The Allahabad High Court has held that the appointment of a Commissioner for local investigation under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 cannot be claimed as a matter of right, and does not become mandatory merely because the question it is sought to prove goes to the root of the adjudicating authority's jurisdiction.

The Court held that a commission is a discretionary aid to adjudication and cannot be pressed into service to collect evidence which a party is otherwise required to prove for itself.

Dr. Justice Yogendra Kumar Srivastava held,

“Equally significant is the use of the expression "may issue a commission" in Section 75 CPC as well as Order XXVI Rule 9. The language employed is clearly enabling and discretionary, not mandatory. Consequently, no litigant possesses a vested or enforceable right to insist upon appointment of a Commissioner merely because an application has been made. Whether a local investigation is requisite or proper is a matter resting exclusively within the judicial discretion of the adjudicating authority, to be exercised having regard to the nature of the controversy, the evidence already available on record and the necessity of such investigation for effective adjudication.”

Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 exempts a newly constructed building from the operation of the Act for a fixed period running from the date its construction is completed, and lays down objective tests for fixing that date.

Section 34(1)(c) of the Act, read with Section 75 and Order XXVI Rule 9 of the Code of Civil Procedure, 1908, empowers the Prescribed Authority and the Appellate Authority to appoint commissioner for local investigation, but only where the authority considers such investigation “requisite or proper” for elucidating a matter in dispute.

Petitioner is the tenant of a ground-floor shop at Old Kutlupur, Chhipitola, Rakabganj Ward, Agra. The landlord, respondent no. 1, had instituted proceedings under Section 21(1)(a) of the Act seeking release of the shop. The tenant submitted that the shop formed part of a triple-storeyed RCC building reconstructed between 2000 and 2002 after the old structure was demolished, and was therefore a new construction exempt from the Act.

The tenant sought appointment of an Advocate Commissioner, twice, to inspect the building before the Prescribed Authority, which rejected the application by order dated 27.11.2024. The Appellate Authority also rejected the appeal by order dated 11.09.2025 on the view that adequate documentary evidence of the age and nature of the construction was already on record. These two orders were challenged by the tenant before the High Court under Article 227.

The Court held that a commission does not issue merely because a material fact is disputed, however substantial the dispute. It held that the power is discretionary, to be invoked only where a local investigation is requisite or proper for elucidating a matter that cannot otherwise be resolved on the existing record.

On the tenant's argument that the applicability of the Act goes to the root of matter as it will decide the jurisdiction of the Prescribed Authority, the Court held:

“The significance of the issue cannot determine the procedure by which it is to be adjudicated. Whether the premises are exempt from the operation of the Act is undoubtedly a jurisdictional question; nevertheless, it remains a question to be decided by the competent authority upon appreciation of the legally admissible evidence produced by the parties. The appointment of a Commissioner is only a procedural aid to facilitate adjudication where necessary and cannot be elevated to a mandatory requirement merely because the issue involved is jurisdictional in nature.”

The Court also rejected the distinction the tenant sought to draw between ascertaining the building's physical features and collecting evidence, finding it devoid of substance, since the object of the proposed inspection was to prove the fact of new construction on which his cases depended.

“Once the purpose of the commission is to prove a fact which the applicant is otherwise required to establish by leading legally admissible evidence, the exercise inevitably assumes the character of evidence-gathering, which lies beyond the permissible scope of Order XXVI Rule 9 CPC.”

Since the tenant had not produced even a prima facie basis for the plea of new construction, the Court held, he could not fall back on a local investigation to make good the deficiency in his own evidence. Accordingly, the discretion exercised by the authorities was upheld and the writ petition was dismissed.

Case Title: Romil Jain v. Ashok Kumar Jain and another 2026 LiveLaw (AB) 395

Case Citation : 2026 LiveLaw (AB) 395

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