenced exercising jurisdiction under section 16 of the Act in respect of a building which answered the description given in the definition in section 3(i), he would be well within his jurisdiction to proceed further notwithstanding the intervening development that the building became roofless.' In the aforesaid case the lessee surrendered vacant possession of the building to the landlord on 3.8.1974. An application for allotment was made on 20.8.1974. The landlord filed his objection on 3.9.1974 claiming that the structure was not a building in as much as it had no roof. It was later found that the building was a roofed structure when it was vacated by the lessee but subsequently its tin roofs were dismantled by the owner. The aforesaid removal of the tin roof by the owner had taken place at a time between 3.8.1974 to
3.9.1974 i.e. within a period of one month of its vacation by the earlier lessee. It was therefore held that the owner cannot take advantage of his own wrong.
Learned counsel for the respondents placed reliance upon a decision in the case of Ragini Jain Vs. Rent Control and Eviction Officer and others reported in 1989(1) ARC 400. His contention is that the first report of the Rent Control Inspector was found to be in violation of Rule 8 of the U.P. Urban Buildings ( Regulation of Letting, Rent and Eviction) Act 1972 and therefore the Rent Control and Eviction Officer had ordered for second inspection. His further contention is that the first report of the Rent Control Inspector was exparte and the recitals therein were false.
In the present case the application for allotment was made on 19.3.1996. The court below relied upon the second report dated 26.5.1997. However, in para 3 of the counter affidavit it has been averred that godown in question had an old rotten tin shed which with the passage of time fell down and the godown became open to the sky. Since the godown had no roof for several years it ceased to be a building. In the rejoinder affidavit it has been stated that the building in question was covered by a tin shed which has subsequently been removed by the respondent only for the purpose of avoiding the allotment proceeding. This averment has been made on the strength of first report of the Rent Control Inspector. Since the court has not taken into consideration the first report of the Rent Control Inspector and has relied upon the second report therefore it found that the structure was roofless. There is no evidence on record nor there is any finding of the courts below to indicate as to at what point of time from 1987 upto 1996 the tin roof fell down or was removed. The existence of trees and bushes within the walls could be an indication that the tin roof had fallen down or removed at a time in the past but not
definitely in the period between the first report dated 19.4.1976 and the second report dated 26.5.1997. On the date when the application for allotment was made i.e. 19.3.1996 if the structure was roofless and ceased to be a building then the District Magistrate would have no jurisdiction to proceed. Therefore, in the absence of a finding to the contrary the structure in question cannot be held to be a building within the meaning of the definition given in section 3(i) of the Act. Further in view of the decision in the case of Ragini Jain (supra) the courts below could not place reliance on the first report dated 19.4.1996 and they have rightly relied upon the second report of the Rent control Inspector.
For the aforesaid this court finds no error in the impugned orders dated 15.4.1998 and 20.7.2000 passed by the Rent Control and Eviction Officer and the revisional court respectively.
The writ petition lacks merit and is accordingly dismissed. No order is passed as to costs.
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