Rakesh Tiwari - (1.) -Heard learned counsel for the parties and perused the record.
(2.) BY means of this writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 19.7.1999 and 4.5.2000 passed by the Rent Control and Eviction Officer/1st Additional City Magistrate, Kanpur Nagar and the VIth Additional District and Sessions Judge, Kanpur Nagar respectively. The petitioner is the owner and landlady of House No. 85/168, Laxmi Purwa P. S. Rai Purwa, Kanpur Nagar. Part of the aforesaid house was given in tenancy of one Prem Singh at the rate of Rs. 15 per month who was living alongwith his 5 sons. The petitioner moved a release application dated 1.9.1997 under Section 16 (1) (B) of the U. P. Act No. XIII of 1972 which was registered as Misc. Case No. 24 of 1997. The Rent Control Inspector made a spot inspection and submitted his report dated 2.9.1997 in respect of the vacancy said to have been caused due to the shifting of Sri Prem Singh in House No. 620-D, Vishwa Bank Colony, Barra. It is stated that 3 sons of the tenant with the passage of time became independent and were living separately from him and they have constructed their own house, as such vacancy has been caused in the tenanted portion as the tenant Sri Prem Singh, father of respondent Nos. 3 and 4 were living there. Sri A. N. Sinha, learned counsel for the respondents has drawn the attention of the Court to Section 16 (9) (b) and Explanation thereto as under under : "Allotment and release of vacant building.-(1) Subject to the provisions of the Act, the District Magistrate may by order- (a) ................................. (b) ................................. Provided that................... (2) .................................. (3) .................................. (4) .................................. (9) The District Magistrate shall, while making an order under Clause (a) of sub-section (1), also require the allottee to pay to the landlord an advance, equivalent to,- (a) where the building is situated in a hill municipality, one-half of the yearly presumptive rent ; and (b) in any other case, one month's presumptive rent, and on his failure to make or offer the payment within a week thereof, rescind the allotment order. Explanation.-In this sub-section the expression "presumptive rent" means ; an amount of rent which the District Magistrate prima facie considers reasonable having regard to the provisions of sub-sections (2) and (2A) of Section 9, provided that such amount shall not be less than the amount of rent which was payable by the last tenant if any."
(3.) HE submits that if a member of the family is not dependent upon the family, this Section would not come into play but in case the member of the family who is dependent upon the tenant has otherwise acquired a residential building, the provisions would be applicable to him. His submission therefore is that if the member of the family of the tenant who is dependent upon him acquires a house only then the vacancy would occur otherwise not. The definition of "Family" has been given in Section 3 (g) as under : "Family", in relation to a landlord or tenant of a building, means, his or her- (i) spouse ; (ii) male lineal descendants ; (iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building." In the instant case it is admitted by Sri A. N. Sinha that one of the sons Sri Chandra Pal has built and acquired House No. 620-D, Vishwa Bank Colony, Barra and the other son Sri Narendra Singh has also acquired House No. 86/186, Laxmi Purwa, Kanpur Nagar, but he submits that as they are independently living from the tenant, provisions of Section 16 readwith Section 3 (b) and (c) would not apply and the tenanted accommodation under the tenancy of their father would not be declared as vacant.;