Allahabad HC: No Right to Commissioner Merely Because New Construction Plea Is Taken in Rent Control Proceedings

A tenant's bid to appoint an Advocate Commissioner to prove a newly constructed building exemption under the U.P. Rent Control Act failed at every level, including before the High Court.

The High Court of Judicature at Allahabad has dismissed a petition filed under Article 227 of the Constitution of India by a tenant who sought appointment of an Advocate Commissioner for local investigation of a disputed shop in Agra. Hon'ble Dr. Justice Yogendra Kumar Srivastava, sitting singly, held that the power to issue a commission for local investigation under Section 34(1)(c) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 read with Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure, 1908 is entirely discretionary and cannot be claimed as a matter of right. The Court found that the petitioner's real object was to gather fresh evidence to support a plea of new construction exemption — a purpose that falls squarely outside the permissible scope of a commission for local investigation.

The Dispute Before the Court

Property nos. 32/1/6 and 32/1/7 at Old Kutlupur, Chhipitola, Rakabganj Ward, Agra, originally formed part of a larger property belonging to Umrao Singh and his brothers. Pursuant to a family settlement dated 1 July 1998, these sub-numbers fell to the share of respondent no. 1, Ashok Kumar Jain.

According to the petitioner, Ashok Kumar Jain thereafter vacated and demolished the old dilapidated structure on the property and constructed a triple-storeyed RCC building during the years 2000–2002. The disputed shop bearing no. 32/1/6, on the ground floor of that building, was let out to the petitioner's predecessor-in-interest in the year 2002.

In 2020, Ashok Kumar Jain filed a release application under Section 21(1)(a) of the Act, registered as P.A. Case No. 17 of 2020 before the Prescribed Authority, seeking eviction of the petitioner from the shop. The petitioner's defence was that the building was a new construction falling under Section 2 of the Act, which exempts newly constructed buildings from the operation of the Act for a period of forty years where construction is completed on or after 26 April 1985. If accepted, this would have rendered the release proceedings themselves incompetent.

To substantiate this defence, the petitioner applied to the Prescribed Authority for appointment of a Commissioner to inspect the property and determine the nature and age of the construction. The Prescribed Authority rejected that application on 27 November 2024. The release application itself was allowed by judgment dated 19 December 2024.

The petitioner then preferred Rent Control Appeal No. 17 of 2025 before the Additional District Judge, Court No. 19, Agra. During the appeal, he renewed the prayer through Application No. 17-C. The Appellate Authority rejected it on 11 September 2025, recording that adequate documentary evidence on the age and nature of the construction was already on record and that no case for a commission had been made out. Both rejection orders were challenged before the High Court under Article 227.

The Legal Question

The Court framed a single question: whether the authorities below committed any jurisdictional error or material illegality in rejecting the petitioner's applications for appointment of a Commissioner under Section 34(1)(c) of the Act read with Section 75 and Order XXVI Rule 9 CPC.

Section 2(2) of the Act exempts a building from the Act's operation during a period of forty years from the date of completion of construction, where construction is completed on or after 26 April 1985. Explanation I provides that construction is deemed completed on the date it is reported to or recorded by the local authority, or on the date the first assessment comes into effect, whichever is earliest. Importantly, the Explanation defines “construction” to include any new construction in place of an existing building which has been wholly or substantially demolished.

Section 34(1)(c) grants the Prescribed Authority and Appellate Authority the same powers as a Civil Court under the CPC for inspecting a building or issuing a commission for local investigation. Section 75 CPC authorises courts to issue commissions for local investigation, while Order XXVI Rule 9 limits that power to situations where the court considers local investigation “requisite or proper” for elucidating a matter in dispute.

How the Bench Reasoned

Justice Srivastava drew a clear line between the substantive enquiry under Section 2 and the procedural power under Section 34. The former prescribes objective statutory tests for determining whether a building qualifies as a new construction. The latter merely equips authorities with procedural tools to aid adjudication where the evidence already on record is insufficient. The Court held that these two provisions operate in distinct fields and must not be conflated.

The Court emphasised the discretionary character of the power. Both Section 75 CPC and Order XXVI Rule 9 use the expression “may issue a commission,” which is enabling and not mandatory. No litigant, the Court said, possesses a vested or enforceable right to insist upon appointment of a Commissioner merely on the ground that a material fact is disputed.

The petitioner had argued that the proposed inspection was not to collect evidence but only to allow the authorities to ascertain physical features of the existing structure — RCC pillars, beams, slabs — that would objectively demonstrate fresh construction. The Court rejected this distinction as devoid of substance. The Commissioner's brief, on the petitioner's own showing, was to establish that the building was newly constructed and therefore exempt from the Act. That purpose is, the Court said, inherently evidence-gathering and falls outside the permissible scope of Order XXVI Rule 9 CPC.

The Court also rejected the argument that because the applicability of the Act is a jurisdictional question going to the root of the Prescribed Authority's powers, a commission was mandatory to resolve it. The significance of an issue, it held, cannot determine the procedure by which that issue is to be adjudicated. A jurisdictional question remains a question to be decided on legally admissible evidence produced by the parties; a Commissioner's report is a procedural aid, not a precondition for deciding a jurisdictional plea.

On the Appellate Authority's rejection, the Court noted that the Appellate Authority had recorded that the landlord had placed municipal assessment documents on record and that the tenant had failed to adduce any evidence to the contrary. The petitioner had challenged the reliability of those municipal records — asserting that the RCC structure was first assessed only from 1 April 2016 and that the recital recording 1980 as the year of construction was erroneous. The Court declined to go into that challenge. The limited question before it was whether the material before the authorities was sufficient for them to form the opinion that local investigation was unnecessary. Questions about the correctness or evidentiary value of the municipal records were matters for appreciation in the substantive proceedings, not a basis to set aside a discretionary procedural order under Article 227.

The Court placed reliance on a consistent line of authority from this Court. In Sanjay alias Mathura v. Onkar Arora, it was held that the power to appoint a Commissioner cannot be exercised to enable a litigant to collect evidence, fill lacunae, or embark upon a fishing or roving enquiry. Earlier decisions in Ranbir Singh Sheoran v. VIth Additional District Judge, Muzaffarnagar, Son Pal v. Vth Additional District Judge, Aligarh, and Avinash Chandra Tewari v. A.D.J., Court No. 3, Unnao had all reiterated that appointment of a Commissioner is not a matter of right and that the power is to be exercised only where local investigation is necessary for proper adjudication of the controversy.

The Court also addressed the scope of Article 227 jurisdiction directly. Supervisory jurisdiction under Article 227 is not appellate. Interference with a discretionary or procedural order is warranted only where the authority has acted without jurisdiction, failed to exercise jurisdiction, acted in patent disregard of settled principles, or where the order suffers from manifest perversity or patent illegality. The mere possibility that this Court might have exercised the discretion differently cannot justify interference.

Applying those parameters, the Court found that the Prescribed Authority and the Appellate Authority had both exercised their discretion after considering the pleadings, documentary material and the governing statutory framework. Their view was consistent with settled law. There was no jurisdictional infirmity, perversity or patent illegality in the impugned orders.

Outcome

The petition was dismissed on 3 July 2026. The Court made no order as to costs. The two impugned orders — the Prescribed Authority's order dated 27 November 2024 and the Appellate Authority's order dated 11 September 2025 — were upheld. The release proceedings, in which the Prescribed Authority had already allowed the release application by judgment dated 19 December 2024, will continue to operate.