Anjani Kumar, J. - (1.) Petitioner, Smt. Shanti Devi, by means of present writ petition under Article 226 of the Constitution of India, challenges the order dated 22nd October, 2002, passed by the City Magistrate/Rent Control and Eviction Officer, copy whereof is annexed as Annexure-'IX' to the writ petition.
(2.) The brief facts of the present case are that Smt. Gomti Devi, respondent-landlord of the accommodation in question house No. 62/172A, Harbans Mohal, Kanpur Nagar filed an application on llth September, 2001 under Section 21(1) (b) of the U. P. Act No. XIII of 1972, (hereinafter referred to as 'the Act') to the effect that the accommodation in question is unauthorisedly occupied by the petitioner. On the aforesaid application, a report was sought for by the Rent Control and Eviction Officer from the Inspector concerned, who submitted his report and thereafter notices were issued to the parties to file their objections, if any. The petitioner's case, as is clear from the material on record, was that she is living along with her husband, who was tenant in the accommodation in question for past about 65 years. The petitioner further stated that her husband died in the year 1973 and that she has maintained her sons out of the money that has been left by her husband and that she is aged about 85 years and that landlady Smt. Gomti Devi is always threatening her and pressurising for vacation of the house in dispute, that in this connection a civil litigation is also going on in the civil court between the parties The petitioner stated that she has not vacated the accommodation in question and she is still living therein. It is also stated that Smt, Gomti Devi has purchased the building in dispute in the year 1985. After the death of her husband, the petitioner and her five sons inherited the tenancy and became the legal heirs of the original tenant under the provisions of the Act and it is incorrect to say that her sons have constructed houses. The correct facts are that her eldest son, who is a Government employee is permanently residing at Varanasi and her second son is a teacher in Government Inter College, Rampur and is residing at Rampur permanently. The third son has died in the year 1984 and his wife is residing with the petitioner. Her fourth son has no concern whatsoever with his mother since 1991 because of the differences between the tenant-petitioner and her daughter-in-law. The youngest son is also living separately since 1997. The petitioner further stated that she has no concern with two sons residing at Kanpur and she is living in the accommodation in dispute along with her widow, daughter-in-law, thus in the facts and circumstances stated there is no vacancy or deemed vacancy, as contemplated under Section 12(3) of the Act. The respondent-landlord filed an affidavit and according to this her case was that after the death of husband of petitioner, the petitioner and her five sons are residing in the accommodation in question and thereafter all the sons have already shifted to the houses built by them and the other sons are residing in the cities where they are employed. The documentary evidence has been filed by the respondent-landlady to the effect that two sons of the petitioner who have built their houses are also paying the electricity bills etc. from the respective house, where they are living. On the basis of the materials on record and the pleadings of the parties, the Rent Control and Eviction Officer by the order impugned in the present writ petition has declared the vacancy in the accommodation in question under Section 12(3) of the Act and directed the matter to proceed in accordance with law after advertising the vacancy.
(3.) The only point argued by learned Counsel appearing on behalf of the petitioner-tenant is that Section 12 (3), read with Explanation (a) and (b), which is reproduced below, clearly demonstrates that the view taken by the Rent Control and Eviction Officer cannot be sustained under law. "12. Deemed vacancy of building in certain cases. (1) ... (2) ... (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 tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy : Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Explanation.--For the purposes 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 ; (b) the expression "any member of family", in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant.";