- (1.) V. K. Shukla, J. Present writ petition has been filed by petitioner ques tioning the validity of the order dated 13. 8. 2008 passed by the Rent Control and Eviction Officer/additional City Magistrate (2nd),district Kanpur Nagar declaring the vacancy in question in respect of Premises No. 44, Harrisganj, Rail Bazar, Kanpur Nagar.
(2.) BRIEF background of the case is that petitioner was tenant of first floor of House No. 44, Harrisganj, Rail Bazar, Kanpur Nagar, Prakash Kanaudiya was owner of the premises in question. Petitioner submits that rent in question was not accepted, as such proceeding under section 30 of the Act No. 13 of 1972 was undertaken and therein orders were passed on 28. 5. 2002 for making deposit. Said property in question was sold away to Abdul Moveed. Petitioner submits that qua the said landlord also application under section 30 of the U. P. Act No. 13 of 1972 was moved and same has been allowed and rent in question is being deposited. Application for allotment was moved on 23. 2. 2008, by Mohammad Ayub. Rent Control and Eviction Inspector, Kanpur Nagar was asked to submit his reply after making spot inspection. On 20. 3. 2008, report was submitted men tioning therein that there is deemed vacancy in the premises in question. Petitioner filed his objection on 31. 5. 2008 mentioning therein that there is no deemed vacancy. On 13. 8. 2008 order has been passed declaring vacancy under section 12 (3) of U. P. Act No. 13 of 1972. At this juncture present writ petition has been filed. Sri Satya Prakash, learned Counsel for petitioner contended with ve hemence that in the present case vacancy in question could not have been declared, as qua premises in question, which was said to have been purchased by the wife of the petitioner, namely Premises No. A-1971 L. I. G. Avas Vikas Hanspuram Navbasta, Kanpur Nagar, there was already agreement to sale, as such view taken is totally incorrect view and same is liable to be quashed. Smt. Rama Goel, learned Counsel for the respondent on the other hand contended that admitted position is that house in question has been purchased in the name of the wife of petitioner and theory, set up in respect of agreement to sale is nothing but camouflage in order to dilute the provision under section 12 (3) of U. P. Act No. 13 of 1972, as such writ petition in question is liable to be dismissed. After respective arguments have been advanced, facts of the present case are being adverted to.
(3.) UNDISPUTED position is that petitioner has been staying as tenant at the first floor of House No. 44, Harrisganj, Rail Bazar, Kanpur Nagar. As rent in question as per petitioner was not being accepted, proceeding under section 30 of U. P. Act No. 13 of 1972 had been undertaken and thereafter rent was being de posited. Property in question thereafter has been purchased by the another in cumbent Abdul Moveed. Petitioner submits that qua the said landlord also ap plication under section 30 of U. P. Act No. 13 of 1972 was moved and same has been allowed and rent in question is being deposited. Application by one Mohd. Ayub for allotment was moved on 23. 2. 2008. Thereafter, Rent Control and Eviction Inspector, Kanpur Nagar inspected the premises in question and sub mitted report mentioning therein that there is deemed vacancy in the premises in question. Thereafter, on the basis of the material available on record va cancy has been declared. Categorical finding of fact has been returned and which has not been disputed that name of wife of the petitioner house in ques tion has been purchased being House No. A-1971 L. I. G. Avas Vikas Hanspuraum Navbasta, Kanpur Nagar on 15. 3. 2003. Petitioner has tried to make out case that qua the said house in question he has entered into agreement to sale dated 30. 8. 2006 in favour of one Mahendra Kumar Shukla. Said agree ment to sell is of no consequence, as acquiring property by tenant or his family member has its own consequence and moment tenant or his family members ac quires the house, which is situated in the same municipality, then vacancy is deemed to be there. Unregistered agreement to sell theory has been set up as per which possession was to be handed over after instrument in question was exe cuted. Thereafter stand has been sought to be taken that possession has been handed over. Admitted position is that sale deed in question has not been exe cuted and circumstances are speaking for itself, that to save from rigors of the provision which provides for declaration of the vacancy, such stand has been taken, which in the facts of the case cannot be accepted. This Court in the case of Yukti Bhadra Dixit v. Rent Control and Eviction Officer, Allahabad and others, 1993 (2) ARC 150 considered the meaning of the word "acquires" as used under section 12 (3) of the Act and qua the same took the view that same has wide meaning of the vacancy contemplated under section 12 (3) of the Act and same comes into existence immediately after taking of the possession in vacant state of the building by the person contemplated under sec tion 12 (3) of the Act and such vacancy comes into existence by operation of law and the legal fiction envisaged under section 12 (3) of the Act. Relevant paras 10, 11,12 and 13 are being extracted below: 10. Section 12 (3) of the U. P. Act No. 13 of the 1972 is to the following effect. " (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 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. " 11. In a decision of this Court in the case of Rajendra Prasad v. IXth Additional District Judge, Kanpur, 1982 (U. P.) RCC 265 it had been clarified that the word 'acquires' as used in the aforesaid provisions has a wide meaning. It was observed that in order to understand its meaning, one should not only go by the dictionary but also to let up the context. This Court went up to observed that looking to the context and surrounding circumstances, the proper inter pretation to be placed on sub-section (3) of section 12 appears to be that it covers within its ambit the case of acquiring a house by allotment as well. It as held in that case that section 12 (3) of the Act created a legal fiction and the fiction created by it had to be given full effect irrespective of the consequences. 12. It may further be noticed that the word 'acquires' refers to 'obtain or 'get as one's own, by one's own exertions. 13. In the fact and circumstances of the present case the fact that the Allahabad Development Authority had allotted the house to the wife of the petitioner for residential purpose in the Sulem Sarai Housing Scheme is apparent from the copy of the agreement executed between Smt. Prem Dixit and the Allahabad Development Authority to which a reference has already been made above. From the affidavit of the petitioner himself it is apparent that Smt. Prema Dixit had obtained vacant possession of the aforesaid premises. The case of the petitioner is that after obtaining the possession of the allotted house Smt. Prema Dixit had allowed it to be oc cupied by certain registered societies. If a residential accommodation is ac quired envisaged under section 12 (3) of the Act but the person who acquires it puts the same to a use other than residential, of his own is that event the accrual of the vacancy which takes place immediately on the taking of vacant possession of the building cannot be deemed to be nullified by such voluntary change of user of the said accommodation. Vacancy contemplated under section 12 (3) of the Act comes into existence immediately on the taking of the possession in vacant state of the building by the person contemplated under section 12 (3) of the Act and such a vacancy which comes into existence by operation of law and the legal fiction envisaged un der section 12 (3) of the Act cannot be deemed to have ceased to be in exis tence merely on account of the change of user by the person who acquires the residential building in a vacant state or non user of the said building by him.;