A building is deemed vacant under Section 12(1)(c) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, if the tenant and his family have taken up residence elsewhere.

R. H. Zaidi, J.

1. By means of this petition under Article 226 of the Constitution of India petitioner challenges the validity of orders dated 13-8-1986, whereby the revision filed by the respondent No. 3, Smt. Janak Dulari Mishra, land-lady against the order dated 6-11-1995 has been allowed and the order dated 7-3-1995 whereby the building in question was declared vacant by the respondent No. 2.

2. BRIEF facts of the case, which are relevant for the purpose of resolving the controversy involved in the case are that on an application filed by respondent No. 3 proceedings under Section 16 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for short the Act, were initiated. The Rent Control Inspector after making inspection submitted his report. The case of the respondent No. 3 in brier was that the wife of the petitioner Smt. Ram Rani Devi who was the members of petitioner's family acquired house No. 386/e/2, Panki Gangaganj Scheme; Kanpur. Therefore, the house in dispute which is a residential building shall be deemed to be vacant under the law. Petitioner con tested the said application and filed his affidavit and objection before the respondent No. 2. He has asserted that the building in question was not vacant and the same was in his actual occupation for the last several years. It may be noted that in the said affidavit, the plea of divorce to his wife was not taken. The respondent No. 3, thereafter, filed her affidavit and the affidavit of her witnesses to the effect that the petitioner in the name of his wife acquired house No. 386/e/2, referred to above. The petitioner, hereafter, took the plea that Smt. Ram 3. ani Devi was divorced by him and she was not the member of his family. Therefore, acquisition of the said house by Smt. Ram Rani Devi was of no consequence.

Parties in support of their cases produced evidence oral and documentary before the respondent No. 2. Respondent No. 2 held that the petitioner has acquired house No. 386/e/2, Panki Gangaganj Scheme, Part-2, Kanpur possession over which was also delivered to her on 1-10-82, in the name of his wife. The said findings is based on the documentary evidence which consisted of the letters of K. D. A. and agreement entered into between the parties etc. It was also held that there was no evidence on the record to prove the alleged divorce by the petitioner to his wife. The Prescribed Authority also observed that no custom of divorce was proved and in the Vaish community to which the petitioner belongs there was no such custom of oral divorce. Having recorded the said findings it was held, that the building in question was vacant, in view of the Provisions of Section 12 of the Act, by the Prescribed Authority vide its order dated 7-8- 95.

3. IT appears that after declaration of vacancy the application of respondent No. 3 landlady, for release of the building was considered by the Prescribed Authority and was rejected vide order dated 6-11-1995. The respondent No. 3, therefore, filed a revision against the order of the Prescribed Authority before the revisional Authority, the respondent No. 1. The revision filed by the respondent No. 3 was allowed by respondent No. 1 and the building in question was released in favour of the said respondent by the respondent No. 1. The petitioner therefore, filed the present petition challenging the validity of the orders dated 13-8-86 and 7-8-1995 as stated above.

4. I have heard learned counsel for the petitioner and also carefully perused the record.

Learned counsel for the petitioner vehemently urged that the findings recorded by the authorities below are per verse and the orders passed by them are wholly illegal and they are liable to be set-aside. It was also contended that from the evidence of the record it was proved that the petitioner had divorced his wife, therefore acquisition of residential house by her was of no consequence. It was also urged that the respondent No. 2 did not record a