Shitla Prasad Srivastava, J.:— This petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 22nd December, 1996, passed by the Rent Control and Eviction Officer (hereinafter referred to as opposite party No. 1), declaring the premises in dispute as vacant.
2. The brief facts as stated in the writ petition are that premises No. 119/412, Darshan Purva Kanpur, hereinafter referred to as premises only was in the tenancy of the petitioner which consists of two adjacent units at the distance of about 80 feet. The outer room of the accommodation was used for commercial purpose and the inner room was used for residential purpose. Separate rent was payable in respect of these two different units. The tenancy started prior to 1947 in favour of Mam Raj Gupta, the father of the petitioner. After his death his widow Shanti Devi and three sons including the petitioner succeeded the tenancy as legal heirs of the deceased-tenant. It is stated that non-residential portion was utilised in running the establishment known as Gupta Vidyalaya. Petitioner's case is that his father Mam Raj Gupta was running another school named and styled as Gupta College, in a separate accommodation situate at house No. 119/412 Darshan Ka Purva Kanpur, which is a different unit. According to the petitioner for non-residential portion his father was paying Rs. 6.00 per month as a rent, whereas for residential portion he was paying rent at the rate of Rs. 7.50 per month. The same was being paid by the petitioner also and in the assessment register maintained by the Kanpur Nagar Palika the case of the petitioner is that one Prayaga Nand Chaturvedi who is arrayed as respondent No. 2 filed an application for declaration of the vacancy in respect of the accommodation i.e residential and non-residential for the purpose of respondents. A report was submitted by the Rent Control Inspector to the effect that the premises was found locked. The report was ex-parte which is in violation of the Rule 8(2) framed under U.P; Rent Control Act 13 of 1972. No notice was given to the petitioner of the application filed for declaration of vacancy, therefore, the petitioners were not to aware of the Inspector's report. An objection was filed on behalf of Shri Prem Raj Gupta and Dr. Ramraj Gupta with the affidavit of Shanti Devi. An application for local inspection was also filed to be made by the Advocate Commissioner in order to examine whether the portion in which the vacancy sought to be declared was residential and non-residential, which was rejected on 20.5.1993 Against the order of rejection aforesaid, a writ was filed in the High Court which was rejected treating the impugned order as interlocutory one. Evidence was filed by the petitioner to prove that the dispensary is being run in the non-residential portion and also to the effect that initially a Vidyalaya was being run there. Therefore, it is a non-residential portion, therefore, the application under Section 12 for non-residential portion was not maintainable. It is further stated that the proposed prospective allottee obtained an ex-parte report from the Rent Control Inspector and an application for release was also filed by the landlord. An application was filed by the petitioner to cross-examine the landlord, as well as proposed allottee, which was rejected. A writ was filed before this Court which was also dismissed. The opposite party No. 1 declared the vacancy by impugned order dated 22nd December, 1995, which is under challenge in this writ petition. Ground of attack as taken by the petitioner is that the respondent No. 1 has passed illegal order against the record under the impression and assumption that Gupta Vidyalaya and Gupta College are one and the same. He has not taken into consideration that Gupta College is a different institution and it is being run in different house at house No. 119/412, though in the same locality which was not a disputed accommodation nor application was filed for its declaration of the deemed vacancy or for release. The second ground of attack is that the respondent No. 1 had no jurisdiction to include the application for release in the proceedings for declaration of vacancy. The third ground is that the Inspector Report is in violation of Rule 8(2) of the rules framed under the Act.
3. Counter affidavit has been filed by the contesting respondents in which it is stated that the tenancy was a single tenancy of both the portions as they are part and parcel of one residential unit and no part of it is commercial one. That Mam Raj Gupta has acquired his own house No. 119/412 in the same locality Benami in the name of his wife Smt. Shanti Devi. The entire family shifted in that house during the life time of Shri Mam Raj Gupta. The existence of Gupta Vidyalaya was also denied in paragraph 6. It is stated that Gupta Vidyalaya and Gupta College are synonymous of each other, which have been erroneously described as two accommodation. That the vacancy was there as Mam Raj Gupta shifted in his own house. The Inspector gave notice to both the parties, but as the premises was found locked therefore, the report was submitted by him. Rule 8(2) was complied as the statement of neighbourers were recorded. The evidence in respect of Gupta Vidyalaya has been obtained against the fact.
4. A counter affidavit has also been filed by the respondent No. 3 who is landlord of the accommodation. In this counter affidavit the stand taken by the respondent No. 2 has been accepted and supported. Rejoinder affidavits have been filed against these two counter affidavits and the facts stated in the petition have been reiterated.
5. The petitioner has filed a copy of his objection as Annexure-5 and has annexed alongwith it a copy of the site plan of the accommodation in question. He has also filed a copy of the assessment register to prove that the copy of the assessment register as Annexure-1 and 2 to prove that there were two separate accommodations in the tenancy and a school was running in one room and the rent was being paid at the rate of Rs. 6-00 per month. He has also filed a copy of the affidavit of the witnesses which was before the respondent No. 1 to prove that there was a school as Gupta Vidyalaya in one of the accommodation and some photograph to prove that clinic is being run by one of the petitioners in the disputed portion which was previously utilised in running Gupta Vidyalaya. The respondent alongwith the counter affidavit has filed a copy of the Nagar Palika assessment of the disputed house for the year 1987 to 1992 to prove that the tenancy was one and no school was being run by Mamraj Gupta rather it was residential portion.
6. Learned counsel for the petitioner has urged that the main question to be decided was as to whether there were two accommodations and one of them was allotted for non-residential purpose and if so whether the application for declaration of vacancy was maintainable. He has further urged that the respondent No. 1 was misled by taking into consideration the existence of Gupta College in place of Gupta Vidyalaya and there was sufficient evidence on record to prove that the tenancy was of two different units, one for residential purpose on separate rent of Rs. 7.50 per month and the other was for running school on payment of Rs. 6.00 per month and the assessment registers were filed alongwith the affidavit of the witnesses to prove this fact but the respondent no. 1 has not considered these evidence. His further contention is that in release application the landlord was a party and in application for declaration of the vacancy the prospective allottee was the party, therefore, the District Magistrate had no jurisdiction to combine and consolidate the two cases and decide the controversy. His further contention is that there was no vacancy and the Inspector has submitted report ex-parte. Compliance of Rule 8(2) has not been made. Learned counsel for the petitioner has further urged that the respondent No. 1 has not taken into consideration the legal position regarding the applicability of the relevant provisions and has placed reliance on A.I.R 1975, S.C page 1758 on the point that what was dominant intention of the parties that they entered into transaction of lease must be seen. He has also placed reliance on 1983, Vol. (1) A.R.C 13, paragraph 6 for the purpose that the building was used as non-residential Section 12(3) would not apply. He has also placed reliance on 1982 (1) A.R.C page 594. Reliance has also been placed on 1982 Vol. (2) A.R.C page 426 for the purpose that if the vacancy is claimed in one clause of Section 12 it cannot be declared for another clause of the aforesaid section. Reliance has also been placed by him on 1992 (1) A.R.C page 215 to the effect that the Rent Control Officer should have considered the plea raised in the affidavit. He has also placed reliance on 1983 Vol. 2 A.R.C page 478, 1983 A.R.C page 417, 1997 A.R.C.S.N 11 S.C for the purpose of jurisdiction of the Hon'ble High Court under Article 226 of the Constitution of India.
7. Learned counsel for the respondent has placed reliance on the case reported in 1996 (2) Rent Cases page 241 on the point that with regard to the occurrence of vacancy it is to be seen at the time when the proceedings were initiated on the application for allotment being moved and not at the stage of writ jurisdiction.
8. Learned counsel for the respondent Shri Shashi Kant has argued that the finding recorded by the respondent No. 1 is finding of fact and when the premises was found locked there was no option left to the Inspector but to record the statement of the neighbourers and submit report regarding the vacancy and it has been done. Compliance of rule is already there.
9. I have heard the learned counsel for the parties at length and have read the judgment and order of the respondent No. 1 and have also perused the documents filed by the parties with writ petition, counter affidavit etc. From the judgment of respondent No. 1 it is apparent that he has placed reliance on the report of the Inspector dated 25.8.90 in which it was mentioned that the accommodation in question was found locked. He has also placed reliance on the fact mentioned by the Inspector on the basis of the statement of the adjoining owners that initially Mamraj Gupta was residing in that house but now he has shifted to House No. 119/426 which is in the name of his wife, but used to come to see the accommodation in question off and on. It is also apparent from para 5 of the judgment that the prospective allottee has filed copy of the Assessment register of Nagar Mahapalika, Kanpur from 1987-1992 in respect of house No. 119/823 Darshanpurwa in which Mst. Shanti Devi wife of Mamraj Gupta has been shown as owner in possession of the house aforesaid. In para 6 of the judgment it is mentioned that Shanti Devi has filed copy of the Assessment register of 1978-1983 in which one room was in occupation of a Vidyalaya and one room and one Verandah was in possession of Mamraj Gupta. From the judgment it is apparent that the Prescribed Authority has taken into consideration the objection filed by the prospective allottee in which he has stated that Gupta Vidyalaya is being run in House No. 119/412 and not in House No. 119/419 (disputed one). It is also apparent that the land owner Dr. S. Anand has mentioned in his release application that Gupta Vidyalaya was being run in House No. 119/412 which is now locked. The court below has held that Prem Das Gupta has not stated in his affidavit dated 21.7.93 that Gupta College is not being run in House No. 119/412 which is now locked. The Court below has held that Prem Das Gupta has not stated in his affidavit dated 21.7.93 that Gupta College is not being run in House No. 119/412. He has also held that there is no evidence on the record regarding Gupta College or clinic of Dr. Ramraj, Therefore, house given to Mamraj Gupta was a residential one and as his wife has shifted to House No. 119/426, new No. 119/823, therefore, there is vacancy. From the entire judgment it is apparent that the court below has not considered the Assessment register filed by the petitioner to prove that there were two separate accommodations. It is also apparent that the Prescribed authority was not clear in his mind regarding the existence of Gupta College or Gupta Vidyalaya. He was of the opinion that in the accommodation in question some time Gupta College was being run, and it appears also that he placed reliance on the plea taken by the respondent that Gupta College and Gupta Vidyalaya are synonymous name.
10. Apparently the finding recorded by the Prescribed Authority appears to be a finding of fact which normally is not interfered with under Article 226 of the Constitution of India, but as laid down by Hon'ble Supreme Court in Damadi Lal v. Paras Ram in Civil Appeal No. 884 of 1968, decided on 7th May, 1976 that finding of fact arrived at ignoring important and relevant evidence is bad in law and the High Court can set aside such finding. The relevant paragraph of the judgment is as under:—
“It thus appears that the lower appellate court overlooked very material part of the evidence bearing on the question. It is well established that a finding of fact is arrived at ignoring important and relevant evidence, the finding is bad in law. We, therefore, think that the High Court was within its jurisdiction in setting aside the finding of the lower appellate court and restoring that of the trial court on this point.”
11. In another case reported in Ram Babu v. Additional District Judge . Allahabad Rent Cases 1983 2 416., this Court held that finding of fact based on irrelevant consideration or material is not binding in writ and is not a finding of fact. The relevant para in the judgment is para 7 which is quoted hereinbelow:—
“It is well settled that the finding in regard to the bona fide need is a finding of fact. The principle laid down in the cases cited by the learned counsel for the respondent are well settled. The above cases would fully apply to case where the findings have been recorded by a court on the basis of the relevant consideration and on the material on record. If, however, a finding of fact is based on irrelevant consideration, of material which is not in existence at all, then in my opinion, it would not be a finding of fact binding on the High Court, under Article 226 of the Constitution of India.”
12. As in the instant case finding which has been recorded by the Prescribed Authority is without consideration of material evidence available on the record, that is, the Assessment Register filed by the petitioner and on consideration of irrelevant material, i.e confusion created by the respondents that Gupta College and Gupta Vidyalaya are the synonymous name of the same institution, I am of the view that this finding of fact cannot be said to be a finding of fact on the basis of relevant material which will amount to finding given by the Court without considering the material available on the record. Therefore this finding must be quashed. As is apparent from the pleadings as well as from the arguments of the learned counsel for the parties, the question was as to whether the application under Section 12(3) of the Act was maintainable or not because the accommodation in question was given for residential purpose. The petitioner's case was that there were two separate accommodations one for residential purpose and the other for non-residential purpose. In this petition the petitioner has mainly confined his argument and pleadings with regard to non-residential portion i.e one room in which Gupta Vidyalaya was being rim. His contention is that actually there were two accommodations which were given on lease, one for residential purpose for which a separate rent was fixed and other for non-residential purpose having a separate monthly rent. The contention of the other side is that one receipt was being issued, therefore, it was one accommodation and since admittedly in one portion the petitioner's family was residing and the second room which is said to be used for running Gupta Vidyalaya was actually a drawing room of the accommodation in question, therefore, the accommodation in question was used for residential purposes and not for non residential purpose and thus, the application was maintainable. Apex Court of the country has held in case of Dwarika Prasad v. Dwarika Das Prasad . 1976 1 SCC 128, that if a composite lease was granted and has plurality of purpose, the decisive test is the dominant purpose of the demise. Therefore, the contention of learned counsel for the petitioner is that when from the Assessment register it was apparent that one room was given for running a school a dominant intention of the lease was for a non-residential purpose i.e to run school which has not been considered in this case. It is apparent from the judgment that this point has not been looked into by the Prescribed Authority. It appears from the judgment that the Prescribed Authority has taken into consideration the existence of a school or college or clinic at the time when he was deciding the application in question. He had not taken into consideration the applicability of the provisions of Section 12 which was to be seen on the date when original lease was created and not subsequent to that or not on the date of petition or during the pendency of the proceeding. Here the question for consideration was as to whether the lease was granted for running a school or for residential purpose. Therefore, when a composite lease has been granted, it was duty of the Prescribed Authority to have considered the document relating to payment of rent and other affidavit filed in the shape of evidence on this point which has not been considered by the Prescribed Authority. In case the Court came to the conclusion that the lease was for non-residential purpose then the question as to whether the application under Section 12(3) was maintainable or not is to be seen. As held by this Court in the case reported in Mohan Lal v. VI Addl. District Judge, Saharanpur, that in case the building is found to be used for non-residential purpose, it could not be said that Section 12(3) could apply to the building. The relevant portion of that paragraph is quoted herein below:—
“It is surprising that the Revisional authority did not refer to the report of the Inspector and the documentary evidence on record showing that the building was being used for non-residential purpose at least since 1964. On the other hand he relied upon the original rent deed and read it as it was let out for residential purposes. The rent deed is Annexure X to the writ petition. The purpose of letting has not been mentioned in it. In paragraph 8 it was mentioned that there was a kitchen. Existence of kitchen in any building will not determine the purpose for which it was let out. Admittedly there was no latrine bathroom, electric or water connection. Under the circumstances in case the building is found to be used for non-residential purposes since 1964 it could not be said that Section 12(3) could apply to the building”.
13. In the instant case the Prescribed Authority has not considered the documents in respect of existence of school in the Assessment Register and the other certificate and affidavit filed by some witnesses that they were students of the Gupta Vidyalaya in past. As such the finding of the Prescribed Authority placing reliance on the report of the Inspector and ignoring the material evidence amounts a finding based on non-consideration of the evidence available on the record. As such applicability of the provisions of Section 12(3) can only be made when a clear cut finding after consideration of the material evidence available on the record which has not been done in this case as held by a Division Bench of this Court in Smt. Kanti Khare v. IIIrd Addl. District Judge Allahabad, it was held that the report of the Rent Control Inspector in a proceedings under Sections 12 and 16 can not be taken as gospel truth and the order passed merely on basis of that report without giving opportunity to file objection to the applicant for allotment will be void and principles of natural justice also require giving of such an opportunity to the applicant for allotment. Applying this principle for a person who is the existing tenant I am of the view that notice should have been given to the petitioner regarding the inspection to be made by the Inspector. In this very case the applicability of Section 12(3) has been discussed in para 27 of the judgment. The relevant para of the judgment is quoted herein below:—
“A residential building is a building which is used for residential purpose i.e in which the people reside or dwell. The word “residence” is equivalent to “residential” in contradiction to “business” and has reference to the use or mode of occupancy to which the property may be put. A building used as a place of abode, and in which no business is carried on, is used for residence purpose. In India, it is not unknown that a building is used both for residence as well as for commercial purpose. In such an event the controversy required to be decided is as to what is dominant or the main purpose. It is the dominant purpose which could determine the nature of building. Section 12(3) could apply only to a case of residential and not non-residential. Hence a distinction has to be always kept in mind between two buildings applying sub-section (3) of Section 12.”
14. Learned counsel for the respondents has relied on a case of Mahipal Singh v. District Judge, Allahabad (supra) specifically in para 11 of the aforesaid judgment where the Court held that occurrence of vacancy has to be seen at the time when the proceedings were initiated on application for allotment being moved, and not at this stage after more than a decade. His contention is that the Prescribed Authority was justified in taking into consideration that on the date of application there was no school known as Gupta Vidyalaya in the accommodation in question.
15. After discussing the entire arguments and the decisions cited by learned counsel for the parties I am of the view that it is a fit case in which order of the Prescribed Authority must be quashed and the matter may be sent back to the Prescribed Authority to reconsider the matter keeping in view the dominant intention of the parties for which purpose the accommodation in question was let out and as to whether there were two separate accommodations and as to whether any portion of the tenancy was for non-residential purpose when it was initially allotted and then to apply the maintainability of the application under Section 12(3) of the Act. Accordingly, the writ petition is allowed. The order of the Prescribed Authority dated 22.12.95 is hereby quashed. The case is being sent back to the Rent Control and Eviction Officer to decide it afresh keeping in view the observations made by this Court in this judgment. Parties shall bear their own costs.
16. Petition Allowed.