J.C.Gupta, J. - (1.) This writ petition is directed against the order dated 23.9.1993, Annexure-9 to the writ petition, passed by respondent No. 1, the Rent Control and Eviction Officer, Kanpur Nagar, declaring vacancy in respect of the disputed accommodation.
(2.) The dispute relates to the ground floor accommodation in premises No. 10/215. Khalasi Line, Kanpur Nagar, whereof admittedly the petitioner is tenant and respondent Nos. 2 to 5 are landlords. It is also an undisputed fact that the petitioner has been in occupation in the said accommodation for the last more than 40 years. In the year 1989, an application under Section 16 (1) (b) of the U. P. Act No. XIII of 1972, was moved from the side of the landlords before the R.C, and E.O. wherein it was alleged that a deemed vacancy has occurred on account of the fact that the petitioner has acquired a residential accommodation in the same city of Kanpur, which has been constructed in plot No- 1072, Nai Basti, Rawatpur, Kanpur. A report from the Rent Control Inspector was called for who after inspection, submitted a report that the petitioner has been in occupation of the disputed accommodation since long as tenant and as such the same was not vacant. Notices were issued to the concerned parties. Objections were filed on behalf of the landlord. However, by the order dated 26.9.1990 the R.C. and E.O. rejected the landlord's application holding that plot No. 1072 has been purchased by the petitioner in the name of his wife wherein he has raised only a small shop in which 'Aata Chakki' was being run and there was no residential accommodation in the said plot and since no residential building has been built by the tenant or his wife, no vacancy has occurred. This order became final. It further appears that thereafter on 9.6.1992. another application under Section 16 (1) (b) was moved on behalf of the landlords and it was alleged that the petitioner has substantially removed his effects from the disputed accommodation as he has constructed a residential house in plot No. 1072, Nai Basti. Rawatpur, Kanpur. The wife of the petitioner's son was also burnt alive in the aforesaid accommodation arid a case under Section 498A/304B, I.P.C. was registered. Again the Rent Control Inspector made an inspection and submitted a report to the R.C. and E.O. opining that no vacancy appeared to have occurred. Objections were filed on behalf of the landlords. Parties led evidence and this time by the impugned order dated 24.9.1993 the R.C. and E.O. has declared the accommodation in question vacant holding that the petitioner has constructed a residential house in plot No. 1072. Nai Basti where he has been living with his family and has simply retained the accommodation in question by keeping some of his house-holds goods therein and, therefore, a deemed vacancy under Section 12 (1) (c) of the Act has occurred.
(3.) The landlords in their counter-affidavit have alleged that the present application for release was moved on different grounds. It was reiterated that the petitioner has built a residential accommodation in Rawatpur and has shifted there and only to harass the landlord he has kept certain goods in the disputed accommodation. Recently when the daughter-in-law of the petitioner was burnt in the said accommodation, an application on behalf of the landlady dated 30,8.1991 was made to the Station Officer who gave a report that the petitioner was living in the accommodation at Rawatpur, it may not be out of place to mention here that no affidavit of the Station Officer was filed and the report further indicated that the case registered against the petitioner and others under Section 304B/498A, I.P.C. was not found to be true and final report was submitted.;