The acquisition of a separate residential building in the same city in a vacant state by a family member of the tenant can lead to a deemed vacancy as per Section 12(3) of the U. P. Urban Buildings (Regulation of Letting, Rent, and Eviction) act, 1972.

( 1 ) BY means of this writ petition under Article 226 of the Constitution of India, the petitioner Smt. Lilawanti has challenged the order dated 26-2-2001. Annexure 1 to the petition, whereby a deemed vacancy has been declared by the Rent Control and Eviction Officer/vith Additional City Magistrate, Kanpur Nagar in respect of house No. III-A/214 Ashok Nagar, P. S. Nazirabad, Kanpur Nagar.

( 2 ) COUNTER and rejoinder affidavite have been exchanged. Heard Sri W. H. Khan, learned counsel for the petitioner and Sri Ravi Kant, learned Senior Advocate appearing on behalf of the respondent No. 2.

( 3 ) IT is an indubitable fact that late Radha Kishan Chhabara was the original tenant in the premises aforesaid. He died on 16-10-1990 leaving behine him the present petitioner (Widow) and three sons, namely, Ashok Kumar Chhabara, Prem Chhabara and Rakesh Chandra Chhabara. Whereabouts of Rakesh Chandra Chhabara are not known as he is missing for a considerable long time. The respondent No. 3- Dharmendra Kumar moved an application for allotment of the tenanted premises on the ground that a deemed vacancy has come into being in view of the provisions of Sub-sec. (3) of S. 12 of the U. P. Urban Buildings (Regulation of Letting, Rent, and Eviction) act, 1972 (Act No. XIII of 1972) (hereinafter referred to as the Act) as Ashok Chhabara son of the original tenant has acquired separate residential accommodation within the Municipal limits of Kanpur Nagar. After obtaining the report of Rsnt Control Inspector and completing necessary formalities, the Rent Control and Eviction Officer, by the impugned order dated 26-2-2001 declared the tenanted accommodation as vacant. A finding of fact was recorded by the Rent Control and Eviction Officer that Ashok Chhabara had acquired house No. D-41 Govind Nagar in the year 1984; another house No. 118/316 Kaushalpuri in the year 1985 and the third7 house No. 120/192-A, Lajpat Nagar in the year 1989, i. e. during the lifetime of his father late Radha Kishan Chhabara and consequently, a deemed vacancy under the provisions of S. 12 (3) of the Act has occurred.

( 4 ) THE petitioner Smt. Lilawanti has challenged the order of vacancy on variety of grounds. It is asserted that Ashok Kumar Chhabara has separated during the lifetime of his father and was not normally residing with him when he acquired a house on rent in Govind Nagar, then in Kaushalpuri and then in Lajpatnagar; that he did not inherit the tenancy on the death of his father and consequently, even if he took any house on rent at different places, no legal vacancy arose in respect of the accommodation of which late Radha Kishore Chhabra was the tenant and after his death, the (widow) and Prem Chhabara (son) are the joint tenants.

( 5 ) SHRI W. H. Khan, learned counsel for the petitioner urged that though Ashok Chhabra is the son of the petitioner and was initially living in the tenanted house, he ceased to occupy the same during the lifetime of his father as he separated from the family and merely becuase a married son has gone to a rental house to settle himself in an independent capacity, a deemed vacancy under sub-sec. (3) of S. 12 would not arise. The thrust of the submission of Sri W. H. Khan was that since Ashok Chhabara has ceased to be the member of the family of the tenant and has not been normally residing with him nor was wholly dependent on the tenant, the provisions of sub-section (3) of Section 12 of the Act shall not be attracted. In support of his contention, Sri Khan placed reliance on explanation (b) to the proviso to sub-section (3) of Section 12. He also placed reliance on certain observations of the Apex Court in Harish Tandon v. Addl. District Magistrate, Allahabad, (1995) 1 SCC 537 : (AIR 1995 SC 676 ). Sri Ravi Kant has repelled the above submission and urged that there can be no escape from the fact that Ashok Chhabara son of the tenant who was living in the tenanted house has acquired a separate house and on account