IMPORTANT POINT
Tenant already acquiring alternative accommodation is not protected u/s 12(3), Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

JUDGMENT

ADARSH KUMAR GOEL J.

1. Leave granted.

2. This appeal has been preferred against the Judgment and Order dated 7th May, 2007 of the High Court of Judicature at Allahabad, Civil Side in Civil Miscellaneous Writ Petition No.47201 of 2002.

3. The question for consideration is whether Section 12(3) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short “the Act”) providing for ‘deemed vacancy’ is applicable to a situation where the tenant or a member of his family builds, acquires or otherwise gets a vacant building in the area concerned after commencement of the tenancy but prior to application of the Act to the tenancy in question.

4. Brief reference to facts giving rise to the question is necessary. The accommodation in question was let out for residential purpose w.e.f. 1st June, 1981 and was assessed for house tax for the first time on 1st October, 1983. Under Section 2(2) of the Act, the Act which otherwise came into force on 15th July, 1972, was not applicable to the building during ten years from the date on which its construction was completed. The construction is deemed to be completed, inter alia, on the date on which the first assessment of letting value is made by the local authority concerned, which in the present case was 1st October, 1983. Thus, the Act became applicable to the accommodation in question in the year 1983. On 7th June, 1987, the tenant purchased another residential house bearing number 198 at Safipur-II, Kanpur Nagar.

5. The City Magistrate, Kanpur, in his capacity as Rent Controller, vide Order dated 5th September, 2002, declared the premises in question to be vacant under Section 12(3) of the Act on account of purchase of residential house by the wife of the tenant in the year 1987. The tenant filed Civil Miscellaneous Writ Petition No.47201 of 2002 against the Order of the Rent Controller declaring the premises in question to be vacant and also the subsequent order dated 30th September, 2002 releasing the accommodation in favour of the landlord under Section 16 of the Act. The High Court accepted the petition holding that no vacancy can be declared if the tenant or his family member purchased the house before the Act became applicable. Reliance was placed on a Five-Judge Full Bench of the High Court in Mangi Lal vs. Additional District Judge & others., (1980) Allahabad Rent Cases, 55. It is against the said Order that the present appeal has been preferred.

6. We have heard learned counsel for the parties.

7. The Act provides for the regulation of letting and rent and the eviction of tenants from certain classes of buildings situated in urban areas and for matters connected therewith. Reference to all the provisions of the Act may not be necessary for adjudication of the issue involved, except to Section 12 which provides for deemed vacancy of a building in certain cases. Section 12(3) reads as follows :

“12(1) ………….

(2) …………..

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

Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.

Explanation.--For the purposes of this 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 tena