S.RAFAT ALAM, J. - (1.) TENANT has filed this writ petition for quashing of the order of the Rent Control and Eviction Officer, Kanpur dated 26th March, 1997 declaring vacancy of the accommodation in question under Section 12(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
(2.) LEARNED Counsel for the parties stated that the counter and rejoinder affidavits have been exchanged and, therefore, instead of admitting this petition, it may be disposed of on merit at the stage of admission itself. Accordingly, with the consent of the parties, the petition was heard on merit. Learned Counsel for the parties also filed their written submissions. The petitioner is the tenant and respondent No. 2 is the land-lady. Admitted facts in brief giving rise to this petition are that the tenant was allotted the front room on the ground floor of Building No. 119/386, Darshan Purwa, Kanpur, vide allotment order of the Rent Control and Eviction Officer, dated 11.11.1953 on a rental of Rs. 6 per month which was subsequently enhanced to Rs. 7.50 per month. The inner portion of the building consisting of one room, verandah, courtyard and the store room was under the tenancy of one Parmanand. However, when the said Parmanand vacated the inner portion, it was allotted to the petitioner on a rent of Rs. 12 per month in the year 1966. Since then he is continuously residing in the aforesaid accommodation with his family. It appears that one Ashok Kumar moved an application on 16.10.1996 for the allotment of the same on the ground, inter alia, that the tenant has built a house in the name of his wife and sons, therefore, there is deemed vacancy under sub-section (3) of Section 12 of the Act. It has been alleged in the aforesaid application that the petitioner has purchased plot No. 229 in Rawatpur, Kanpur in the name of his wife and sons through a registered sale deed dated 22.1.1985 and thereafter constructed a house bearing No. 116/607-G on the aforesaid plot and is also residing in the same. The Inspector, Rent Control, accordingly submitted his report on 13.10.1996 to the Rent Control and Eviction Officer. Both the tenant and the landlord filed objections. Respondents No. 1 having heard both the parties, passed an order under sub- section (3) of Section 12 of the Act declaring vacancy on the ground that the tenant has constructed a house in the same city in the name of his wife and sons.
(3.) SHRI S.N. Verma, learned Senior Counsel appearing for the tenant contended, that the wife of the tenant who has been divorced by him is living separately along with their children and has no concern or connection with the tenant. It is also contended that the wife and the children are neither dependent on the tenant nor the tenant has any concern or connection with them and, therefore, in view of the legal fiction created by Explanation (b) of sub- section (3) of Section 12 of the Act, they cannot be included in the family of the tenant. It is also argued that respondent No. 1 has not given any specific finding to the effect that the wife of the tenant and children are residing with the tenant and not separately. Hence in the absence of such a finding, the impugned order vitiates and cannot be sustained. Reliance has been placed on a Division Bench judgment of this court rendered in the case of Shrinath Tandon v. Rent Control and Eviction Officer and others, reported in 1979 ARC 451, and also on a Single Judge judgment of this Court in the case of Somnath Seth v. IInd Additional District Judge, Rampur and others, reported in 1981 ARC 82.;