Judgment

RANGANATH MISRA, J.:- The appellant, who filed a writ application before the Allahabad High Court assailing the revisional order of the District Judge of Aligarh, is in appeal by special leave.

2. One Manzoor Hussain was admittedly the tenant of a premises located at Aligarh. He died in 1969 leaving behind a widow and three sons - Mohd. Azeem (the appellant), Mohd. Naim, Mohd. Nadeem and a daughter - Nuzhat. The widow and the sons and the daughter of Manzoor continued to live in the tenanted premises on payment of rent. It is the case of the appellant that being the eldest member of the family he was paying that rent. The Rent Control Inspector submitted a report on June 22, 1983, that Naim, appellants brother, had built a house four or five years before in Amir Nisan, a part of the city of Aligarh and, therefore, the tenancy must be deemed to have terminated in view of the provisions contained in section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act for short). When notice was issued from the Court of the Rent Control and Eviction Officer, Aligarh, respondent 2 herein, the appellant entered contest by filing an affidavit to the effect that he has been living with 13 members of his family in the premises and rent was being collected from him following the death of his father Manzoor Hussain Merely because Naim had built a house in 1980, the tenancy in favour of the other heirs of Manzoor Hussain would not terminate and in such circumstances the premises cannot be held to have become vacant and available for allotment to some other person. The Prescribed Authority did not accept the contention of the appellant and held that the house in question must be deemed to have become vacant when Naim, who was a member of the family, had built a house. Appellant carried a revision before the District Judge, respondent 1, which was dismissed. The revisional authority, placed reliance on a Full Bench decision of the Allahabad High Court in the case of Smt. Rama Devi Shakhya v. Addl. District Judge, Lucknow, 1981 All Rent Cas 305. The Full Bench had held

"Where, one of the co-tenants builds or otherwise acquires another residential building within the meaning of sub-s. (3) of S. 121 the tenant, namely, the entire set of co-tenants shall be deemed to have ceased to occupy the building under his sub-tenancy. It cannot be that the share belonging to the co-tenant in default alone shall fall vacant."

2A. The writ application filed by the appellant before the High Court was summarily dismissed as the Court was of the view that it was not a fit case for interference under Art. 226 of the Constitution.

3. At the heating the decision of the Full Bench of the Allahabad High Court in Rama Devis case was placed before us. An attempt was made on the appellants side to show that the. interpretation put on S. 12(3) of the Act was erroneous. and a wrong conclusion had been reached. Counsel for respondent 3 appointed by the SC Legal Aid Committee supported the judgment and relied upon its conclusion for upholding the decision of the learned District Judge.

4. Reference to some of the provisions of the Act becomes necessary before we, proceed to make an analysis of the Full Bench decision. Chapter III of the Act makes provision for regulation of letting. Section 11 provides that "no person shall let any building except in pursuance of an allotment order issued under S. 16". Section 12 makes provision for deemed vacancies of buildings in certain cases. Sub-s. (3) of S. 12 is relevant for the disposal of the appeal. That sub-section runs thus:

"In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified. area or town area in which the building under tenancy is situate he shall be deemed to have ceased, to occupy the building under his tenancy : ........"

As the words "t