S.U. Khan, J. - (1.) THIS writ petition is in between two learned Advocates of this Court. The Court tried its level best to persuade the parties to enter into some compromise. On the request of the Court, Sri Ravi Kant and Sri Ravi Kiran Jain learned Senior Advocates, appearing for respective parties also tried to persuade their clients to explore the chances of compromise. The parties after showing some initial inclination for compromise ultimately refused to settle the matter. Hence, this writ petition is being decided on merit. This is tenant's writ petition directed against the order dated 15.12.1998 Annexure -10 to the writ petition passed by R.C. and E.O. (I), Allahabad in Case No. 8 of 1994, declaring vacancy of tenanted building No. 15 -A Sardar Patel Marg, Allahabad.
(2.) THE property in dispute was allotted to the petitioner at the rent of Rs. 70/ - per month on 27.7.1989. In the allotment application petitioner had stated that he required the building in dispute for residential purposes and for carrying on the profession of advocacy. In the operative portion of the allotment order it was directed that the need of the petitioner for residential portion 15 -A Sardar Patel Marg, Allahabad was genuine and bona fide hence the residential building in dispute was allotted to the petitioner. It is not disputed that in December, 1993 tenant petitioner alongwith his wife occupied a house numbered HIG 28 situate at 3 Circular Road, Allahabad and he resided therefor about 1 -1/2 years and thereafter again shifted back to the house in dispute. During this period of about 1 -1/2 years tenant continued to maintain his office regarding his profession of advocacy in the building in dispute. The petitioner asserted that his wife was pregnant and ill in the late 1993 and doctor had advised her to live in an open place hence the house at Circular Road, Allahabad was taken on rent by him as a temporary measure which he left after about 1 -1/2 years and shifted back to the house in dispute. R.C. and E.O. held that the petitioner even though stated that he had shifted back to the residential house in dispute, however, he did not state that he had completely left the house at Circular Road, (probably R.C. and E.O. meant that the petitioner failed to show that he had handed over the possession of the said house to its landlord). The R.C. and E.O. by impugned order held and declared the house in dispute to be vacant under section 12(3) of U.P. Act No. 13 of 1972. In the present situation, section 12(1)(c) is also relevant. Both the subsections are quoted below: 12(1)(c): - -"A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere." 12(3): - -"In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under the tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Explanation - -For the purpose of this sub -section - (a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee; In : AIR 1995 SC 10 which was a case under Himanchal Pradesh Rent Control Act it was held that "clear and unequivocal words employed in the said provision give no scope for a tenant to say that the accrued entitlement or right of the landlord to get back possession of the residential building from him under the provision is lost when the (tenant) parts with possession of the residence which had come to him in one or other ways referred to therein" (para 5). Words of section 12(IV) of Himanchal Pradesh Rent Control Act are almost similar to the words of section 12(3) of U.P. Rent Control Act. In : AIR 2003 SC 650, it has been held that" An incidental, a secondary or an authorized user of the premises for purposes other than residence would not take the premises out of the meaning of the expression 'the premises let for residential purposes'." (para 9). This case relates to Delhi Rent Control Act. Building in dispute was allotted for residential purposes or at least primarily for residential purposes. Judicial notice may be taken of the fact that advocates in their residential accommodations normally maintain their offices in part of the accommodation. It is perfectly permissible even when the building is let out to the advocate for residential purposes. Use of a portion of residential building for office purposes by an advocate does not render the user of the whole premises as for non -residential purposes.
(3.) IN my opinion, therefore, the continuance of the office between 1993 to 1995 in the building in dispute is not much material to decide the question of vacancy. The main thing to be decided in this regard is as to whether taking of an alternative residence for a period of about 1 -1/2 years by the petitioner caused vacancy under section 12 or not.;