Lalta Prasad vs Rent Control & Eviction Officer (1st),Allahabad & Ors.

S.P. Mehrotra, J.—The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India, inter alia, praying for quashing the order dated 2881993 (Annexure No. 5 to the Writ Petition) passed by the Rent Control and Eviction Officer (First), Allahabad (Respondent No. 1).

The dispute relates to a portion of Building No. 16, Sarai Khuldabad, Allahabad.

The said portion has here in after been referred to as the "disputed portion".

It was, inter alia, state d in the Writ Petition that the respondent No. 3 (Prashant Sahu) filed an application dated 1912199C for allotment of the disputed building; and that on the said allotment, application, the respondent No. 1 [Rent, Control and Eviction Officer(First), Allahabad] ordered the Rent Control Inspector to inspect the disputed portion; and that in pursuance there to , the Rent Control Inspector inspected the disputed portion and submitted his report dated 381991.

Copy of the said Rent Control Inspector''s report has been filed as Annexure No. 1 to the Writ Petition.

It was, inter alia, further state d in the Writ petition that the respondent No. 2 (Kundan Lallandlord of the disputed portion) had already moved an application under Section 21 of the U.P Act No. XIII of 1972 for the eviction of the petitioner from the disputed portion; and that the respondent No. 3 (Prashant Sahu) was the real nephew of the respondent No. 2 (Kundan Lallandlord); and that the allotment application moved by the respondent No. 3 (Prashant Sahu) before the respondent No. 1 was the outcome of the hatched conspiracy between the respondent No. 2 and the respondent No. 3 with a common design to shortcircuit the proceedings under Section 21 of the U.P Act No. XIII of 1972 (hereinafter also referred to as the "Act"); and that the said allotment application filed by the respondent No. 3 was absolutely mala fide and collusive.

It was, inter alia, further state d in the Writ Petition that the respondent No. 3 (Prashant Sahu) was a permanent resident of House No. 14, Sarai Khuldabad, Allahabad; and that the said House No. 14, Sarai Khuldabad was owned by the father of the respondent No. 3, namely, Sangam Lal, who was the real brother of the respondent No. 2; and that the said respondent No. 3 was constructing a palacial building on the site No. 58, Sarai Khuldabad, Allahabad; and that the petitioner lives only in two rooms in the said disputed portion.

It was, inter alia, further state the Writ Petition that against the said allotment application filed by the respondent No. 3, the petitioner filed his objection in the shape of an affidavit, copy whereof has been filed as Annexure No.4 to the Writ petition; and that against the said affidavit of the petitioner, none of the contesting respondents, namely, the respondent No.'' 2 and the respondent No. 3, filed any counteraffidavit challenging the contents of the said affidavit of the petitioner, or disputing the contents of the Annexures annexed with the said affidavit of the petitioner.

It was, inter alia, further state d in the Writ Petition that by the order dated 2881993 (Annexure No. 5 to the Writ Petition), the respondent No. 1 illegally declared vacancy under Section 12 (3) of the Act in respect of the disputed portion.

It further appears that supplementary affidavit, sworn on 691993, was filed on behalf of the petitioner. It was, inter alia, state d in the said supplementary affidavit that the disputed portion was originally in the tenancy of the petitioner''s father Ram Lai and on his death, it was inherited by all the adult persons who were living with him, i.e., the petitioner and his major sons and daughters; and that all the aforesaid persons, after the death of ;he original tenant, became individual tenants separately in their own rights and that House No. 73, Sarai Khuldabad was purchased by the petitioner''s father Ram Lal in 1957; and that the petitioner''s son Vijay was living as a tenant in House No. 139, Sarai Khuldabad, separately from the petitioner; and that House No. 139, Sarai Khuldabad was neither owned nor possessed by the petitioner; and that the said Vijay had got no concern with the petitioner or his family; and that the said Vijay being adult son was having and maintaining his own separate family from the petitioner.

It was, inter alia, further state d in the said supplementary affidavit that in House No. 143 Bhusauli Tola, Allahabad, the petitioner had got 1/4 share; and that the said 1/4 share devolved upon the petitioner in the year 1949; and that the said 1/4 share was already occupied by the erestwhile tenants since much before the devolution of interest on the petitioner.

It was, inter alia, further state d in the said supplementary affidavit that the petitioner''s other two major sons, Vinod and Ajay, were living separately from the petitioner along with their own separate families; and that the petitioner had got no concern with the said two sons; and that in fact, all the major sons of the petitioner were not on cordial terms with the petitioner, as a consequence of which they were living and maintaining themselves separately from the petitioner.

It was, inter alia, further state d in the said supplementary affidavit that the alleged houses had got no relevance for the purposes of determining of vacancy and allotment because House No. 73 Sarai Khuldabad and 143 Bhusauli Tola fell in the name of the petitioner much before the commencement of the Act (i.e. U.P. Act No. XIII of 1972).

The said Writ petition was admitted by the order dated 791993 and the following interim order was passed on the Stay Application accompanying the said Writ Petition:

"The operation of the order dated 2881993 declaring the accommodation in question vacant shall remain suspended till further orders. No allotment shall be made in pursuance of the order dated 2881993. However, in case any order or judgment is passed in the proceedings for release under Section 21 filed by the landlord against the petitioner, that order shall have its own effect and this stay over passed in the proceedings for declaration of vacancy shall not effect in those proceedings. Proceedings for Section 21 of Act No. 13 of 1972 shall proceed, as has been proceeding."

It further appears that in reply to the said Writ Petition, the respondent No. 3 (Prashant Sahu) filed a counteraffidavit, sworn on 9111993.

It was, inter alia, stated in the said counter affidavit that merely because an application under Section 21 of the Act had been filed by the respondent No. 2 against the petitioner in respect of the disputed portion, it would not operate as a bar to declaration of vacancy in respect of the disputed portion; and that the fact that no counteraffidavit had been filed by the respondent No. 3 against the aforementioned affidavit of the petitioner filed before the respondent No. 1, would not mean that all the contents of the said affidavit would be deemed to have been accepted.

Along with the said counteraffidavit filed by the respondent No. 3 in reply to the said Writ Petition, the respondent No. 3 filed a copy of his affidavit filed before the respondent No. 1 in support of the said allotment application, as AnnexureCA2 to the said counteraffidavit.

In reply to the said counteraffidavit, sworn on 9111993, the petitioner filed rejoinder affidavit, sworn on 1011996.

Before proceeding further with the narration of the facts, it is pertinent to note that by the order dated 272001, the Writ Petition was dismissed in default.

It further appears that Civil Misc. Application No. 84245 of 2001 was filed on behalf of the petitioner, inter alia, praying for recalling the said order dated 272001 dismissing the Writ Petition in default and for restoring the Writ Petition and the interim order.

The said restoration application was accompanied by an affidavit of the petitioner, sworn on 1102001.

It was, inter alia state d in the said affidavit accompanying the restoration application that on 1292001, the respondent No. 2 reached the disputed portion at about 2.30 p.m. along with the police of the police station Khuldabad and forcibly got vacated the disputed portion on the basis of some release order; and that since the name of the Counsel for the petitioner was not printed in the cause list, the petitioner could not learn about the said order 272001 and he learnt about the said order dated 272001 for the first time on 1292001 when the disputed portion was got vacated by police force.

In reply to the restoration application and its accompanying affidavit, the respondent No. 2 (Kundan Lallandlord) filed counteraffidavit, sworn on 27112001.

It was, inter alia state d in the said counteraffidavit filed in reply to the aforesaid restoration application that the respondent No. 2 took possession of the disputed portion in execution of the order dated 382001 passed by the Rent Control and Eviction Officer (First), Allahabad in Case No. 4 of 1993 releasing the disputed portion in favour of the respondent No. 2.

Copy of the said order dated 382001 was filed as Annexure C.A. 1 to the said counteraffidavit filed by the respondent No. 2.

In reply to the said counteraffidavit filed by the respondent No. 2 in the restoration matter, the petitioner filed rejoinder affidavit, sworn on 312002.

By the order dated 312002 passed on the restoration application, the said order dated 272001 dismissing the Writ Petition in default, was recalled and the Writ Petition was restored to its original number.

It was, inter alia, further directed by the said order dated 312002 that the parties would maintain statusquo, as it stood on the date of the said order dated 312002.

The said order dated 312002 is reproduced below:

"This Writ Petition was dismissed in default on 272001. Sri S.M. Dayal has filed application No. 84245 of 2001 to recall this order.

I have heard Counsel for the petitioner. Cause shown is sufficient. The order dated 272001 is recalled. The Writ Petition is restored to its original number. List this petition for admission before the appropriate Court in the next cause list.

Sri B.K. Narain, Counsel for the respondent state that he has already taken possession. in view of this, parties will maintain status quo as it stands today."

Resuming the narration of facts, it further appears that a supplementary affidavit, sworn on 5112001, was filed on behalf of the petitioner along with Civil Misc. Application No. 62735 of 2001.

It further appears that a supplementary affidavit designated as "supplementary counteraffidavitl", sworn on 1672002, was filed on behalf of the respondent No. 2 and the respondent No. 3.

Copy of the aforementioned release order dated 382001 was filed as Annexure SCA5 to the said Supplementary counteraffidavitl.

It further appears that in reply to the said Supplementary counteraffidavitl filed on behalf of the respondent No. 2 and the respondent No. 3, the petitioner filed a Supplementary rejoinder affidavit, sworn on 992002.

It further appears that another Supplementary counteraffidavit, designated as "Supplementary counteraffidavitll". sworn on 23102002, was filed on behalf of the respondent No. 2 and the respondent No. 3.

From the averments made in the Writ Petition, counteraffidavits, rejoinder affidavits and other Affidavits filed on the record, as mentioned above, it is evident that an allotment application dated 19121990 was filed by Prashant Sahu (respondent No. 3), who was the nephew of the said Kundan Lallandlord of the disputed portion (respondent No. 2).

It is further evident that a Suit, being Suit No. 253 of 1987, under Section 20 of the Act was filed by the respondent No. 2 against the petitioner in respect of the disputed portion.

During the course of arguments, it was state d at the Bar that the said Suit was dismissed and that the Revision arising out of the said Suit was also dismissed and that thereupon, Writ Petition being Civil Misc. Writ Petition No. 5252 of 2000 was filed before this Court and the same was pending.

It further appears that a release application under Section 21 of the Act was also filed by the respondent No. 2 against the petitioner in respect of the disputed portion. The said release application was registered as RA. Case No. 98 of 1989.

The said release application was dismissed by the Prescribed Authority/AGJM (VIII), Allahabad by the judgment and order dated 16121998, copy whereof has been filed as Annexure to the aforementioned supplementary affidavit, sworn on 5112001, filed on behalf of the petitioner.

It is further evident that on the said allotment application having been filed by the respondent No. 3, report of the Rent Control Inspector was called for.

The Rent Control Inspector submitted his report dated 381991, copy whereof has been filed as Annexure No. 1 to the Writ Petition.

It was, inter alia, state d in the said report dated 3 81991 submitted by the Rent Control Inspector that the disputed portion consisted of three rooms, Gallery, Verandah, Kitchen, Angan, Latrine and Bathroom and that the monthly Rent of the disputed portion was Rs. 15.

The Rent Control Inspector in his said report dated 381991 also noticed the contents of the statement in writing given to him by Lalta Prasad Sahu (petitioner) and Prashant Sahu (respondent No. 3).

In his statement in writing given to the Rent Control Inspector as noticed in the said report dated 381991 submitted by the Rent Control Inspector, the petitioner (Lalta Prasad Sahu), inter alia, state d that he was a tenant in the disputed portion situated on the ground floor of House No. 16Sarai Khuldabad, Allahabad; and that the tenancy of the disputed portion was since the time of the father of the petitioner; and that the tenancy of the disputed portion was for the last about 7075 years; and that in the disputed portion, there were three rooms and a kitchen while Angan, tap and latrine were common with other tenants; and that there were other tenants also on the ground floor; and that the Rent of the disputed portion was Rs. 15 per month; and that in the part of the disputed portion facing G.T. Road, he (petitioner) was carrying on the business of grains, and in the back part of the disputed portion, he (petitioner) was residing; and that Kun dan Lalrespondent No. 2 purchased the said House No. 16, Sarai Khuldabad, Allahabad; and that House No. 15 , Sarai Khuldabad, Allahabad, adjacent to the said House No. 16, Sarai Khuldabad, Allahabad, also belonged to the said Kundan Lai (respondent No. 2); and that the said Kundan Lai (respondent No. 2) alongwith his family resided in Nursingpur (Madhya Pradesh) where he was in service in the Agriculture Department; and that Prashant Sahu (respondent No. 3) being son of Sangam Lai, elder brother of the said Kundan Lal (respondent No. 2), was a real nephew of the said Kundan Lai (respondent No. 2).

It was, inter alia, further stated in the said statement in writing given by the said Lalta Prasad Sahu (petitioner) to the Rent Control Inspector that House No. 73, Sarai Khuldabad, Allahabad had been purchased by the petitioner''s father about 3035 years ago on account of paucity of accommodation; and that on the ground floor of the said House No. 73, Sarai Khuldabad, Allahabad, sons of the petitioner were doing General Merchant business while upper portion of the said House No. 73, Sarai Khuldabad, Allahabad was being used by the said sons for their residence.

It was, inter alia, further stated

by the petitioner(Lalta Prasad Sahu) in his said statement in writing given to the Rent Control Inspector that after the enforcement of the U.P Act No. XIII of 1972, the petitioner had neither purchased nor got constructed nor got vacated any new building or part thereof in Allahabad or anywhere else.

In his statement in writing given to the Rent Control Inspector, as noted in the said report dated 381991 of the Rent Control Inspector, the said Prashant Sahu (respondent No. 3), inter alia, stated that the disputed portion was situated on the ground floor of the Srid House No. 16, Sarai Khuldabad, Allahabad; and that the disputed portion was in possession of Lalta Prasad Sahu (petitioner), in front room wherein the petitioner was carrying on grain business; and that the tenancy of the disputed portion was originally in the name of Ram Lai, father of the petitioner; and that the said Ram Lai died 11 years ago.

It was, inter alia, further stated in the said statement in writing given by Prashant Sahu (respondent No. 3) before the Rent Control Inspector that Ram Lai, father of the petitioner, in his lifetime had purchased House No. 73, Sarai Khuldabad, Allahabad; and that after the death of the said Ram Lai, the petitioner was the owner of the said house.

It was, inter alia, further stated in the said statement in writing given by Prashant Sahu (respondent No. 3) to the Rent Control Inspector that Vijay Kumar, son of the petitioner, got possession of the Nazul land in 139, Sarai Khuldabad, Allahabad, and constructed house in the year 1982; and that he was residing in the said house.

It is further evident that the respondent No. 3 (Prashant Sahu) filed an affidavit before the respondent No. 1 in support of his aforesaid allotment application.

Copy of the said affidavit filed by the respondent No. 3 has been filed an Annexure CA2 to the counteraffidavit filed by the respondent No. 3 in reply to the Writ Petition.

It was, inter alia, state d in the said affidavit filed by the respondent No. 3 (Prashant Sahu) before the respondent No. 1 that the owner of House No. 16, Sarai Khuldabad, Allahabad was Kundan Lal Sahu (respondent No. 2) and the petitioner (Lalta Prasad Sahu) was a tenant in the disputed portion of the said house since before it was purchased by the said Kundan Lal (respondent No. 2); and that the petitioner (Lalta Prasad) took the disputed portion on Rent for residence; and that the petitioner (Lalta Prasad) had acquired his own House No. 73, Sarai Khuldabad, Allahabad and the petitioner was residing in the upper storey of the said house and was running a shop on the groundfloor of the said house; and that the petitioner (Lalta Prasad) was also having house No. 143, Bhusauli Tola, Allahabad, where in he was keeping tenant from time to time; and that at present, Manindra Chandra Chaudhary alias Bangali, was being kept as tenant in House No. 143, Bhusauli Tola since the year 1982; and that Vijay Kumar, son of the petitioner, was having House No. 139, Sarai Khuldabad, Allahabad, wherein he was residing; and that the disputed portion was legally vacant.

It is further evident that the petitioner filed his Objection in the form of an affidavit before the respondent No. 1, copy whereof has been filed as Annexure No. 4 to the Writ Petition.

It was, inter alia, state d by the petitioner (Lalta Prasad) in his said Objection (Annexure No. 4 to the Writ Petition) that the petitioner was a tenant of the disputed portion after the death of his father; and that the petitioner was carrying on his business in the front room of the disputed portion and the remaining accommodation was being used by the petitioner and his family members for residential purposes; and that the disputed portion in the possession of the petitioner consisted of two rooms, kitchen and common latrine, bathroom, courtyard and Varandah with other tenants; and that the Rent Control Inspector gave wrong report in which the Rent Control Inspector mentioned accommodation much more than the accommodation being occupied by the petitioner; and that the petitioner had never vacated the disputed portion at any point of time nor was he going to vacate the same in the near future and as such, there was no vacancy in the disputed portion; and that the allotment application had been filed by the said Prashant Sahu (respondent No. 3), who was the real nephew of the said Kundan Lal (respondent No. 2); and that the said Kundan Lal (respondent No. 2) had filed a case before the Prescribed Authority, Allahabad under Section 21 of the Act against the petitioner being P.A. Case No. 98 of 1989 (Kundan Lal v. Lalta Prasad); and that the two sons of the petitioner, namely, Vinod Kumar and Ajai Kumar were doing joint business in House No. 73, Sarai Khuldabad, Allahabad; and that the said Vinod Kumar was married and his family also lived in the said House No. 73, Sarai Khuldabad, Allahabad and that the said House No. 73, Sarai Khuldabad, Allahabad had been purchased by the father of the petitioner (Ram Lai) in the year 1957 much prior to the commencement of the U.P Act No. XIII of 1972 and as such, the question of vacancy or deemed tenancy did not arise at all; and that the Rent Control Inspector had given a wrong fact in his report that Vijai Kumar, eldest son of the petitioner, was doing business in House No. 73, Sarai Khuldabad, Allahabad; and that the petitioner had not built any building, nor had he taken or got vacated any building or part there of in the City of Allahabad after the commencement of the Act (i.e. U.P Act No. XIII of 1972), hence, there was no vacancy in the disputed portion; and that the allotment application had been moved by the said Prashant Sahu (respondent No. 3) only with a view to harass the petitioner with ulterior motive and to help the said Kundan Lal (respondent No. 2), uncle of the said Prashant Sahu (respondent No. 3); and that there was neither any vacancy nor deemed vacancy nor likely vacancy in the disputed portion.

It is further, evident that the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), by his order dated 2881993, held that there was deemed vacancy in the disputed portion and declared vacancy in respect of the said portion.

It was, inter alia, held by the Rent Control and Eviction Officer (First), Allahabad (respondent No, 1) in the said order dated 2881993 that according to the report of the Rent Control Inspector dated 381991, the disputed portion was in the tenancy of the said Lalta Prasad (petitioner); and that the said tenancy was continuing since the time of the father of the said Lalta Prasad (petitioner); and that it was further evident from the evidence it the said Ram Lai, father of the said Laita Prasad (petitioner) purchased House No. 73, Sarai Khuldabad, Allahabad ; and that House No. 139, Sarai Khuldabad, Allahabad was in occupation of the said Vijai Kumar; and that 1/4 share in House No. 143, Bhusauli Tola, Allahabad was in the ownership of the said Lalta Prasad (petitioner); and that it was, thus, evident that the said Lalta Prasad (petitioner) had several houses in Allahabad and as such, he should vacate the disputed portion; and that there would thus be deemed vacancy in the disputed portion.

It is further evident that against the said order dated 2881993 passed by the Rent Control and Eviction Officer (first), Allahabad (respondent No. 1), the petitioner filed the aforementioned Writ Petition wherein interim order dated 791993, reproduced in the earlier part of this judgment, was passed.

It is further evident that by the order dated 272001, the aforesaid Writ Petition was dismissed in default.

It is further evident that after the dismissal of the aforesaid Writ Petition in default by the said order dated 272001, the respondent No. 2 (Kundan Lal) got the disputed portion released in his favour by the order dated 382001 passed by the Rent Control and Eviction Officer (First), Allahabad, (respondent No. 1) and also got possession of the disputed portion on 1292001 in execution of the said release order.

Copy of the said release order dated 382001 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) releasing the disputed portion in favour of the said Kundan Lal (respondent No. 2) under Section 16(1)(b) of the Act has been filed as Annexure SCA5 to the Supplementary counteraffidavitl filed on behalf of the respondent Nos. 2 and 3.

It is further evident that on a restoration application being Civil Misc. Restoration Application No. 84245 of 2001 having been filed on behalf of the petitioner, the Court passed an order dated 312002 whereby the order dated 272001 dismissing the Writ Petition in default, was recalled and the Writ Petition was restored to its original number.

Further, in view of the fact that the possession of the disputed portion had already been taken by the said Kundan Lal (respondent No.2), the Court by the said order dated 312002, inter alia, directed the parties to maintain status quo as it stood on the date of the said order i.e. 312002.

It is further evident that the petitioner filed a review application dated 1392001 under Section 16 (5) of the Act before the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), inter alia, praying for reviewing and setting aside the said release order dated 382001.

Copy of the said review application has been filed as Annexure SCA6 to the Supplementary counteraffidavitl filed on behalf of the respondent Nos. 2 and 3.

The said review application was pending, as per the submissions made by the learned Counsel for the parties.

I have heard Sri S.M. Dayal, learned Counsel for the petitioner and Sri M.C. Gupta, learned Counsel for the contesting respondents.

Sri S.M. Dayal, learned Counsel for the petitioner has made the following submissions:

(1) The present case was not covered under any of the provisions of Section 12 of the Act regarding deemed vacancy in an accommodation.

(2) Section 12(3) of the Act was not applicable to the present case, as Section 12(3) of the Act is prospective in its operation and it could not apply to any acquisition or construction of building prior to the commencement of the Act (i.e. U.P Act No. XIII of 1972). Reliance in this regard is placed by the learned Counsel for the petitioner on the decision in B.P. Sewal v. District Judge, Dehradun & Ore., 1982 ARC 504 (Paragraph Nos. 9 and 10).

(3) House No.". , Sarai Khuldabad, Allahabad was purchased by the said Ram Lal, father of the petitioner in 1957. Hence, acquisition of the said house was not relevant and would not be covered under Section 12 (3) of the Act which has not been made retrospective.

(4) As regards, 1/4 share in House No. 143, Bhusauli Tola, Allahabad, the same was ancestral house. There was no finding recorded by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) in the impugned order dated 2881993 as to whether the said 1/4 share devolved upon the petitioner after the commencement of the Act, or as to whether the said 1/4 share, which devolved upon the petitioner, was vacant, or as to whether any vacancy arose in respect of the said 1/4 share after devolution there of upon the petitioner.

(5) As regards House No. 139, Sarai Khuldabad, Allahabad, alleged to have been built/otherwise acquired by the said Vijai Kumar, son of the petitioner, there was no finding recorded by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) in the impugned order dated 2881993 as to whether the said Vijai Kumar was a member of the family of the petitioner with in the meaning of Explanation (b) to subsection (3) of Section 12 of the Act, or as to whether the said house was in fact built/otherwise acquired in a vacant stage by the said Vijai Kumar, or in case the said house was in fact built/otherwise acquired by the Vijai Kumar, as to whether the said house was built/otherwise acquired or after the commencement of the Act (i.e. U.P Act No. XIII of 1972).

(6) Relevant findings not having been recorded by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) in the impugned order dated 2881993, it was not open to the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) to hold that there was deemed vacancy in the disputed portion.

Finding recorded by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) in the said order dated 28 81993 that there was deemed vacancy in the disputed portion was thus, patently illegal and without jurisdiction.

(7) The impugned order dated 2881993 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), was without application of mind and without recording any reason. The impugned order dated 2881993 declared deemed vacancy in the disputed portion 11\\ wholly irrelevant consideration that the petitioner (Lalta Prasad) had several houses in Allahabad. The Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) failed to record findings on the relevant questions for the application of Section 12(3) of the Act. The impugned order dated 2881993 having been passed without application of mind, was liable to be quashed by this Court in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India. Reliance in this regard is placed by the learned Counsel for the petitioner on the following decisions:

(i) Sri Nath Tandon v. Rent Control and Eviction Officer & Ors, 1979 ARC 351 (DB) (Paragraph Nos. 3, 4 and 5).

(ii) Smt Ram Devi Shakhya & Anr. v. 1st Additional District Judge, Lucknow & Anr., 1981 ARC 305 (FB) (Paragraph Nos. 16 and 17).

(iii) B.P Sewal v. District Judge, Dehradun & Ors., 1982 ARC 504 (Paragraph Nos. 9,10 and 16) (Supra)

(iv) Adarsh Kumar Jain v. Rent Control and Eviction Officer, Kashipur, District Nanital&Anr., 1988 (2) ARC 527 (Paragraph Nos. 5,6, 10 and 12).

(v) Satish Prasad v. Rent Control and Eviction Officer, Allahabad & Ors., 1992 (1) ARC 215 (Paragraph Nos. 11, 12, 13 and 15).

In reply, Sri M.C. Gupta, learned Counsel for the contesting respondents has made the following submissions:

(1) In view of the fact that the respondent No. 2 (Kundan Lai) has already got possession of the disputed portion in execution of the release order daud 382001 under Section 16(1) (b) of the Act, the Writ Petition filed by the petitioner has become infructuous, and the same is liable to be dismissed as such.

(2) In view of the fact that the petitioner has filed a review application under Section 16(5) of tne Act before the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), inter alia, praying for reviewing and setting aside the said release order dated 382001, it is evident that the petitioner is pursuring an alternative remedy wherein the petitioner has also raised the question of vacancy. As such, the present Writ Petition is liable to be dismissed on the ground that the petitioner is availing of alternative remedy. It is further emphasized that in case, the review application filed by the petitioner is rejected, it would be open to the petitioner to file revision under Section 18 of the Act, and the question of vacancy may also be raised in such a revision. Reliance in this regard is placed by the learned Counsel for the contesting respondents on the following decisions:

(i) Mohar Singh v. Rent Control and Eviction Officer, Dehradun 8> Ors., 1993 (2) ARC 337.

(ii) Achal Mishra v. Rama Shankar Singh, 2001 (1) JCLR 901 (SC): 2000 (2) ARC 446 (SC) (Paragraph Nos. 4 to 8).

(iii) Ramesh Chandra Bhatnagar v. Rent Control and Eviction Officer/Additional City Magistrate (III), Kanpur Nagar & Ors., 2000 (2) ARC 472 (paragraph Nos. 5).

(3) The proceedings under Section 21 of the Act and under Section 16 of the Act may pursued simultaneously. There is no bar that in case, the release application under Section 21 (1) of the Act, has been filed, the release under Section 16 (1) (b) of the Act cannot be sought for. Reliance in this Regard is placed on the following decisions:

(i) Syed Mazhar Mustafa Jafri & Anr. v. Rent Control and Eviction Officer, Allahabad & Ors., 1991 (2) ARC 427 (Paragraoh No. 20).

(ii) Bishan Chand & Ors. v. District Judge, Aligarh & Ors., 1999(2) JCLR 149 (All): 1999(1) ARC 224 (Paragraph No. 12). It may be mentioned at this stage that Sri S.M. Dayal, learned Counsel for the petitioner submits that he is not pressing the point that the proceedings under Seci''on 16 (1)(b) of the Act may not be taken by the landlord, after the release application under Section 21 (1) of the Act has already been filed by the landlord.

(4) On the facts and in the circumstances of the case, Section 12 (3) of the Act was applicable, and there was deemed vacancy in the disputed portion.

Elaborating his said submission, the learned Counsel for the contesting respondents has raised the following further submissions:

(A) The disputed portion was a residential building, and as such, the requirement of Section 12 (3) of the Act in this regard was fulfilled in the present case. This, according tc the learned Counsel for the contesting respondents, is evident from the following:

(i) The father of the petitioner was doing business in House No. 73, Sarai Khuldabad, Allahabad till his death on 811983; as such, evidently, the disputed portion was being used by the father of the petitioner for residential purposes. Even though after the death of his father, the petitioner started using the said disputed portion for business purposes, but the same was not material. Learned Counsel for the contesting respondents referred to the statement of Lalta Prasad (petitioner) recorded on 2481996 in Original Suit No. 253 of 1987, copy whereof has been filed as Annexure No. SCAA to the Supplementary counteraffidavitll filed on behalf of the contesting respondents.

Reliance in regard is placed by the learned Counsel for the contesting respondents on the following decision:

Rajendra Prasad v. IXth Additional District Judge, Kanpur, 1982 (U.P.) RCC 265 (Paragraph No. 12).

(ii) Alternatively, if the disputed portion was being used by the petitioner partly for residential purposes and partly for business purposes, then dominant purpose or main purpose would be seen. In the present case, the entire family of the petitioner was living in one room in the disputed portion. As such, living order was dominant purpose and the disputed portion would be covered with in the expression "Residential building" occurring in Section 12 (3) of the Act.

Reliance in this regard is placed by the learned Counsel for the contesting respondents on the following decision:

Smt Kanti Khare v. IIIrd Additional District Judge, Allahabad & Ors., 1982 ARC 594 (DB) (Paragraph Nos. 26 and 27).

(iii) The disputed portion was having kitchen, latrine, bathroom etc. that is, the facilities available in a'': Residential building". As such, nature of the disputed portion showed that the same was residential building.

Reliance in this regard is placed on the decision of the Supreme Court in Prem Chandra v. District Judge, Dehradun & Ors., 1977 ARC 117 (SC) (Paragraph Nos. 4 and 5):AIR1977 SC 364.

(B) Even though the father of the petitioner acquired House No. 73, Sarai Khuldabad, Allahabad in 1957, he made construction on the first floor during the period between 197274, as was evident from the enhancement in the annual value of the said House No. 73, Sarai Khuldabad, Allahabad to Rs. 300 with effect from 141974, as compared to the annual value of Rs. 180 with effect from 141972. Reference in this regard is made to the Municipal Assessment in respect of the said House No. 73, Sarai Khuldabad, Allahabad, photo state copy whereof has been filed as Annexura CA3 to the counteraffidavit, sworn on 9111993, filed by the respondent No. 3 (Prashant Sahu) in reply to the Writ Petition.

Hence, the contention proceeds, even if, deemed vacancy in the disputed portion did not occur on account of purchase of the said House No. 73, Sarai Khuldabad, Allahabad, in 1957, still, deemed vacancy occurred in 197274 when the father of the petitioner made construction on the first floor in the said House No. 73, Sarai Khuldabad, Allahabad.

Reliance in this regard is placed on the decision of the Apex Court in Prakash Chandra Rastogi v. Rent Control and Eviction Officer, Kanpur Nagar & Ors., 2001 (45) ALR 827 (SC) (Paragraph Nos. 3 and 4),

(C) (i) In any case, the petitioner inherited the said House No. 73, Sarai Khuldabad, Allahabad, on the death of his father on 811033. The petitioner was the sole issue of his father and he inherited the said House No. 73, Sarai Khuldabad, Allahabad in a vacant state. In view of the said acquisition of House No. 73, Sarai Khuldabad, Allahabad by the petitioner on 811983 in a vacant state , the deemed vacancy in the disputed portion occurred on 811983 in view of the provisions of Section 12 (3) of the Act.

Sons of the petitioner occupied the said House No. 73, Sarai Khuldabad, Allahabad much after 1983 and the deemed vacancy in the disputed portion having already occurred in 1983, subsequent occupation by the sons of the petitioner, was not material.

Reference in this regard is made by the learned Counsel for the contesting respondents to the Licences issued under the U.P. Prevention of Food Adulteration Rules, 1976 in respect of the business run in the said House No. 73, Sarai Khuldabad, Allahabad for the period from 141992 to 3132001, photo state copies whereof have been filed as Annexure Nos. SRA 13 to SRA15 to the Supplementary rejoinder affidavit, sworn on 992002, filed on behalf of the petitioner (Lalta Prasad).Reference is also made to the Identity Card issued by the Election Commission of India in respect of the said Ajai Kumar, photo state copy whereof has been filed as Annexure SRA16 to the said Supplementary rejoinder affidavit as well as, to the Identity Card issued by the Election Commission of India in respect of the said Vinod Kumar, photo state copy whereof has been filed as Annexure SRA17 to the said Supplementary rejoinder affidavit.

(ii) Sons of the petitioner were settled by the petitioner in the said House No. 73, Sarai Khuldataad, Allahabad much after the inheritance of the said house by the petitioner in 1983. Therefore, even assuming that the said House No. 73, Sarai Khuldabad, Allahabad was not vacant in 1983 when the said house was inherited by the petitioner, the said house definitely became vacant subsequently so as ''o enable the petitioner to settle his sons in the said house.

(D) Apart from various accommodations considered by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), namely, House No. 73, Sarai Khuldabad, Allahabad, House No. 169, Sarai Khuldabad, Allahabad and House No. 143 Bhusauli Tola, Allahabad, the sons of the petitioner, namely, Vijai Kumar and Ajai Kumar have acquired/built certain other houses while they have been residing with the petitioner. As such, Section 12 (3) of the Act is applicable to the present case.

Reference in this regard is made to paragraph No. 9 of the Supplementary counteraffidavit , filed on behalf of the contesting respondents and Annexures SCA1 and SCA2 to the said Supplementary counteraffidavitl. It is submitted by the learned Counsel for the contesting respondents that the said Vijay Kumar, son of the petitioner has purchased part of House No. 34/109 Kala Danda Himmatgunj, Allahabad by saledeed dated 2372001 (Annexure SCA1 to the said Supplementary counteraffidavitl). It is further submitted that the said accommodation purchased by the said Vijay Kumar, is self sufficient, as is evident from rough sketch plan in respect of the said accommodation, filed as Annexure SCA2 to the said Supplementary counteraffidavitIt is further submitted that Plot No. 328, Transport Nagar, Allahabad, was allotted on 2431985 in the name of the said Vijai Kumar, son of the petitioner while Plot No. 329, Transport Nagar, Allahabad was allotted on 2431985 in the name of the said Ajai Kumar, son of the petitioner. Paiaciai building has been constructed on the said plots.

Reference in this regard is made in paragraph No. 10 of the Supplementary counteraffidavitl filed on behalf of the contesting respondents and Annexure SCA3 to the said Supplementary counteraffidavit'', reference is also made to the photostate copy of a photograph of a House allegedly built on the said Plot No. 328 and 329, Transport Nagar, Allahabad, annexed as AnnexureSCA4 to the said supplementary counteraffidavitl.

It is contended by the learned Counsel for the contesting respondents that the avertments made in paragraph Nos. 9 and 10 of the said supplementary counteraffidavitl, having not been specifically denied in paragraph No. 12 of the Supplementary Rejoinder affidavit, sworn on 992002, filed on behalf of the petitioner, the acquisition/building of the other houses, as mentioned above, by the sons of the petitioner, is not disputed by the petitioner. As such, Section 12 (3) of the Act is applicable to the present case.

(E) Deemed vacancy under Section 12 (3) of the Act occurs, the moment acquisition or construction, as contemplated in the said provision is made and the subsequent change in the said state of affairs would not affect the deemed vacancy which has already occurred.

Reference in regard is made to the decision in Mahendra Singh v. Xth Additional District Judge, Kanpur Nagar & Ors., 1988 (1) ARC 113 (Paragraph No. 6).

(F) Writ Jurisdiction under Article 226 of the Constitution of India is discretionary in nature.

In the present case, admittedly, the petitioner was evicted on 1292C01. The petitioner must have settled elsewhere by now, though he has been not made disclosure in this regard. Therefore, it is not a fit case for exercising discretion under Article 226 of the Constitution of India.

In Rejoinder, Sri S.M. Dayal, learned Counsel for the petitioner has made the following submissions:

(1) Before the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), only following documents were on record when the impugned order dated 2881993 was passed by the Rent Control and Eviction Officer (First), Allahabad.

(a) Allotment application moved by Prashant Sahu (respondent No. 3).

(b) Report of the Rent Control Inspector dated 381991, copy whereof has been filed as Annexure No. 1 to the Writ Petition

(c) Affidavit of Prashant Sahu (respondent No. 3), copy whereof has been filed as Annexure CA2 to the counteraffidavit, sworn on 9111993, filed by the respondent No. 3.

(d) Objection in the form of an affidavit, along with annexures there to , filed by the petitioner, copy whereof has been filed as Annexure No. 4 to the Writ Petition.

(e) Copy of the saledeed dated 391957 in respect of House No. 73, Sarai Khuldabad, Allahabad, in favour of Ram Lal, father of the petitioner. Copy of the said saledeed dated 391957 has been filed as Annexure6 to the Writ Petition.

The contesting respondents did not file evidence before the Rent Control and Eviction Officer (First), Allahabad before the impugned order dated 2881993, was passed and they are filing various evidence for the first time in Writ Petition before this Court which is a Court of record. The case is to be decided on the basis of record as it existed on the date when the impugned order was passed by the Authority/Tribunal/Court below.

As such, it is not permissible for the contesting respondents to rely on various evidence filed for the first time in the Writ Petition before this Court. Moreover, the learned Counsel for the contesting respondents has merely attempted to draw conclusions on presumptions and assumptions on the basis of the documents filed in other cases. Endeavour made by the learned Counsel for the contesting respondents is misconceived and impermissible.

The High Court in writ Jurisdiction under Article 226 of the Constitution of India cannot act like Court of Appeal, consider various documents etc., filed for the first time in the Writ Petition and draw conclusions on the basis of presumptions and assumptions. The impugned order, on consideration of the record as it stood before the Rent Control and Eviction Officer (First), Allahabad, was vitiated and was liable to be quashed.

(2) Review application filed by the petitioner under Section 16(5) of the Act before the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), has been filed, inter alia, praying for review and setting aside of the said release order dated 382001 under Section 16(1)(b) of the Act. The said review application cannot be construed as having been filed for reviewing the order dated 2881993 declaring deemed vacancy in the disputed portion which was already under challenge in the Writ Petition.

Referring to the provisions of Section 12 (4) and Section 16(5) of the Act, it is submited that review application under Section 16(5) of the Act, can be filed only after an allotment order under Section 16 (1)(a) or a release order under Section 16(1)(b) of the Act has been passed. An order declaring deemed vacancy under Section 12 (4) of the Act cannot be subjectmatter of the review application under Section 16(5) of the Act.

(3) The Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) passed the impugned order in a wholly sketchy manner and without application of mind. The Rent Control and Eviction Officer (first), Allahabad (respondent No. 1) failed to consider the averments made in the affidavit of the petitioner, copy where of has been filed as Annexure No. 4 to the Writ Petition. The Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) did not properly appreciate the contents of the report of the Rent Control Inspector and the statements in writing given before the Rent Control Inspector.

The Rent Control and Eviction officer (First), Allahabad (respondent No. 1) did not consider the relevant questions in regard to House No. 73, Sarai Khuldabad, House No. 139, Sarai Khuldabad, Allahabad and House No. 143, Bhusauli Tola, Allahabad in order to decide the question of applicability of Section 12 (3) of the Act to the present case. No finding has been recorded by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) in the impugned order dated 2881993 regarding various ingredients to be satisfied for the applicability of Section 12 (3) of the Act.

(1) Illustrating his submissions, the learned Counsel for the petitioner has submitted that the Rent Control and Eviction Officer, (First), Allahabad (respondent No. 1) did not appreciate that Section 12 (3) of the Act was prospective in nature and the purchase of House No. 73, Sarai Khuldabad, Allahabad by the father of the petitioner in 1957 would not attract Section 12 (3) of the Act. Again, as regards, House No. 139, Sarai Khuldabad, Allahabad, the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) did not consider the question as to whether the said Vijai Kumar, son of the petitioner was covered under the expression "member of family", as defined in Explanation (b) to subsection (3) of Section 12 of the MCI, nor did the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) consider the question as to whether the said Vijai Kumar built the said House No. 139, Sarai Khuldabad, Allahabad or otherwise acquired the same in a vacant state, or the question as to when such construction or acquisition, if any, was made by the said Vijai Kumar. Again, the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) failed to appreciate that House No. 143, Bhusauli Tola, Allahabad was an ancestral house and the petitioner had got 1/4 share in the said house. Further, no finding has been recorded as to when the petitioner got the said 1/4 share, or as to whether the petitioner was in possession of any portion of the said House No. 143, Bhusauli Tola, Allahabad in a vacant state.

(2) Reliance in this regard has been placed by the learned Counsel for the petitioner on the following decisions;

(a) Sri Nath Tandon v. Rent Control and Eviction Officer & Ors., 1979 ARC 351 (DB) (Paragraph Nos. 3, 4 and 5) (Supra).

(b) Som Nath Seth v. IInd Additional District Judge, Rampur & Ors., 1981 ARC 82 (Paragraph No. 6).

(c) Smt. Ram Devi Shakhya & Anr. v. 1st Additional District Judge, Lucknow & Anr., 1981 ARC 305 (FB) (Paragraph Nos. 16 and 17) (supra).

(d) B.P. Sewal v. District Judge, Dehradun & Ors., 1982 ARC 504 (Paragraph Nos. 9.10 and 16) (Supra).

(e) Adarsh Kumar Jain v. Rent Control and Eviction Officer, Kashipur, District Nanital & Anr., 1988 (2) ARC 527 (Paragraph Nos. 5, 6, 10 and 12) (Supra).

(f) Satish Prasad v. Rent Control and Eviction Officer, Allahabad & Ors., 1992 (1) ARC 215 (Paragraph Nos. 11, 12, 13 and 15) (Supra).

(3) Ram Lal, father of the petitioner purchased House No. 73, Sarai Khuldabad, Allahabad in 1957. As per the submission made by the learned Counsel for the contesting respondents, the said Ram Lal, father of the petitioner, made construction in the said House during the period between 197274. Assuming the said submission made by the learned Counsel for the contesting respondents to be correct, the deemed vacancy in the disputed portion could be caused in 1972 or in 1974. However, the then landlord of the disputed portion continued to accept Rent till 1985. As such, tenancy of the said Ram Lal stood regularized under Section 14 of the Act in 1976. Hence, no new cause of action arose on the death of the said Ram Lal, father of the petitioner, in 1983 and inheritance of House No. 73, Sarai Khuldabad, Allahabad by the petitioner did not create any vacancy.

Reliance in this regard is placed on a decision of the Apex Court in Chetar Sen Jain v. Additional District Judge III, Dehradun & Ors., 1992 (2) ARC362 (Paragraph No. 9).

(4) Inheritance of House No. 73, Sarai Khuldabad, Allahabad in 1983 would not be acquisition of the said house under Section 12 (3) of the Act. It is submitted that the word "acquires" used in Section 12 (3) implies act of volition on the part of a person. In case of inheritance, the property devolves upon a person under law without any act, much less act of volition, on the part of a person. Therefore, inheritance is not covered under acquisition under Section 12 (3) of the Act.

(5) It is submitted by the learned Counsel for the petitioner that in case, averments regarding subsequent events are made by one party in the writ proceeding and the same are denied by the other party, then the High Court cannot go into or investigate such disputed facts.

Reliance Happy in this regard is placed on the decision in Padam Kumar v. IVth Additional District Judge, MeerutS, Ore., 1981 ARC 610 (Paragraph No. 5).

(6) It is further submitted by the learned Counsel for the petitioner that new pleas on questions of fact have been raised for the first time before this Court in its Writ Jurisdiction by the learned Counsel for the contesting respondents. Such new pleas on questions of fact cannot be raised for the first in writ Jurisdiction. The High Court cannot be expected to go into such pleas, act as Rent Control and Eviction Officer and substitute its own findings.

Reliance in this regard is placed on the following decisions:

(i) HariShanker Verma v. IVth Additional District Judge, Agra & Ors., 1977 ARC 469 (Paragraph No. 5).

(ii) Wali Mohammad v. The District Judge, Saharanpur & Ors., 1982 ARC 94 (Paragraph No. 10).

(iii) Dinesh Chand Paliwal v. The Additional District Judge & Ors., 1983 ARC 577 (Paragraph Nos. 26 and 27).

I have considered the submissions made by the learned Counsel for the parties and perused the record.

Before proceeding to deal with the submissions made by the learned Counsel for the parties on the merits of the case, it is necessary to deal with the preliminary objections raised by the learned Counsel for the contesting respondents.

The first preliminary objection raised by the learned Counsel for the contesting respondents, mentioned in the earlier part of the judgment, is that in view of the fact that the respondent No. 2 (Kundan Lal) has already got possession of the disputed portion on 1292001 in execution of the release order dated 38 2001 under Section 16 (1 (b) of the Act, the Writ Petition filed by the petitioner has become infructous and the same is liable to be dismissed as such.

I have considered the said preliminary objection raised by the learned Counsel for the contesting respondents and I find myself unable to accept the same.

The present Writ Petition has been filed, inter alia, praying for quashing the order dated 2881993 passed by the Rent Control and Eviction officer (First), Allahabad (respondent No. 1) whereby vacancy was declared in respect of the disputed portion. After the dismissal of the Writ Petition in default by the order dated 272001, the respondent No. 2 (Kundan Lal) got the disputed portion released in his favour by the order dated 382001 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) and got possession of the disputed portion on 1292001 in execution of the said release order. Subsequently, however, the Court by its order dated 312002 recalled the said order dated 272001 dismissing the Writ Petition in default and restored the Writ Petition to its original number. Further, direction for maintaining status quo by the parties, as on the date of the said order (i.e. 312002), was also given.

It is evident that the said release order dated 382001 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) was dependent on the fact that the vacancy in respect of the disputed portion had been declared by the order dated 2881993.

Question of vacancy in any accommodation is a jurisdicitional fact and the release order under Section 16 (1)(b) of the Act or allotment order under Section 16 (1)(a) of the Act may be passed only \\"hen there is vacancy in an accommodation. In case, there is no vacancy in an accommodation, the Rent Control and Eviction Officer has no jurisdiction to pass any release order under Section 16 (1) (b) of the Act or any allotment order under Section 16 (1)(a) of the Act, in respect of the such accommodation.

The present Writ Petition having been restored to its original number by the said order dated 312002, validity of the order dated 2881993 declaring vacancy in respect of the disputed portion is still under consideration of this Court. In case, this Court, ultimately, comes to the conclusion that the said order dated 2881993 declaring vacancy was invalid, the said order dated 2881993 would be liable to be quashed and in consequence, the said release order dated 382001 dependent on the said declaration of vacancy by the said order dated 2881993 would lose its ground and would become ineffective and inoperative. Hence, I am of the opinion that the present Writ Petition cannot be said to have become infructuous merely because, the respondent No. 2 (Kundan Lal) got the disputed portion released in his favour under Section 16 (1)(b) of the Act and also got possession of the disputed portion in execution of the release order.

Coming now to the second preliminary objection raised by the learned Counsel for the contesting respondents, it is submitted by the learned Counsel for the contesting respondents that the present Writ Petition is not maintainable as the petitioner is availing of alternative remedy of review under Section 16(5) of the Act and the order passed on the review application would be challengeable in revision under Section 18 of the Act.

I have considered the said submission made by the learned Counsel for the contesting respondents and I find myself unable to accept the same.

The present Writ Petition was filed in the year 1993 challenging the order dated 2881993 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent NO. 1 ) whereby vacancy was declared in respect of the disputed portion. The Writ Petition was admitted by this Court by its order dated 791993. counteraffidavit and rejoinder affidavit, as well as various other affidavits, were exchanged between the parties during the pendency of the Writ Petition. After the dismissal of the Writ Petition in default by this Court on 272001, the respondent No. 2 (Kundan Lal) got the disputed portion released in his favour by the order dated 382001 and also got possession of the disputed portion on 1292001 in execution of the said release order. It is in these circumstances that the petitioner filed the review application dated 1392001 (Annexure SCA6 to the Supplementary counteraffidavit filed on behalf of the respondent Nos. 2 and 3) under Section 16(5) of the Act before the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), inter alia, praying for reviewing and setting aside the said release order dated 382001.

I am of the opinion that the filing of the said review application by the petitioner in September, 2001 seeking review and setting aside of the said release order dated 382001 passed during the pendency of the Writ Petition, cannot be a ground for dismissing the Writ Petition filed much earlier (i.e, in the year 1993). Review Application was filed in September, 2001 on account of subsequent developments which occurred during the pendency of the Writ Petition filed in the year 1993 On the basis of filing of the said review application in September, 2001 for reviewing and setting aside the said release order dated 382001, it cannot be contended that as the petitioner is availing of alternative remedy, the Writ Petition filed much earlier, i.e., in the year 1993, be dismissed on the said ground.

The review application filed in September, 2001 was necessitated on account of subsequent developments which occurred during the pendency of the Writ Petition and the same cannot provide a ground for dismissing the Writ Petition, filed much earlier, on account of alternative remedy.

In the circumstances, it is not necessary for me to go into the question as to whether the order declaring vacancy can be subject matter of the review application under Section 16 (5) of the Act or of Revision under Section 18 of the Act.

Let us now consider the submissions made by the learned Counsel for the parties on the merits of the case.

The basic question involved in the present case is as to whether the order 2881993 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) declaring deemed vacancy in respect of the disputed portion was correct or not.

Both the parties have made their submissions on the basis that the deemed vacancy has been declared by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) by the order dated 2881993 under Section 12 (3) of the Act.

Even otherwise, it was not established on record that the petitioner has substantially removed his effects from the disputed portion, or that the petitioner has allowed the disputed portion to be occupied by any person, who was not a member of his family, or that the petitioner as well as members of his family had taken up residence elsewhere. Therefore, none of the clauses of Subsection (1) of Section 12 of the Act was attracted in the present case.

Again, it was not pleaded or proved that subsection (2) of Section 12 of the Act was attracted in the present case.

In the circumstances, I am proceeding to examine the matter in the light of subsection (3) of Section 12 of the Act.

In order to appreciate the submissions made by the learned Counsel for the parties, it is pertinent to refer to Section 12 of the Act which is quoted below:

"12. Deemed vacancy of building in certain cases (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if

(a) he has substantially removed his effects therefrom, or

(b) he has allowed it to be occupied by any person who is not a member of his family, or

(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(2) In the case of nonresidential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.

(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 get 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 subsection

(a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as 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.

(3A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer)in the city, municipality, notified area or town area to which he has been so transferred, whichever is later.

(3B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, municipality, notified area or town area in which the said building is situate and such engagement ceases for any reason whatsoever and he is landlord of any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the firstmentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceedings under Section 21 or otherwise}.

(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of subsection (1), or subsection (2) or subsection (3), subsection (3A) or subsection (3B)}, shall, for the purposes of this chapter, be deemed to be vacant.

(5) A tenant or, as the case may be, a member of his family referred to in subsection (3) shall, have a right, as landlord of any residential building referred to in the said subsection which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 to apply under clause (a) of subsection (1) of Section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remaining provisions of this Act do not apply.}"

As noted above, subsection (3) of Section 12 of the Act is relevant in the present case.

An analysis of subsection (3) of Section 12 of the Act with Explanation there to shows the following requirements:

(1) (1) In the case of a residential building,

(2) If the tenant or any member of his family

(3) (a) builds or

(b) otherwise acquires in a vacant state or gets vacated

(4) a residential building

(5) in the same city, municipality, notified area or town are in which the building under tenancy is situate,

(6) he shall be deemed to have ceased to occupy the building under his tenancy.

(II) If the tenant or any member of his family had built any such residential building before the date of commencement of the 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 (Proviso to subsection (3) of Section 12 of the Act).

(III) A person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee (Explanation (a) to subsection (3) of the Section 12 of the Act).

(IV) 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. (Explanation (b) to subsection (3) of Section 12 of the Act).

It will thus, be seen that for the applicability of subsection (3) of Section 12 of the Act, the following requirements must be fulfilled:

(1) The building under tenancy (hereinafter also referred to as "the building in question") must be a residential building.

(2) The tenant of the building in question or any member of his family builds a residential building in the same city, municipality, notified area or town are in which the building under tenancy (i.e., the building in question) is situate.

Or

The tenant Of the building in question or any member of his family otherwise acquired 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 (I.e., the building in question) is situate,

(3) "Any member of family" of the tenant must not be a person who has neither been normally residing with nor is wholly dependent on such tenant.

(4) If the tenant or any member of his family is occupying a public building for residential purposes as a tenant, allottee or licensee then too, such a person shall be deemed to have otherwise acquired a building.

(5) In case the above requirements are fulfilled then the tenant shall be deemed to have ceased to occupy the building under his tenancy (i.e., the building in question).

Proviso to subsection (3) of Section 12 of the Act shows that if the tenant or any member of his family had built any such residential building before the date of commencement of the 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.

The language of the said proviso clearly shows that the said proviso applies only in a case where the tenant or any member of family builds any residential building before the date of commencement of the Act. The said proviso is not applicable where the tenant or any member of his family otherwise acquires a residential building in a vacant state or gets vacated a residential building. Therefore, the language of the said proviso itself shows that while the Legislature has made subsection (3) of Section 12 of the Act retrospective and applicable in case of construction of a residential building by the tenant or any member of his family before the date of commencement of the Act (i.e., U.P. Act No. XIII of 1972), subsection (3) of Section 12 of the Act has not been made retrospective and applicable in case of acquisition of a residential building in a vacant state or getting a residential building vacated before the date of commencement of the Act (i.e., U.P. Act No. XIII of 1972), by the tenant or any member of his family.

Therefore, even if the tenant or any member of his family had acquired in a vacant state or got vacated a residential building before the date of commencement of the Act, then subsection (3) of Section 12 of the Act shall not be attracted.

The said conclusion gets support from the decision of this Court

In B.P. Sewal case (Supra), wherein this Court has laid down as follows (Paragraph Nos. 9 and 10 of the said ARC):

"(9) The case of the third that the premises in dispute was vacant for the reason that the petitioner had removed his effects therefrom, had allowed it to be occupied by his soninlaw and daughter who were not the members of his family, that the petitioner had taken up residence permanently in Nigeria and that the petitioner owned another residential premises in the city of Dehradun. The Rent Control and Eviction Officer accepted the case of the third respondent in this regard and the District Judge in revision affirmed the finding. All these pleas of the third respondent were under Section 12(1) and Section 12(3) of the Act. These provisions introduced a fiction viz. the tenant shall be deemed to have ceased to occupy the building on the happening of any of the above events. In order to attract the provisions of the deeming clause it is incumbent for the authorities under the Act to see that the provisions of the deeming clause are strictly complied with. Otherwise there is a possibility of innocent tenants losing their possession from buildings under tenancy on assumed and unreal grounds. It is wellsettled that the question whether a building is vacant or not raises question of jurisdictional fact. There can be no allotment of a building unless it is held to be vacant. Therefore, it is necessary for the authorities under the Act to satisfy themselves that the building is vacant. Further, where the deeming clauses of Section 12 is invoked, it is all the more, necessary for the authorities under the Act to examine the evidence meticulously and apply the law correctly.

(10) In the present case one of the pleas taken by the third respondent was that the petitioner owned a house in ''Dehradun also. The Rent Control and Eviction Officer, held that the house at Nala Pani Road, Dehradun had been purchased by the wife of the petitioner in 1970 and had been let out in 1971 and that the said house had been sold also on 1321978, during the pendency of the proceedings before him. There facts induced the Rent Control and Eviction Officer to hold that the petitioner did not have any intention of residing in Dehradun. The above facts do not, in my opinion, attract the provisions of Section 12(3) of the Act. That subsection is prospective in operation. The proviso to the said subsection which relates to the tenant''s building of a house is, however, not prospective but affects those constructions which had been built by the tenant even prior to the coming in force of the Act. In this case it is nobody''s case that the house at Nala Pani Road was built by the petitioner. Consequently, the proviso to subsection (3) of Section 12 is not attracted. But subsection (3) speaks of the tenant or members of his family acquiring or building a residential house in the same city. Whereupon he would be deemed to have ceased to occupy the building under tenancy. This subsection would be applicable where a residential building is acquired in a vacant state or a residential building is constructed after the coming in force of the Act. In the present case the order of the Rent Control and Eviction Officer shows that the building on the Nala Pani Road was acquired by the wife of the petitioner in 1970 and let out on Rent in 1971 both dates are before the coming in force of the Act. It is true that this building was sold away in 1978 but the reasons for doing so are not known or disclosed. There may be reasons which may appear to be very good reasons but we do not know them. The fact that this building was acquired and let out prior to the coming in force of the Act and that it was not in a vacant state, shows that the building was not available for occupation by the petitioner and his family. Consequently, the provisions of Section 12(3) would have not application."

From an analysis of subsection (3) of Section 12 of the Act with Explanation thereto, it is evident that before declaration of deemed vacancy in a building under subsection (3) of Section 12 of the Act, the Rent Control and Eviction Officer is bound to apply his mind to the question as to whether the requirements of subsection (3) of Section 12 of the Act with Explanation thereto are fulfilled or not and record specific findings in this regard on a consideration of the record, giving reasons for such findings.

The question of vacancy is a jurisdictional fact that goes to the root of jurisdiction of the Rent Control and Eviction Officer. Therefore, the Rent Control and Eviction Officer must carefully consider the record and give definite findings in regard to various requirements of subsection (3) of Section 12 of the Act with Explanation thereto, giving reasons for such findings and then, on the basis of such findings, decide the question regarding the applicability or otherwise of subsection (3) of Section 12 of the Act.

In view of the aforementioned analysis of subsection (3) of Section 12 of the Act with Explanation thereto, it is evident that the Rent Control and Eviction Officer is required to address himself, inter alia, to the following questions:

(1) Whether the building under tenancy (i.e., the building in question) is a residential building"

(2) Whether the tenant or any member of his family has built a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate and whether such construction of the residential building has been done before the date of commencement of the Act or after the date of commencement of the Act"

Or

Whether the tenant or any member of his family has otherwise acquired in a vacant state or has got vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy (I.e., the building in question) is situate and whether such acquisition of the residential building in a vacant state or getting the residential building vacated, has been done before the date of commencement of the Act (i.e. U.P. Act No XIII of 1972) or after the date of commencement of the Act?

(3) Whether the tenant or any member of his family is occupying a public for residential purposes as a tenant or allottee or licensee"

(4) Whether "member of family" of the tenant is a person, who has neither been normally residing with nor is wholly dependent on such tenant"

It is only addressing himself, inter alia, to the aforesaid questions and recording findings on such questions on a consideration of record, giving reasons for such findings, that the Rent Control and Eviction Officer can decide the question as to whether there is deemed vacancy in the building in question under subsection (3) of Section 12 of the Act or not.

In case, the Rent Control and Eviction Officer decides the question of deemed vacancy without considering the relevant questions mentioned above, then such decision of the Rent Control and Eviction Officer will be vitiated and will be liable to be quashed by this Court in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India.

In the present case, the applicability of subsection (3) of Section 12 of the Act was being sought mainly on the following grounds:

(1) House No. 73, Sarai Khuldabad, Allahabad allegedly acquired by Ram Lal, father of the petitioner and subsequently, allegedly irihenieci by the petitioner on the death of the said Ram Lal.

(2) House No. 139, Sarai Khuldabad, Allahabad allegedly acquired/build by Vijai Kumar, son of the petitioner.

(3) Ancestral House No. 143 Bhusauli Tola, Allahabad wherein the petitioner allegedly had 1/4 share.

In regard to each of the aforesaid three houses, "the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) was required to record findings on the relevant questions, as mentioned above, for deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act.

Thus, in respect of each of the aforesaid three houses, (hereinafter also referred to as the "allegedly built/required houses"), the Rent Control and Eviction Officer was required to consider, inter alia, the following questions and record findings thereon on a consideration of record, giving reasons for such findings:

(1) Whether the disputed portion was a residential building?

(2) Whether the allegedly built/acquired house was a residential building?

(3) Whether the allegedly built/acquired house has been built or has been otherwise acquired in a vacant state or has been got vacated by the petitioner or any member of his family and whether such construction of/acquisition, in a vacant state, of/getting vacated the allegedly built/acquired house has been done before the date of commencement of the Act (i.e., U.P. Act No. XIII of 1972) or after the date of commencement of the Act?

(4) Whether in case, construction of/acquisition, in a vacant state, of/getting vacated the allegedly built/acquired house has been done by a member of the family of the petitioner, such member of family is a person, who has neither been normally residing with nor is wholly dependent on such tenant?

It may be mentioned that Explanation (a) to subsection (3) of Section 12 of the Act is not relevant in the present case, as none of the allegedly built/acquired houses has been alleged to be a public building.

A perusal of the impugned order dated 2881993 shows that the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) has not addressed himself of the relevant questions, as mentioned above, for deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act and has not recorded findings on such questions on a consideration of record, giving reasons for such findings. The Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) has passed a sketchy order without applying his mind to the question as to whether the requirements of subsection (3) of Section 12 of the Act were fulfilled in the present case or not. The observation of the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) in the impugned order dated 2881993 that the petitioner had several houses in Allahabad and as such, he should vacate the disputed portion and that there would, thus, be deemed vacancy in the disputed portion, clearly shows that the Rent Control and Eviction officer (First), Allahabad (respondent No. 1) proceeded on considerations which were not relevant for deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act.

Therefore, I am of the opinion that the impugned order dated 2881993 is liable to be quashed and the matter is liable to be remanded to the respondent No. 1 for deciding the same afresh in the light of observations made above after giving opportunity of being heard to both the sides.

The conclusions, mentioned above, are supported by various judicial decisions referred to hereinafter:

(i) In Sri Nath Tandon case (supra), a Division Bench of this Court opined as follows (Paragraph Nos. 3, 4 and 5 of the said ARC):

(3) Section 12(3) lays down that in case of residential building if a tenant or any member of his family builds or otherwise acquire in a vacant state a residential building in the same city in which the building under tenancy situates, he shall be deemed to have ceased to occupy the building under his tenancy. Expression "any member of family" as defined by the Explanation to subsection (3) of Section 12 in relation to a tenant does not include a person who has neither been normally residing with nor is wholly dependent on such tenant. Section 12(3) creates a legal fiction for treating vacancy in an accommodation if the conditions laid down therein are satisfied. Before deeming provision is applied for treating vacancy in a residential building, the condition precedent as laid down in the said Section must be fully satisfied. These conditions are that the tenant himself or member of his family should be proved to have occupied any other building in the same city in a vacant state, then there would be a deemed vacancy. Even if a member of tenant''s family builds or otherwise acquire a building in vacant state and if he has not been normally residing with the tenant or if he has not been wholly dependent on the tenant, the deeming provision would not apply.

(4) In the instant case the Rent Control and Eviction Officer has not recorded any finding that the petitioner''s son who was employed in the Railway service, has been normally residing with the petitioner, in the building in dispute and that he had been wholly dependent on the petitioner. Since P.M. Tandon was employed in the Railway service, he could not be wholly dependent on the petitioner. In the absence of any requisite finding as contemplated by Section 12(3) of the Act, the Rent Control and Eviction Officer had no jurisdiction to treat the building vacant.

(5) The Rent Control and Eviction Officer passed, the impugned order on extraneous consideration. In his finding he has stated" in the absence of any cogent reason to establish his inability to occupy the allotted accommodation I am of the view that the allottee O.P. has deliberately not occupied the same. Had there been any reason beyond his control to occupy the allotted accommodation, definitely the explanation attached to Section 12 could be invoked". It appears that the Ront Control and Eviction Officer assumed that unless there was explanation by the petitioner as to why he had not occupied the Railway quarter which had been allotted Jo his son, the explanation would not apply. There was not legal obligation on the petitioner to explain as to why he had not occupied the Railway quarter which had been allotted to his son. The Rent Control and Eviction Officer committed manifest error in holding that the explanation to Section 12(3) did not apply as the petitioner failed to point out reasons for not occupying the Railway quarter. As noted earlier, the Railway accommodation had been allotted to the petitioner''s son Prem Nath and not to him. Prem Nath was holding a transferable post, therefore, Section 12 (3) was not at all attracted to the facts of the case."

(ii) In Som Nath Seth case (Supra), a learned Single Judge of this Court laid down as follows (Paragraph No. 6 of the said ARC):

"6. Learned Counsel for the petitioner has argued that the learned District Judge has fallen into a manifest error of law in holding that the accommodation in dispute "shall be deemed to have come vacant" by virtue of the petitioner''s son having acquired another accommodation in the same city. Learned Counsel contended that the learned District Judge has obviously omitted to consider the petitioner''s objection that Rakesh Seth was neither normally residing with the petitioner, nor was he dependent on him. It was urged that the learned District Judge has obviously omitted to consider also the provisions of clause (b) of Explanation to subsection (3) of Section 12 of the aforesaid Act. Subclause (b) of that Explanation reads as follows:

"(b) The expression (any member of family) in relation to tenant, shall not include person who has neither been normally residing, nor is wholly dependent on such tenant." The provisions of the aforesaid Explanation are clear and unambiguous. The accommodation in dispute could not be deemed "vacant" without considering the petitioner''s objection that Rakesh Seth was neither normally residing with the petitioner, nor was he wholly dependent on him. The learned District Judge has applied subsection (3) of Section 12 of the aforesaid Act without considering the said Explanation."

(iii) In Ram Devi Shakhya case (Supra), a Full Bench of this Court did not approve the Division Bench in Sri Nath Tandon case (Supra) in regard to interpretation of the phrase "any member of family", as defined in Explanation (b) to subsection (3) of Section 12 of the Act. The Full Bench held as follows (Paragraph Nos. 16 and 17 of the said ARC):

"(16) It is difficult to imagine a more inartistic and confusing drafting. The draftsman has used a double negative"a person who has neither been normally residing with nor is wholly dependent on such tenant" shall not be member of the family. To put it in positive terms, the phrase shall refer to a person who has either been normally residing with or is wholly dependent on such tenant. Reading it this way, it seems clear that if either of the two conditions exists, the person will be a member of the family of the tenant. That is to say, if a person is normally residing with the tenant, he shall be a member of the family. If he is wholly dependent on such tenant, then also he will be a member of the family, even though he may not be normally residing with the tenant.

(17) If a person who has been normally residing with the tenant builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city etc., the building under tenancy shall be deemed to have become vacant. Similarly, if a person who is wholly dependent on the tenant does the offending act, namely acquires etc., another residential building, the same result will follow. It is not necessary that a person should both be normally residing with the tenant as well as be wholly dependent on such tenant before his acquiring another building will cause vacancy."

(iv) In B.P. Sewal case (Supra), this Court has laid down as follows (Paragraph Nos. 9 and 16 of the said ARC):

"(9) The case of the third respondent was that the premises in dispute was vacant for the reason that the petitioner had removed his effects therefrom, had allowed it to be occupied by his soninlaw and daughter who were not the members of his family, that the petitioner had taken up residence permanently in Nigeria and that the petitioner owned another residential premises in the city of Dehradun. The Rent Control and Eviction Officer accepted the case of the third respondent in this regard and the District Judge in revision affirmed the finding. All these pleas of the third respondent were under Section 12(1) and Section 12(3) of the Act. These provisions introduced a fiction viz the tenant shall be deemed to have ceased to occupy the building on the happening of any of the above events. In order to attract the provisions of the deeming clause it is incumbent for the authorities under the Act to see that the provisions of the demanding clause are strictly complied with. Otherwise there is a possibility of innocent tenants losing their possession from buildings under tenancy on assumed and unreal grounds. It is well settled that the question whether a building is vacant or not raises a question of jurisdictional fact. There can be no allotment of a building unless it is held to be vacant. Therefore, it is necessary for the authorities under the Act to satisfy themselves that the building is vacant. Further, where the deeming clauses of Section 12 is invoked, it is all the more necessary for the authorities under the Act to examine the evidence meticulously and apply the law correctly.

(16) I have already observed that the question whether a building is vacant or not is jurisdictional fact. It has to be ascertained on the appreciation of the evidence. The finding by the Rent Control and Eviction Officer in this regard is not conclusive. The District Judge in revision is required to give his own finding after considering the relevant material on record In the case of Budh Mal Gupta v. Addl. District Judge, S.D. Agarwala, J., held that the question whether there was a deemed vacancy or not was a question of jurisdiction and therefore, the necessary ingredients for determining as to whether the property could be held to be deemed vacant had to be decided by the revisional Court. If the District Judge does not apply his mind to this question it cannot be said that the finding given by him is in accordance with law."

(v) In Adarsh Kumar Jain case (Supra), a learned Single Judge of this Court held as under (Paragraph Nos. 5, 6 and 10 of the said ARC):

"(5) Section 12(3) of the Act in so far it is relevant for the purposes of this case is extracted below:

"(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 situated, he shall be deemed to have ceased to occupy the building under his tenancy."

It is evident from the above that the powers of the Prescribed Authority to declare a deemed vacancy in respect of tenanted accommodation or premises are not uncontrolled and unrestricted. The limitations of those powers are implicit in the provisions contained in Section 12(3) itself Under the above provisions vacancy is deemed to be caused by a tenant on the happening of a contingency which has two folds requirements. In order that a vacancy could be declared the Prescribed Authority must come to a conclusion that a tenant or any member of his family had built or acquired in vacant state or has got vacated a residential building. Secondly the Prescribed Authority must further find, particularly where a dispute has been raised by a tenant or on his behalf, that the newly constructed building or the other building acquired by modes specified under Section 12 (3) or otherwise is located in the same city, Municipality, Notified Area or Town Area in which the building under tenancy is situated. If any one of the two requirements aforesaid, in a given case are found wanting an order declaring a deemed case vacancy cannot be validity made. Mere constructing of a residential building or acquiring another residential building by a tenant in another city or outside the municipal limit etc. is not sufficient to hold that the tenant of the disputed accommodation under his tenancy has ceased to occupy it and that accommodation is deemed to be vacant for fresh allotment. The legislative intent of Section 12(3) appears to be that where a person residing in a tenanted building has constructed or has otherwise acquire another residential building in the same city, Municipality etc., he must make available the tenanted building for the allotment to other needy persons.

(6) As seen earlier the objection in the instant case that the petitioner had not built or acquired any residential accommodation within the municipal limits of Kashipur where the disputed accommodation is located. In the written objections filed by the petitioner Paras 5 and 9 are pertinent in which he stated as under:

"Para 5 That the tenant or any of his family members have not built or otherwise acquired in a vacant state or got vacated any residential building in Kashipur city or within Municipal limits of Kashipur Municipality".

"Para 9That the tenant objector has certainly got constructed a new building in village Kechnagazi, Tehsil Kashipur, District Nanital, beyond the Municipal limits of Kashipur Municipal Board which does not come within the purview of the Act XIII of 1972.

From the impugned order which has already been reproduced in its entirety, would show that there is no discussion whatsoever about the petitioner''s case nor does that order show that there was any application of mind by the Prescribed Authority on the issue raised before him. The impugned order does not give any reason worth the name in support of the view taken therein.

(10) As pointed out earlier the order does not disclose that there was any application of mind by the Prescribed Authority when it declared the vacancy in respect of the disputed accommodation and consequently it failed to discharge its obligation of recording reasons in support of its order as it was required to do so under subsection (7) of Section 34 of the Act. The vacancy in respect of the disputed accommodation could only be declared after a finding had been recorded that the house built by the petitioner was within the municipal limits of Kashipur. Inspite of a specific objection and a case being setup by the petitioner in that respect the Prescribed Authority has not gone into that question."

(vi) In Satish Prasad case (Supra), a learned Single Judge of this Court held as under (Paragraph Nos. 11, 12, 13 and 15 of the said ARC):

(11) "Having heard Learned Counsel for the Parties, in my opinion, the Rent Control and Eviction Officer has committed manifest illegality in not adverting himself to the question as to whether Sri Gautam Mathur was inducted in the accommodation in dispute by petitioner or by his uncle Sri P.B. Chaudhary, , It cannot be denied that the question of vacancy being a jurisdictional fact must be ascertained strictly in accordance with the procedure laid down in the Act and the Rule. A Division Bench of this Court in case Maharaj Kumari Vimla Devi v. Rent Control and Eviction Officer, Massooree & Anr., reported in 1983 Vol. II ARC 225, has held that occupation of some persons without consent of the landlord will be of no consequence. The petitioner in his affidavit filed before the respondent No. 1 specifically stated that Sri Gautam Mathur was nephew of Sri P.B. Chaudhary and he was in fact inducted by Sri Chaudhary without consent of the petitioner. Sri Gautam Mathur in his affidavit also stated the same fact that he was allowed to occupy a few rooms by Sri Chaudhary during his stay at Allahabad as Visiting Professor of Allahabad University. In these facts and circumstances: it was obligatory on respondent No. 1 to determine as a fact as to at whose instance Sri Gautam Mathur occupied the accommodation in dispute. If he was allowed to stay in the accommodation by Sri Chaudhary and he continued there under the same authority, the origin of his possession was through Sri Chaudhary either as tenant or as licensee. His possession could not be through petitioner. There is no material on record to suggest that at any point of time the petitioner ratified the act of Sri Chaudhary in permitting Sri Gautam Mathur to occupy the accommodation in dispute. If possession of Gautam Mathur was not through the petitioner, his vacating the accommodation in dispute subsequently could not give jurisdiction to the Rent Control Authorities to deem the same as vacant and open for allotment. In my opinion, the respondent No. 1 has committed a serious omission in this respect.

(10) The second important aspect of the case is that the Rent Control and Eviction Officer has failed to record any finding about the extent of the actual accommodation occupied by Sri Gautam Mathur. The petitioner as well as Gautam Mathur in their affidavits have stated that Gautam Mathur occupied few rooms. Sri K.M. Dayal, Learned Counsel for Petitioner though contended that possession was confined to gallery and one room but I am not convinced with the submissions. The petitioner as well as Gautam Mathur could not muster up courage to specify the extent of the actual accommodation in possession of Gautam Mathur. The Rent Control Inspector in his report dated 1161981 mentioned the extent of the accommodation in dispute. According to this report there are nine rooms, besides kitchen, bathroom, latrines etc., respondent No. 2 in his counteraffidavit in paragraph 11 has stated that Sri Gautam Mathur occupied five rooms. The jurisdiction of the Rent Control Authorities could be confined only to the extent of actual accommodation in possession of Sri Gautam Mathur. The Rent Control and Eviction Officer was thus under obligation to ascertain the exact accommodation in possession of Sri Gautam Mathur.

(11) Sri K.M. Dayal, Learned Counsel for the petitioner, cited many authorities dealing with the question of removal of the household effects substantially. In my opinion, I need not discuss all those authorities for the simple reason that in the recent case the vacancy has been alleged on account of vacating accommodation in dispute by Sri Gautam Mathur which is not disputed even by the petitioner. It would be a different matter that possession of Gautam Mathur may or may have been at the instance of petitioner. So far the removal of the household effects substantially by Sri Gautam Mathur is concerned, it is not in dispute. If the petitioner is able to establish that Sri Gautam Mathur was not inducted by him nor he ever ratified the action of Sri P.B. Chaudhary in inducting him in the accommodation in dispute, the accommodation in dispute shall fall in category of such accommodation which was not let out ever before and the Rent Control and Eviction authorities shall cease to have jurisdiction to deal with the allotment of the same until it is thrown open to allotment by the petitioner by giving specific or implied consent as contemplated under Rule 10 of the Rules.

(15) The contention of Sri Dayal regarding violation of Rule 8 is also not acceptable, in the facts and circumstances of the present case. It cannot be denied that Sri Gautam Mathur actually vacated the accommodation in his possession long back. Further, the petitioner got full opportunity to contest his objection against vacancy. Thus the fact that the period was not indicated at the time of inspection of the building, loses its relevance in the facts and circumstances of the present case. However, it shall be open to the Rent Control and Eviction Officer to have a fresh inspection made either by himself or through any other officer deputed by him to ascertain the correct facts. Sri Negi, Learned Counsel for the respondents, submitted that the order of the Rent Control and Eviction Officer is concluded by findings of fact and inferences drawn by him are based on relevant considerations. It will not be out of place to mention here that the Rent Control and Eviction Officer disposed of the matter by a very sketchy and short order. It cannot be disputed that respondent No. 1 was deciding one question affecting very valuable rights of the parties. The respondent No. 1 has only mentioned the various affidavits filed by the parties in his order without disclosing the averments made therein. Such a course cannot be approved. The Rent Control and Eviction Officer ought to have discussed the evidence of the parties, if not in detail like a Civil Court, at least in such a manner which may show that he applied his mind to the contents of the various affidavits filed by the parties and the contentions advanced. The telephone number and length of possession could be relevant facts but these two facts could not be conclusive to draw an inference that Sri Gautam Mathur was residing as tenant of the petitioner. There is no material on record to show that Sri Gautam Mathur paid any Rent to the petitioner."

In the earlier part of this judgment, rival submissions made by the learned Counsel for the parties on the question of applicability of subsection (3) of Section 12 of the Act to the present case on the basis of the allegedly built/acquired houses, as mentioned above (namely, House No. 73, Sarai Khuldabad, Allahabad, House No. 139, Sarai Khuldabad, Allahabad and House No. 143, Bhusauli Tola, Allahabad), have been noted in detail. However, as the impugned order dated 2881993 is being quashed on the ground that the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) had not recorded findings on the relevant questions for deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act to the present case and has proceeded on considerations which are not relevant for deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act and as the matter is being remanded to the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) for deciding the same afresh in the light of observations made in this judgment, I am not expressing any opinion on the merits of the rival submissions in regard to the applicability or otherwise of subsection (3) of Section 12 of the Act to the present case on the basis of the allegedly built/acquired houses, as mentioned above.

It will be open to the parties to make their respective submissions before the respondent No. 1 and the respondent No. 1 will consider the same while deciding the matter afresh pursuant to the remand by this judgment.

Further, as noted above, the considering respondents have sought to rely on various documents which were not filed before the respondent No. 1, for showing the applicability of subsection (3) of Section 12 of the Act on the basis of the allegedly built/acquired houses, as mentioned above. Learned Counsel for the petitioner, as noted above, has submitted that the Writ Petition is to be decided on the basis of the record, as it existed before the respondent No. 1 and no fresh document could be brought on record by the contesting respondents to support the order impugned in the Writ Petition.

As noted above, the impugned order dated 2881993 is being quashed on the ground that the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) has not recorded findings on the relevant questions for deciding the question of applicability or otherwise of/subsection (3) of Section 12 of the Act to the present case and has proceeded on considerations which are not relevant for deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act and the matter is being remanded to the Rent Control and Eviction Officer (First), Allahabad, (respondent No. 1) for deciding the same afresh in the light of observations made in this judgment.

In the circumstances, it is left open to both the parties to lead further evidence before the respondent No. 1 on the question of applicability or otherwise of subsection (3) of Section 12 of the Act on the basis of the allegedly built/acquired houses, as mentioned above. The respondent No. 1 will give opportunity to both the sides to lead further evidence on the question of applicability or otherwise of subsection (3) of Section 12 of the Act to the present case on the basis of the allegedly built/acquired houses.

The respondent No. 1 will consider the said further evidence also while deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act to the present case on the basis of the allegedly built/acquired houses.

As this Court has not considered the merits of the rival submissions made by the learned Counsel for the parties on the question of applicability or otherwise of subsection (3) of Section 12 of the Act to the present case on the basis of the allegedly built/acquired houses and as the matter is being remanded to the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) for a fresh decision where further evidence, as mentioned above may be led, it is not necessary for me to examine the submission made by the learned Counsel for the petitioner that the Writ Petition is to be decided on the basis of record, as it existed before the respondent No. 1.

Again, as mentioned above, submissions have been made on behalf of the contesting respondents to show the applicability of subsection (3) of Section 12 of the Act to the present case, not only on the basis of the allegedly built/acquired houses, as mentioned above, but also on the basis of certain other houses allegedly built/acquired during the pendency of the Writ Petition.

Learned Counsel for the petitioner, as noted earlier, has submitted that the said subsequent developments cannot be considered in the Writ Petition, particularly when the same are disputed by the other side.

As the matter is being remanded to the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) for deciding the same afresh in the light of observations made in this judgment, I am of the opinion that it is in the interest of justice that the contesting respondents be permitted to bring on record before the respondent No. 1 the alleged subsequent developments, as mentioned above, on the question of applicability of subsection (3) of Section 12 of the Act to the present case by making proper pleadings and leading evidence in support thereof. The respondent No. 1 will permit the contesting respondents to bring on record the alleged subsequent developments, as mentioned above, on the question of applicability of subsection (3) of Section 12 of the Act to the present case by making proper pleadings and leading evidence in support thereof.

The petitioner will also be given opportunity to file proper replies/pleadings and lead evidence in rebuttal in regard to the alleged subsequent developments, as noted above.

The respondent No. 1 will examine the question of applicability of subsection (3) of Section 12 of the Act in the light of the alleged subsequent developments also, as noted above, keeping in view the pleadings made and evidence led by both the sides in this regard.

As I have not expressed any opinion on the matters of the rival submissions made in regard to the question of applicability or otherwise of subsection (3) of Section 12 of the Act to the present case and as the matter is being remanded to the Rent Control and Eviction Officer, (First), Allahabad (respondent No. 1) for deciding the same afresh and as the alleged subsequent developments may be brought on record before the respondent No. 1, as mentioned above it is not necessary for me to examine the submissions made by the learned Counsel for the petitioner on the question as to whether the alleged subsequent developments may be considered by this Court in the Writ Petition, particularly when the same are disputed by the other side.

Again, as the matter is being remanded to the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) for deciding the same afresh in the light of observations made in this judgment and as the questions relevant for deciding the question of applicability or otherwise of subsection (3) of Section 12 of the Act to the present case will now be considered and decided by the said Rent Control and Eviction Officer, it is not necessary for me to consider the submissions made by the learned Counsellor the petitioner on the question as to whether this Court in Writ Jurisdiction can consider new pleas on questions of fact, acting like Rent Control and Eviction Officer.

Before parting with the case, it is necessary to examine the submission made by the learned Counsel for the contesting respondents that this is not a fit case for exercising discretion under Article 226 of the Constitution of India, as the petitioner was evicted from the disputed portion on 1292001 and he must have settled elsewhere by now.

I have considered the submission made by the learned Counsel for the contesting respondents and I find myself unable to accept the same.

Eviction of the petitioner on 1292001 was in execution of the release order dated 3 82001 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) under Section 16(1)(b) of the Act after the dismissal of the Writ Petition in default by the order dated 272001.

The said release order dated 382001 was evidently dependent on the order dated 288 1993 declaring deemed vacancy in the disputed portion.

As mentioned above, the impugned order dated 2881993 declaring deemed vacancy in respect of the disputed portion, is vitiated and is liable to be quashed. Question of vacancy, as noted above, is a jurisdictional fact and goes to the root of jurisdiction of the Rent Control and Eviction Officer.

Moreover, the order dated 272001 dismissing the Writ Petition in default was recalled by the order dated 312002 and the Writ Petition was restored to its original number. The Court, by the said order dated 312002, inter alia, further directed that the parties would maintain status quo, as it stood on the date of the said order dated 31 2002.

In view of the facts and circumstances, mentioned above, I am of the opinion that it is a fit case for interference under Article 226 of the Constitution of India.

In view of the aforesaid discussion, I am of the opinion that the Writ Petition deserves to be allowed and the impugned order dated 2881993 passed by the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) (Annexure No. 5 to the Writ Petition) is liable to be quashed. The matter is liable to be remanded to the Rent Control and Eviction Officer (first), Allahabad (respondent No. 1) for a fresh decision in the light of the observations made above keeping in view the directions, inter alia, in regard to giving opportunity to both the sides for bringing on record the pleadings/evidences, as mentioned above.

Accordingly the Writ Petition is allowed. The impugned order dated 2881993 (Annexure No. 5 to the Writ Petition) passed by the Rent Control and Eviction Officer (first), Allahabad (respondent No. 1) is quashed. The matter is remanded to the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) to decided the same afresh in the light of the observations made in this judgment keeping in view the directions given above, inter alia, in regard to giving opportunity to both the sides for bringing on record the evidence/pleadings, as mentioned above.

It is further directed that the Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) will proceed to decide the matter expeditiously and in any case, within a period of 8 months from the date of production of a certified copy of ;his judgment before him by either of the parties.

Status quo order, as contained in the said order dated 312002 passed by the Court, will continue to remain in operation till the disposal of the matter of vacancy by he said Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) pursuant to this judgment or till the expiry of the said period of 8 months from the date of production of a certified copy of this judgment before the said Rent Control and Eviction Officer (First), Allahabad (respondent No. 1) by either of the parties, whichever is earlier.

It is made clear that this Court has not considered the question of applicability or otherwise of subsection (3) of Section 12 of the Act to the present case, as the said question will be considered and decided by the said Rent Control and Eviction Officer (First), Allahabad (respondent No. 1), as mentioned above.

In the facts and circumstances of the case, however, there will be no order as to costs.