- (1.) D. K. Seth, J. Leave is granted to Mr. Vinod Sinha, learned Counsel for the petitioner to amend the cause title so as to convert this petition into one under Ar ticle 227 of the Constitution of India.
(2.) IN the present case the petitioner has challenged an order passed under Sec tion 16 (1) of U. P. Act, 13 of 1972 in case No. 32 of 1999 by the Rent Controller, Allahabad, since been affirmed in revision being Rent Control Revision No. 36 of 2000 by the learned Additional District Judge, 1st Court, Allahabad through its order dated 31st January, 2000. The op posite party Nos. 3 and 4 had filed a peti tion under Section 16 (1) since been num bered as case No. 32 of 1999 before the Rent Controller for eviction of the petitioner-tenant on the ground that he has ceased to occupy the building by reason of Section 12 (3) of the Act 13 of 1972. It was contended in the said petition that two sons of the tenant had acquired vacant possession of building and as such the provision of Section 12 (3) of the said Act is attracted. This petition was contested by the tenant by filing affidavit denying the claim of the landlord. The Rent Controller had relied on the enquiry reports and the materials placed before him and had decided the questions against the tenant by this order dated 3rd January, 2000. The revision thereout was dismissed as not maintainable on the ground that the im pugned order was not a final order and it is not a case decided. Mr. Vinod Sinha had argued on behalf of the petitioner that in order to attract the application of sub- section (3) of Section 12 of the said Act, two conditions are to be fulfilled namely- (a) that a mem ber of family ordinarily resides with the tenant and (b) that he is fully dependent on the tenant. In the case of Triveni Pratap Singh v. Smt. Gauri Ghakravarty and others, 1977 ARC 307, this Court have held that both these conditions are to be ful filled in order to attract such provisions. But the Full Bench in the case of Smt. Ram Devi Shakhya and anther v. First Addl. Dis trict Judge, Lucknow and another, 1981 ARC 305, in paragraph 16 had held that it is not necessary that a person should both be normally residing with the tenant as well as be wholly dependent on such tenant before his acquiring another building will cause vacancy. The decision of the Full Bench was considered by the Supreme Court in the case of Harish Tandon v. Addi tional District Magistrate, Allahabad and others, 1995 (25) ALR 184 (SC), wherein the decision of the Full Bench was not approved. In an earlier decision to that of Supreme Court the learned Single Judge of this Court had held in the case of Syed Mazhar Mustafa Jafri and another v. Rent Control and Eviction Officer, Allahabad and others, 1992 (19) ALR 3 (Sum): 1991 (2) ARC 427, that if one of the conditions is fulfilled, the provision is attracted. Ac cording to Mr. Sinha, the decision of the learned Single Judge has since been whit tled down by reason of the observations made by the Supreme Court in the case of Harish Tandon (supra ). He had also relied on the decisions in the case of Mohammed Azeem v. District Judge, Aligarh and others, 1985 (11) ALR 358 (SC) ; Thakur Din v. District Judge, Kanpur and others, 1984 UPRCC 389; Som Nath Seth v. Ilndaddl District Judge, Rampur and others, 1981 ARC 82 and Prem Raj Gupta and anotherv. Rent Control and Eviction Officer, Kanpur and others, 1998 (32) ALR 539, and con tended that since the sons of the tenant were not fully dependent on the tenant that they had not been normally residing with the tenant therefore, the said provisions cannot be attracted. He next contends that in fact there is nothing to show that the sons of the tenant had been residing normally with the tenant. Accord ing to him it is for the landlord to prove in order to take advantage of Section 12 (3) of the said Act that the ingredients thereof had been satisfied. In the absence of any such proof the order cannot be sustained.
(3.) MR. Sunil Ambwani appearing on behalf of the opposite parties on the other hand contends that the proceeding being a summary procedure, this Court is not sup posed to enter into the finding of fact arrived at by the Rent Control Authority, unless it is shown that the finding is per verse. He had relied on the materials that had been taken into consideration by the authority concerned and had pointed out that there were sufficient materials to come to the conclusion in one or other way. He had further pointed out that the decision was on the basis of the affidavit and it is a question of belief or disbelief. Since the authority had considered the case on the basis of the materials on record, this Court even of a different view cannot interfere with such finding when one or the other finding could be arrived at on the basis of such materials. He further contends that by reason of the Full Bench decision cited by MR. Sinha namely the case of Ram Devi Shakhya (supra), it is no more res integra. Now it is settled principle of law that if any one of the ingredient is satisfied, the mischief of Section 12 (3) of the said Act is attracted. The position stands clarified in the decision of Syed Mazhar Mustafa Jafri (supra ). The decision in the case of Harish Tandon (supra), by the apex Court cannot be said to have whittled down the decision of the learned Single Judge in Syed Mazhar Mus tafa Jafri (supra), or that of the Full Court in view of the decision in the case of Sreenivasa General Traders and others v. State of Andhra Pradesh and others, 1983 (4) SCC 353 ; Shiv Kumar v. Jawahar Lal Verma and others, 1988 (14) ALR 633 (SC) and State of Punjab v. Baldev Singh, 1999 " (6) SCC 172, the observation made by Supreme Court cannot eclipse the decision of the Full Bench in respect of a local Act unless it is expressly and con sciously decides the issue. In the decision in the case of Harish Tandon (supra), the Apex Court has not decided the issue and had made an observation in a context when the apex Court had recorded that it was not necessary to go into the question. As such the observation made therein cannot have any impact on the decision of the Full Bench that any one of the ingredient, if satisfied, would attract the mischief of Sec tion 12 (3 ). He had further pointed out from the materials on record that there are sufficient materials to arrive at the finding. He further contended that the mischief is attracted as soon the acquisition con templated in the said provision is com pleted. Subsequent shifting of the member of the family after acquisition would not mean that he does not ordinarily reside with the tenant. The effective date is the date on which the acquisition is made. In such circumstances, according to him the petition should be dismissed. I have heard both the Counsel at length.;