A. N. Varma, J. - (1.) THE facts relevant for the decision of this petition lie within narrow compass. THE disputed house, namely, house no. 28, Uncha Amir Singh, Muzaffarnagar (House no. 28 for short) was in the tenancy of the petitioner of which Jai Prakash Goel is the landlord. THE petitioner himself is the owner and landlord of another premises, namely, house no. 25 , Civil Lines, South Muzaffarnagar (House no. 25 in brief) which was in the tenancy of one Dr. M. K. Bansal. THE petitioner as the landlord applied for the release of house no. 25 under section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act for short) which was granted by the Prescribed Authority by an order dated 25-7-83 and the petitioner got vacant possession of his house no. 25. THE house was ostensively got vacated for the personal use and occupation of the petitioner and his guests. Soon thereafter the Inspector of Factories made an application for allotment of house no. 25 which was not opposed by the petitioner. Indeed the latter actively supported that move. He gave his consent in writing and happily parted with his own house, namely, premises no. 25. Meanwhile, relying on the fact that the petitioner had got vacated his own residential house, namely, premises no. 25, Rajendra Singh, the respondent no. 3, made an application for allotment of house no. 28 on the ground that the same was liable to be treated as vacant within the meaning of section 12 (3) and 12 (4) of the Act and hence available for allotment.
(2.) THE Rent Control Eviction Officer declared the house no. 28 vacant and allotted the same to the respondent no. 3 by an order dated 28-10-84, but suspended the operation of the allotment order relying on Rule 10 (6) (c) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules 1972. He was of the opinion, that inasmuch as the house had been allotted to the Factories' Inspector (an Officer of the State Government), it could not be got vacated. The respondent no. 3 filed a revision under Sec. 18 of the Act, aggrieved by the part of the order by which the operation of the order of allotment was suspended by the Rent Control Eviction Officer indefinitely. The revision was allowed by the learned 1st Addl. District Judge, Muzaffarnagar by an order dated 15-9-85. The learned Addl. District Judge has while affirming the finding of the Rent Control Eviction Officer that the petitioner would be deemed to be acquired house no. 25 in vacant state and consequently house no. 28 was liable to be deemed vacant under section 12 (3) read with section 12 (4) of the Act, set aside the order by which the operation of the allotment had been suspended. Sri B. D. Agarwala learned counsel for the petitioner did not challenge the finding on the interpretation of Rule 10 (6) (c). He very fairly conceded that if the allotment order made in favour of respondent no. 3 is upheld, Rule 10 (6) (c) would not stand in the way of respondent no. 3. He however, submitted that though the petitioner had got vacated house no. 25, the same went out of his possession with the allotment of that house in favour of the Inspector of Factories on 10-5-84. It was urged that the relevant point of time for determining whether a deemed vacancy has come into existence within the meaning of section 12 (3) of the Act would be the date on which the matter of allotment of the building under tenancy is being considered, which in this case, was 10-10-84 the date on which house no. 28 was allotted to respondent no. 3. It was urged, on that date house no. 25 was admittedly not in possession of the petitioner but it was with the Inspector of Factories. Consequently, it could not be said that the petitioner had acquired in vacant state a residential building, namely, house no. 25 in the same city within the meaning of section 12 (3) of the Act.
(3.) I regret I cannot agree. As soon as the petitioner got vacant possession of his own house no. 25, house no. 28 became liable to be deemed vacant under section 12 (3) arming the Rent Controller with the power to allot house no, 25 and the fact that he willingly parted with his own house no. 25 after he got it vacated either because he voluntarily let it out or stood by and allowed it to be allotted to another person would not have the effect of wiping out the vacancy so arising. In my opinion, as soon as a tenant acquires in vacant state or gets vacated a residential house, a vacancy validly arises under section 12 (3) and, if after acquiring in vacant state his own residential house he lets it out or parts with its possession without any objection the effect of the vacancy so arising is not wiped out or even suspended. For the application of section 12 (3), all that is required to be established is, firstly, that the tenant builds or otherwise acquires a residential building in the same city, and, secondly, gets vacant possession of the same or gets it vacated. On the proof of these two facts, a vacancy comes into being under section 12 (3) read with section 12 (4) authorising the Rent Control Officer to allot the building under the tenancy of the tenant.;