Sudhir Narain - (1.) THIS writ petition is directed against the order dated 1-2-90, passed by respondent no. 1, declaring the disputed premises as vacant.
(2.) THE petitioner is a tenant of two rooms, stare, varandah, court yard and latrine in premises no. 133, 175, Transport Nagar, Kanpnr of which respondent no, 2 is the Landlady. Respondent no 2 filed an application for release of the disputed accommodation for her personal need on the ground that she required it for the need of her family members. It was alleged that the tenant had purchased house no. 133/S-1, Rathupurwa Kanpur in the name of his wife from one Shiv Devi and he had shifted in the said house. Notice was issued to the petitioner on the application filed by respondent no. 2. He filed objection to the said application and it was denied that he had actually vacated the disputed accommodation. THE accommodation was used for residential purpose and for the purpose of storing the goods for using and utilising the shop and for loading and unloading of the goods of the customers required to be transported from one place to another. Respondent no. 2 filed affidavit of Smt. Shiv Devi, the owner of house no. 133/S-1 Kathupurwa, Kanpur, a copy of which has been annexed as C.A. 7 to the counter affidavit wherein she stated that she had sold house no. 133/S-l, Rathupnrwa, Kanpur to one Smt. Rama Devi on 4-8-1987 and delivered its possession. The petitioner is utilising the first floor for residential purpose and ground floor of the said house for commercial purpose. The Rent Control Inspector submitted a report that the disputed house was locked. The tenant has shifted to house no. 133/S-l, Rathnpurwa, Kanpur and he has removed his household goods from the disputed house. Respondent no. 1 by his order dated 1-2-90, taking into consideration the fact that the wife of the petitioner had already purchased house no. 133/S-7 Rathupurwa, Kanpur and has shifted in that house and residing there since 1987, declared the disputed accommodation, as vacant. I have heard learned counsel for the parties.
(3.) LEARNED counsel for the petitioner submitted that the accommodation in question was being used for non-residential-purpose and, therefore, it cannot be deemed as vacant under the provisions of section 12 (3) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as the Act). Sub-section (3) of section 12 of the Act provides that in case of residential building if the tenant or any member of his family purchases or otherwise acquires in a vacant state or gets vacated a residential building in the same city in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Admittedly, the house has been purchased in the name of wife of the petitioner in the year 1987 and the petitioner is residing in the said house with his family. The contention of learned counsel for the petitioner is that the disputed accommodation was taken for residential as well as for none- residential purposes and at present it is being used for non-residential purpose and, therefore, sub-section (3) of section 12 of the Act is not applicable. This provision is applicable only when a person is tenant of a residential building and acquires in a vacant state another residential building and the second contention of learned counsel for the petitioner is that even if the building was taken for residential purpose but is being used for non-residential purpose, sub-section (3) of section 12 of the Act is not applicable. The use of the building has to be seen at the time when the District Magistrate passed an order of declaration of vacancy. He contended that the petitioner is using this disputed premises for storing the goods of the customers and, such useris for commercial purpose and not residential purpose.;