Full Judgment
J.C. Gupta, J.
1. This writ petition is directed against the order dated 23.9.1993, Annexure-9 to the writ petition, passed by respondent No. 1, the Rent Control and Eviction Officer, Kanpur Nagar, declaring vacancy in respect of the disputed accommodation.
2. The dispute relates to the ground floor accommodation in premises No. 10/215. Khalasi Line, Kanpur Nagar, whereof admittedly the petitioner is tenant and respondent Nos. 2 to 5 are landlords. It is also an undisputed fact that the petitioner has been in occupation in the said accommodation for the last more than 40 years. In the year 1989, an application under Section 16 (1) (b) of the U. P. Act No. XIII of 1972, was moved from the side of the landlords before the R.C, and E.O. wherein it was alleged that a deemed vacancy has occurred on account of the fact that the petitioner has acquired a residential accommodation in the same city of Kanpur, which has been constructed in plot No- 1072, Nai Basti, Rawatpur, Kanpur. A report from the Rent Control Inspector was called for who after inspection, submitted a report that the petitioner has been in occupation of the disputed accommodation since long as tenant and as such the same was not vacant. Notices were issued to the concerned parties. Objections were filed on behalf of the landlord. However, by the order dated 26.9.1990 the R.C. and E.O. rejected the landlord's application holding that plot No. 1072 has been purchased by the petitioner in the name of his wife wherein he has raised only a small shop in which 'Aata Chakki' was being run and there was no residential accommodation in the said plot and since no residential building has been built by the tenant or his wife, no vacancy has occurred. This order became final. It further appears thatthereafter on 9.6.1992. another application under Section 16 (1) (b) was moved on behalf of the landlords and it was alleged that the petitioner has substantially removed his effects from the disputed accommodation as he has constructed a residential house in plot No. 1072, Nai Basti. Rawatpur, Kanpur. The wife of the petitioner's son was also burnt alive in the aforesaid accommodation arid a case under Section 498A/304B, I.P.C. was registered. Again the Rent Control Inspector made an inspection and submitted a report to the R.C. and E.O. opining that no vacancy appeared to have occurred. Objections were filed on behalf of the landlords. Parties led evidence and this time by the impugned order dated 24.9.1993 the R.C. and E.O. has declared the accommodation in question vacant holding that the petitioner has constructed a residential house in plot No. 1072. Nai Basti where he has been living with his family and has simply retained the accommodation in question by keeping some of his house-holds goods therein and, therefore, a deemed vacancy under Section 12 (1) (c) of the Act has occurred.
3. The landlords in their counter-affidavit have alleged that the present application for release was moved on different grounds. It was reiterated that the petitioner has built a residential accommodation in Rawatpur and has shifted there and only to harass the landlord he has kept certain goods in the disputed accommodation. Recently when the daughter-in-law of the petitioner was burnt in the said accommodation, an application on behalf of the landlady dated 30,8.1991 was made to the Station Officer who gave a report that the petitioner was living in the accommodation at Rawatpur, it may not be out of place to mention here that no affidavit of the Station Officer was filed and the report further indicated that the case registered against the petitioner and others under Section 304B/498A, I.P.C. was not found to be true and final report was submitted.
4. I have heard learned counsel for the parlies and have also gone through the record.
5. Learned counsel for the petitioner firstly urged that the R.C. and E.O. has wrongly held that vacancy under Section 12 (1) (c) of the Act has occurred, it is contended that under the aforesaid provision, the tenant of a building shall be deemed to have ceased to occupy the building or a part thereof. If he as well as members of his family have taken up residence, not being temporary, elsewhere. He submitted that the building in question was inspected by the Rent Control Inspector and occupation of the tenant in the building in question was found. It was further reported by him that the petitioner and his family members were still residing in the disputed accommodation. It has also been argued that before attracting clause (c), there should be a clear finding that the tenant as well as members of his family have taken up residence elsewhere permanently and it should not be a temporary one. The R.C. and E.O. has not recorded any clear finding that the petitioner has taken up residence at Rawatpur permanently and therefore, in the absence of the same, provisions of Section 12 (1) (c) could not be applied to.
6. The above submission of the learned counsel for the petitioner has substance and cannot be brushed aside. In the present case, the R.C. and E.O. has held that the fact that as per the police report, the wife of the petitioner's son died an unnatural death due to burns, in the accommodation No. 1072, Rawatpur was conclusive of the fact that the petitioner and his family members were residing there. This conclusion of the R.C. and E.O. Is manifestly erroneous. On an application moved by the landlady, the S. O. of the police station concerned has simply made an endorsement to the effect that the wife of the petitioner's son had died in House No. 1072, Nai Basti where she and other family members were residing and a case under Section 498A/304B was registered in which final report has been submitted on account of want of evidence. Neither the affidavit of the Station Officer nor copies of any site plan or spot inspections were filed before the R.C. and E.O. Apart from the fact thatthis endorsement of the S. O. was not readable in evidence, the same was not conclusive for holding that the petitioner as well as members of his family were permanently residing there. It was the specific case of the petitioner that in plot No. 1072. only a small shop with a tin-shed behind have been constructed. The shop was being used as 'Aata Chakki' whereas the tin-shed was being used for keeping articles in connection with the 'Aata Chakki', and it was not a residential accommodation. Since final report was submitted in the case and no affidavit of any person who had made inspection of the aforesaid accommodation during the investigation of the case registered at the police station, was filed, it could not be interfered conclusively that the petitioner has built a residential house in the aforesaid plot and has taken up his residence there permanently. The R.C. and E.O. has also drawn inference from the invitation card of the reception given in connection with the marriage of petitioner's son. It is of common knowledge that such functions are often held in open place, thus the mere fact that some function was held in plot No. 1072, it could not be inferred that the petitioner as well as all the members of his family have taken up residence permanently in plot No. 1072. The R.C, and E.O. failed to take notice of the fact that only in the year 1990, her predecessor had already held in the earlier release application that in the aforesaid plot at Rawatpur only a small shop has been raised and there was no residential accommodation therein. The R.C. and E.O. therefore, was required to record specific finding as to what changes have been brought into existence in the accommodation in question after the passing of the earlier order rejecting the first release application moved on behalf of the landlords. Neither any Ration-card nor Voter List or any other document was brought on record to support the impugned order that the petitioner has shifted his residence from the accommodation in question to the accommodation in plot No. 1072 permanently. The impugned order of the R.C. and E.O. Is based on conjectures and surmises. He even did not think it necessary to make an inspection of the two accommodations himself in order to find out the truth. For the above reasons, the impugned order of the R.C. and E.O. declaring vacancy under Section 12 (1) (c) cannot be upheld.
7. Learned counsel for the respondents invited the attention of the Court to sub-section (3) of Section 12 which states that in the case of a residential building. If the tenant or any member of his family builds or otherwise acquires in a vac.ant state or gets vacated a residential building in the same city. Municipality, Notified area or Town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. It is argued by the learned counsel for the respondents that since the petitioner's wife has acquired the plot of land and has built a residential building therein, the tenant should be deemed to have ceased to occupy the tenanted accommodation in question. A perusal of the above provision would indicate that the deeming provision could be attracted only where the tenant or any member of his family has built a residential building in the same city. The clause will not be attracted to a case of acquisition of a non -residential building by the tenant or any member of his family. The crucial question, therefore, for determination before the R.C. and E.O. was whether the constructions raised in plot No. 1072. Rawatpur could be classified as 'residential building' within the meaning of sub-section (3) of Section 12 of the Act. As already pointed out above on an earlier occasion the R.C. and E.O. while refusing to declare vacancy had come to a positive finding that in the aforesaid plot, only a shop has been constructed and no residential building existed there. Whether after the rejection of the said order, any other addition has been made in the said shop and whether a residential building within the meaning of sub-section (3) of Section 12 has been built by the tenant or any member of his family, were the vital questions before the R.C. and E.O. but they have not been gone into by him. In the absence of any positive finding on these questions Section 12 (3) cannot be applied to.
8. For the above reasons, the impugned order of the R.C. and E.O. cannot be up-held and the case is remanded back to the R.C. and E.O. to decide the question of vacancy afresh in accordance with law and in the light of the observations made above, after giving a fresh opportunity of hearing to the parties concerned as by this time many subsequent changes may have come into existence. Since the order of vacancy has been quashed, the release order made in favour of the landlords pursuant to the vacancy order also topples down and the same also stands quashed.
9. For the reasons stated above, this writ petition is allowed.
10. The parties are directed to bear their own costs.