S.U.KHAN, J. - (1.) PROPERTY in dispute, in tenancy occupation of the peti­tioner, was declared vacant by R.C. and E.O./A.C.M., Kanpur Nagar through order dated 22.8.1997 passed in Case No. 17 of 1995, Panna Lal v. Lal Chandra. Thereafter it was released in favour of landlord-respondent Nos. 3 and 4 on 30.8.1997. Against the said order belated revision was filed which was num­bered as Misc. Case No. 67/70 of 1998. A.D.J. XIII Kanpur Nagar rejected the delay, condonation application through order dated 19.7.2000, hence, this writ petition.
(2.) HEARD learned Counsel for both the parties on the merit of the vacancy declaration order, which as also been challenged through this writ petition. Tenant petitioner categorically admitted before R.C. and E.G. that he had constructed his own house bearing No. 133/32-A situate in 'O' Block Kidwai Nagar, Kanpur. However be contended that the property in dispute consisting of two rooms, kitchen, latrine and bath room on the first floor of house No. 50/172-A Naughara Kanpur Nagar was being used by him for com­mercial purpose in the sense that he was having his office in relation to his cloth business. R.C. and E.O. found that even in the voters' list the name of pe­titioner and his family members was shown from the house in dispute. It was no where stated by the petitioner either before the Courts below or in the writ pe­tition that since start of the tenancy petitioner was using the building in dis­pute for commercial purpose. It is quite evident that house in dispute which is residential in nature was let out to the petitioner for residential purposes, however, later on petitioner started using that as an office and shifted his res­idence to his own house. Accordingly contention of learned Counsel for the peti­tioner that provision of section 12 (3) of U.P. Urban Buildings (Regulation of Letting, Rent'and Eviction) Act, 1972 was not applicable is not correct. R.C. and E.O. rightly held that in view of shifting of his residence by the tenant the said provision was squarely applicable. Said provision is quoted below : 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 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 sshall 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."
(3.) IN my opinion as tenant had built his own house, hence vacancy was rightly declared. Release under section 16 of the Act cannot be opposed by ten­ant vide Gopal Das v. A.D.J. 1987(13) ALR 275 (FB) Writ petition is therefore dismissed.;