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1988 DIGILAW 1077 (ALL)

Ahmad Bus v. 1St Add. Distt. Judge, Muzaffarnager

1988-11-24

S.D.AGARWALA

body1988
JUDGMENT : S.D.Agarwala, J. 1. This is a petition under Article 226 of the Constitution of India arising out of the proceedings under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 2. The premises in dispute is House No. 215, Sarwat Gate, Muzaffarnagar. Petitioner Ahmad Bux was a tenant in the said premises. M. A. Rahman, respondent No. 3 moved an application for the allotment of the accommodation in dispute on the ground that it should be deemed vacant under the provision of Section 12 of the Act. After the application was made the Rent Control Inspector submitted his report on 28-3-1978. After considering the report of the Rent Control Inspector the property was declared vacant by an order of the Rent Control and Eviction Officer, Muzaffarnagar dated 17-11-78. This order, dt. 17-11-78 was challenged by means of a revision under section 18 of the Act, The revision was also dismissed. After the dismissal of the revision the petitioner filed an application under Section 16 (5) for review of the order of the Rent Control and Eviction Officer dated 17-11-78. This application for review was also rejected. It is that order dated 2-5-81 which was challenged in revision before the District Judge, Muzaffarnagar. This revision came up for hearing before the 1st Addl. Distt. Judge who dismissed the revision by his judgment dated 22-10-1981. The petitioner has now challenged the order dated 22-10-81 by means of this petition. 3. I have heard learned counsel for the petitioner and learned counsel for respondent No. 3, M. A. Rahman. Learned counsel for the petitioner has raised two contentions before me. His first contention is that the property could not be deemed to be vacant under Section 12 of the Act and consequently the order declaring vacancy is void in law. The second contention raised by the learned counsel is that even if the property is deemed to be vacant in the eye of the law then too applicant-petitioner continued to reside in the property and as such tenancy will he deemed to be regularised under Section 14 of the Act. 4. The second contention raised by the learned counsel is that even if the property is deemed to be vacant in the eye of the law then too applicant-petitioner continued to reside in the property and as such tenancy will he deemed to be regularised under Section 14 of the Act. 4. In regard to the first contention raised by learned Counsel for the petitioner Section 12 (3 of the Act clearly provides that :- "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 situated, he shall be deemed to have ceased to occupy the building," In the instant case it is not disputed that the petitioner is residing in the property in dispute and it was taken for the said purpose. It has been further found that the petitioner has constructed a residential accommodation in the same city. In the circumstances, the terms of Section 12 (3) are fully applicable to the present case. The only argument raised by the learned counsel for the petitioner is that since the residential building has been constructed over shops, therefore. Section 12 (3) does not apply. I do not agree. Section 12 (3) clearly contemplates that if a residential building is constructed by a tenant then Section 12 (3) would apply. By the use of word 'building' here it is intended to mean 'unit of accommodations'. Merely because a 'unit of accommodation' which is residential is built over the shops, it does not make any difference. Section 12 (3) would be applicable. In the circumstance the first contention raised by the learned counsel for the petitioner is not substantiated. 5. In regard to the second contention if once a building is deemed to be vacant then in the eye of law the deemed vacancy continues. The occupation of the said tenant cannot be regularised under Section 14 of the Act as the said occupation is unauthorised and cannot be deemed to be with the consent of the landlord. 5. In regard to the second contention if once a building is deemed to be vacant then in the eye of law the deemed vacancy continues. The occupation of the said tenant cannot be regularised under Section 14 of the Act as the said occupation is unauthorised and cannot be deemed to be with the consent of the landlord. In writ petition No. 227 of 1985 Smt. Shashi Govil v. District Judge, Meerut decided on 3-11-1988, I have already taken the view that once the property is deemed to be vacant, the vacancy continues, the tenant can only occupy the said building through an allotment order obtained under Section 16 of the Act. This is clear from the provisions of Section 13 of the Act which provides that :- "Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31 be deemed to be an unauthorised occupant of such building or part." 6. Under the circumstance, once a building is deemed to be vacant the tenant cannot claim the benefit of Section 14 of the Act. The second contention of the learned counsel for the petitioner is also not well founded. In the result the writ petition fails and is dismissed. The parties shall bear their own costs. 7. The interim order dated 5-11-1981 is hereby vacated. Petition dismissed.