The determination of whether a building is deemed vacant under the U. P. Act No. 13 of 1972 lies with the District Magistrate, and his orders in this respect are not to be challenged in a civil court.

S.K. Phaujdar

1. THE present appellant filed a Suit No. 541 of 1992 against the present respondents for a declaration that he was the adopted son of one Banshi Dhar and was living with him. Banshi Dhar was a tenant in respect of the shop and house in question. On the death of Banshi Dhar, the plaintiff claimed to have become the tenant in respect of the house and shop and he made a prayer that his possession as a tenant is not to be disturbed by the respondents and the house may not be deemed vacant under the provisions of Sections 12 and 16 of the U. P. Act No. 13 of 1972. It was also alleged that the adoption was taken in 1966 and a paper was written and registered in 1981. THE plaintiff indicated that he was born in the year 1954. THE defendants included the daughters of Banshi Dhar and others. It was contended on behalf of the contesting defendants that there was no adoption as claimed and the suit was not maintainable in the Civil Court.

2. THE trial court (Ist Addl. Civil Judge, Sr. Div., Bulandshahr) decreed the suit on 30.1.1996. An appeal was preferred by one of the contesting defendants, which was numbered as Civil Appeal No. 22 of 1996, and it was allowed by the District Judge, Bulandshahr, on 17.7.1996, mainly on two grounds. It was held that the plaintiff could not prove adoption at all and it was further held that a declaration that the suit-property was or was not to be deemed vacant, is to be made by the District Magistrate and not by the Civil Court under the provisions of the U. P. Act No. 13 of 1972.

In the appeal, the learned counsel for the appellant and the learned counsel for the respondent caveator were both heard. On the question whether the Civil Court had a jurisdiction to take up the matter, reference may be made to the relevant provisions of the U. P. Act No. 13 of 1972. Section 12 of the Act defines when a building or part thereof will be deemed vacant. One of the conditions is that the house is allowed to be occupied by a person who is not a member of the family of the tenant. Section 12 (4) says that any building or a part which a landlord or tenant has ceased to occupy within the meaning of subsections (1), (2), (3), (3A) and (3B) shall, for the purpose of this Chapter, be deemed vacant. The condition as mentioned above that the tenant has allowed it to be occupied by a person who is not a member of his family is covered by subsection (1). Section 15 makes it obligatory for every landlord to give notice of vacancy in writing to the District Magistrate. The caveator (landlord) informed this Court that such an information was given to the District Magistrate on the death of Banshi Dhar as he had allowed Hari Om and his son, Jai Prakash, to live in the house who were not his family members. Section 16 requires the District Magistrate to determine if really the building would be deemed vacant. For that purpose, the District Magistrate is bound to give an opportunity to the landlord or the tenant of showing that Section 12 or any provision thereunder was not attracted to his case, only thereafter the District Magistrate would record an order for allotting any vacant house to any person. Section 37 of this Act states that when an order is made in exercise of power conferred under this Act, it shall not be called in action in any court. A composite reading of these sections clearly indicates that the power to determine if a house would be deemed vacant under the provisions of Section 12 of the U. P. Act No. 13 of 1972 lies with the District Magistrate and his orders in this respect are not to be challenged in civil court. This suggests that the civil court will be incompetent to decide the question which should be decided by the District Magistrate. The first ground for acceptance of the appeal by the first appellate court, therefore, appears to be a correct one.

3. SECOND aspect on which the first appeal was accepted was that the factum of adoption was not accepted. The alleged adoption took