JUDGMENT R. B. Mehrotra, J. 1. By means of present writ petition, under Article 226 of the Constitution, the petitioner has challenged the order of the Rent Control and Eviction Officer, Rishikesh, District Dehradun dated 2-5-86, by which the Rent Control and Eviction Officer rejected the petitioner's application for treating the premises in dispute to be vacant and the order dated 11-7-88 of the Additional District Judge (III) Dehradun, dismissing the petitioner's revision, filed against the order of the Rent Control and Eviction Officer dated 2-5-86. 2. The controversy involved in the' case is as to whether the premises- in dispute has fallen vacant or not ? The two courts below have held that the tenant respondent no. 3 continued to be the tenant of the premises in dispute and the premises did not fell vacant under the provisions of section 12 (3) of the Uttar Pradesh Urban Building (Regulations of letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'). The necessary facts, for the decision of the case in brief, are as under : The accommodation in dispute is a portion of Dharmshala known as 'Asha Mai Dharmshala' situated at Haridwar Road, Rishikesh and is managed by a Trust. The petitioner is the President of the Trust. In the year 1958, the accommodation in dispute, comprising of four rooms (16' x 12'; 14' x 12' and 12' x 12' alongwith Varandah, kitchen, latrine, bath and one room 12' x 8', which was used as a shop) was let out to Chatar Sen Jain, respondent No. 3. Admittedly the accommodation in dispute was let out for residential purpose. In the year 1967, the respondent no. 3 purchased of premises of 6-Malviya Road, which situates within the municipal limit of Rishikesh. 3. The case of the petitioner is that after purchasing aforesaid property, the respondent no. 3 constructed the said house and added number of living rooms. The said construction was done without taking permission of the Municipal Board. Consequent thereto, a notice was given by the Nagar Palika to respondent no. 3 in reply of the said notice, which has been filed as Annexure 2 to the writ petition, which is not disputed the respondent no. 3 stated that the house, which the respondent no 1 has purchased has not yet been completed and the reply should be treated as an information that the respondent no. 3 in reply of the said notice, which has been filed as Annexure 2 to the writ petition, which is not disputed the respondent no. 3 stated that the house, which the respondent no 1 has purchased has not yet been completed and the reply should be treated as an information that the respondent no. 3 is going to construct the house. By another letter, addressed to Executive Officer, Municipal Board, Rishikesh, the respondent no. 3 prayed for sanction of his map, wherein it was stated that on the northern side of the house in upper portion a two room flat is being constructed and rest of the house remains the same. The map should be sanctioned at a very early date. Along with the aforesaid letter, a map was also enclosed. This letter and the map ha s been filed as Annexures 3 and 4 to the writ petition The petitioner further alleged that initially there were three rooms in the building, when it was purchased by the respondent no. 3. Respondent no. 3 subsequently constructed 8 more rooms, kitchen, latrine and bath rooms. It has also been stated by the petitioner that apart from this, the respondent no. 3 has also constructed a big market comprising of 37 shops at Railway Road, Rishikesh. However, the said statement has no relevance to the controversy involved in the present matter. The controversy involved confines to the question as to whether after constructing a new house at 6-Malaviya Road, and having shifted with his family from the house in dispute to premises at 6-Malviya Road in the same city, whether the house in dispute has fallen vacant under section 12 (3) of the Act or Not. 4. The case has a chequered history. One Sri Y. P. Dhuliya made an application on 4-3-82 for allotment of the premises in dispute on the ground that the respondent no. 3 has built a residential building in the same city and has shifted residence from premises in dispute. The building is vacant under the provisions of section 12 of the Act. As such, the same should be allotted to the applicant. On the application of Sri Y. P. Dhuliya, the Rent Control Inspector visited the premises on 4-3-82 and found that the respondent no. 3 was in occupation of four rooms, kitchen, latrine, bath and one shop at 6 Malviya Road, Rishikesh. As such, the same should be allotted to the applicant. On the application of Sri Y. P. Dhuliya, the Rent Control Inspector visited the premises on 4-3-82 and found that the respondent no. 3 was in occupation of four rooms, kitchen, latrine, bath and one shop at 6 Malviya Road, Rishikesh. A copy of the report of the Inspector has been filed as Annexure 5 to the writ petition. On the request of the respondent no. 3, an inspection was made by the Rent Control and Eviction Officer himself on 13-7-82, who in his inspection note, stated that respondent no. 3 was not using the accommodation in dispute for residential purpose but had only stored sacks in the room. The copy of the inspection note has been filed as Annexure 6 to the writ petition. After exchange of affidavits and hearing parties, the Rent Control and Eviction Officer by his judgment dated 27-8-82, declared the permises to be vacant. The contention of the tenant that the accommodation in dispute was not a residential accommodation was negatived. However, later on, an application made by respondent no. 3, the Rent Control and Eviction Officer by his order dated 22-12-82, reviewed his earlier order dated 27-8-82 and held the premises in dispute is not vacant Aggrieved by the aforesaid order, the petitioner preferred a revision to the learned District Judge, who allowed the revision by his order dated 23-9-83 and held that the application for review itself was not maintainable. Aggrieved by the aforesaid judgment of the District Judge, the respondent no. 3 filed a writ petition, which was numbered as writ petition no. 11781 of 1983 and this Court dismissed the writ petition vide its judgment dated 17-4-83. At that stage, the Hon'ble High Court took a view that the question of vacancy can be decided at a stage, when the premises is either allotted in favour of some body or the same is released in favour of the landlord. The question of vacancy was left open by the High Court to be decided after the premises in dispute is either released in favour of the petitioner landlord or is allotted in favour of some body else, Subsequent to the judgment of the Hon'ble High Court, the premises in dispute was released in favour of the petitioner by the order of the Kent Control and Eviction Officer Rishikesh, Dehradun dated 25-4-84. 5. 5. Aggrieved by the aforesaid order, the respondent no. 3 preferred a revision before the District Judge, Dehradun, which was transferred to Additional District Judge, Dehradun, who again allowed the revision of respondent no. 3 and remanded back the matter to the Rent Control and Eviction Officer for re-consideration. This time the matter after having been remanded, the Rent Control and Eviction Officer vide his order dated 2-5-86, rejected the petitioner's application and held that the premises in dispute is not vacant. Aggrieved by the aforesaid order the petitioner preferred a revision which has. also been rejected by the Additional District Judge (III) Dehradun, vide his judgment dated 11-7-88. Both these judgments of the Rent Control and Eviction Officer dated 2-5-86 (filed as Annexure 22) and the judgment of the Additional District Judge, Dehradun dated 11-7-88 (filed as Annexure 25) are under challenge in the present writ petition. 6. I have heard Sri L. P. Naithani, Senior Advocate as counsel for the petitioner and Sri Ravi Kiran Jain, Senior Advocate, as counsel for the respondent. The Rent Control and Eviction Officer recorded a finding that the accommodation in dispute was a non-residential accommodation. As such, the provisions of section 12 (3) of the Act are not attracted and the premises in dispute cannot be declared to be vacant. Accordingly, he rejected the petitioner's application for declaration of vacancy in respect of the aforesaid premises. The Rent Control and Eviction Officer has, however, also held that since prior to 15-6-76, the tenant was in occupation of the accommodation in dispute for non-residential purposes, so his tenancy stands regularised under the provisions of section 14 of the Act and held that for this reason also the premises cannot be deemed to have fallen vacant under section 12 (3) of the Act. 7. The revisional court affirmed the findings of the Rent Control and Eviction Officer and held the accommodation in dispute to be non-residential premises and further held in view of the fact that since the accommodation in dispute was non-residential, the provisions of section 12 (3) of the Act are not attracted. The revisional Court also held that it is not clear from the record that the respondent no. 3 constructed the building at 6-Malviya Road, Rishikesh prior to enforcement of U. P. Act No. 13 of 1972. The revisional Court also held that it is not clear from the record that the respondent no. 3 constructed the building at 6-Malviya Road, Rishikesh prior to enforcement of U. P. Act No. 13 of 1972. As such, if the residential accommodation, at 6-Malaviya Road, Rishikesh, was constructed after the year 1972, the provisions of section 12 (3) of the Act will be attracted. 8. Sri L. P. Naithani the learned senior Advocate made two submissions before me. Firstly that the finding of the Rent Control and Eviction Officer and the Illrd Additional District Judge, holding the accommodation in dispute to be non-residential, was patently illegal and was contrary to the mandate of the statute. He submitted that the nature of the accommodation is to be determined on the basis of the nature of the construction of the building and not on the basis of the nature of the user of the building. The user of the building cannot change the nature of the building. In the present case, it is admitted on record that initially the building was a Dharmshala and four rooms were let out to respondent no. 3 for residential purposes and they continued to be used for residential purposes till respondent shifted his residence at 6-Malviya Road, Rishikesh. Only after that the respondent no. 3 used the premises for non-residential user. As such, more non-residential user of the premises cannot be the criteria for holding the building to be nonresidential. SRI Naithani submitted that the findings of the both the courts below were vitiated in law as due to wrong approach of the problem the courts below have held the premises to be non-residential. In support of his contention, SRI Naithani cited the decisions in Busching Schmits v. Menghani, AIR 1977 SC 1569 and R. C. Mullick v. Additional District Magistrate Civil defence/R. C. and E. C. Allahabad, 1982 (2) ARC 325. In support of his contention, SRI Naithani cited the decisions in Busching Schmits v. Menghani, AIR 1977 SC 1569 and R. C. Mullick v. Additional District Magistrate Civil defence/R. C. and E. C. Allahabad, 1982 (2) ARC 325. In the later case learned single judge of this Court has followed the earlier Supreme Court's decisions in Bushing Schmits case and have held that : "In my opinion the present purpose of use to which the building is being put ought not to be the sole or conclusive test, for otherwise it would be so easy both for the tenant as well as for the landlord completely to frustrate the object and purpose of the Act by putting the building for a length of time to a non-residential purpose, thereby taking it wholly out of the grip or reach of the Rent Control Authorities, who are charged with the duty of meeting the acute crisis prevailing in Urban areas in regard to residential accommodation. In my judgment, the power of the Rent Control Authorities to let and release residential accommodation cannot be taken away or thwarted by such subterfuges or fortuitious circumstances as the use to which a building may have been put at any given moment or event for some length of time, however, short though it may." 9. Sri Naithani pointed out from the record of the case that it was admitted to the respondent-tenant that he was initially living in accommodation in dispute and later on he has shifted his residence from the accommodation in dispute to the premises at 6-Malviya Road, Rishikesh and had been using this premises as bis godown. The decision of this Court, relying on Bushing Schmitz case is very clear on the point that mere user will not be determinative of the nature of the accommodation. The nature of accommodation will depend on the nature of the construction of the building, the situation of the building, purpose for which the building was constructed and such other practical aspects, which can be determinative of the nature of the accommodation, SRI Naithani specifically referred to the report of the Inspector (filed as Annexure 5 to the writ petition), wherein it is specifically stated that the respondent-tenant has admitted that he was living in the accommodation in dispute with his family. Paragraph 3 of the report is specific about it. Paragraph 3 of the report is specific about it. Likewise another report of the Rent Control Inspector dated 6-10-82 (paragraph 4) shows the nature of the Building, which shows that four rooms of the Dharmshala are attached with the facility of Kitchen, bath room, latrine etc. Several other documents, referred to by SRI Naithani, being report dated 29-9-82 (Annexure 9 to the writ petition) also demonstrates that the building was of residential character. SRI Naithani submitted that in the face of these evidences, the courts below were highly unjustified in taking the view that the building was non-residential. 10. On the second point, Sri Naithani submitted that the revisional court has erred in law in arriving at a finding that proviso-2 of section 12 (3) of the Act is not attracted. Sri Naithani 's contention is that there was ample evidence on record to prove that the building was constructed prior to 15-7- 72 and the revisional court has failed to take the aforesaid evidence into consideration, the finding of the revisional court that the building has been constructed after 15-7-72, is patently perverse and is based on non-consideration of material evidence on record. The submission is that this finding of the revisional court has been recorded ignoring the material evidence on the record. As such, the judgment deserves to be set aside and the matter should be remanded back to the revisional court for deciding afresh for the decision of the aforesaid question, after taking into consideration the evidence produced by the petitioner-landlord for proving that alternative residential accommodation in the same city, was constructed by the respondent tenant prior to the enforcement of the Act. Sri Naithani has referred to the evidence, which has not been taken into consideration by the revisional court and which was available on the record for contending that this material evidence was completely ignored by the revisional court. In the objection bled by the respondent no 3 himself in the court of Rent Control and Eviction Officer in reply to the application moved by Sri Y. P. Dhuliya, in paragraph 7, the respondent tenant has stated as under :- "Facts are that the objector/sitting tenant constructed his own house at 6-Malviya Marg, Rishikesh, about in the year 1968 and since thereafter, he is living with his family in his own house. Any contention contrary to this is wrong and denied." This statement is at page 85 of the paper book and this is a part of the objection filed by the respondent no. 3 himself on 12-5-82. Then Sri Naithani referred to Annexure I of the writ petition, which is a notice, given to the respondent by the Municipal Board, Rishikesh at page 11 of the paper book. The said notice is dated 20-6-69 wherein it has been state "you have constructed your house without any information to the Municipal Board." This notice is addressed to Respondent no. 3, at 6-Malviya Marg address. Sri Naithani referred to Annexure 2 page 12 of the paper book, in which the respondent no. 3 admitted the construction of the house and stated that only some small work is left, in completing the construction. Then another letter of respondent no. 3, which has been filed as Annexure 3 to the writ petition, wherein the respondent no. 3 has admitted that the house is being constructed at 6- Malviya Road, Rishikesh, wherein in paragraph 3 of the report of the Rent Control Inspector, respondent no. 3 has admitted that now he is living at 6-Malviya, Road, Rishikesh. This statement is at page 17 of the paper book. Then at page 24 of the paper book (Annexure 8), wherein there is a statement of one Jugul Kishore Kapoor, who has stated that Chatar Sen has celebrated the construction of his house 14 years back and since then he is residing in the said house Sri Naithani's submission is that the revisional court has not at all cared to even discuss or refer these statements and have jumped on the conclusion that respondent no. 3 has constructed the house after 1972 and erred in holding that proviso to section 12 (3) of the Act is not attracted and the building cannot be deemed to be declared to be vacant. For convenient reference, the relevent portion of section 12 of U. P. Act No. 13 of 1972 is reproduced below :- "12. 3 has constructed the house after 1972 and erred in holding that proviso to section 12 (3) of the Act is not attracted and the building cannot be deemed to be declared to be vacant. For convenient reference, the relevent portion of section 12 of U. P. Act No. 13 of 1972 is reproduced below :- "12. Deemed vacancy of building in certain cases :- (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if – (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the rase may be, the tenant shall be deemed to have ceased to occupy the building. (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." For the proposition that if the material evidence ignored, a finding of fact, recorded by the courts below is not binding, Sri Naithani has relied upon the following decisions :- B. P. Sewal v. District Judge, Dehradun, 1982 (2) ARC 504 (Para 16), Har Prasad Verma v. Illrd Additional District Judge, Mathura, 1984 ARC 65, (Paragraph 4). 11. 11. In reply to the aforesaid submissions Sri Ravi Kiran Jain, learned Senior Advocate for the respondent have made the following submissions :- (1) Admittedly on the own showing of the petitioner landlord, a fresh tenancy has come into existence on 13-4-71 in respect of the premises in dispute, the premises was let out by the petitioner-landlord in favour of the respondent-tenant for non-residential user, as such, the premises can not be to have fallen vacant on the ground that the respondent-tenant constructed a new building prior to 15-7-72. (2) That the petitioner-landlord was under an obligation to intimate the vacancy .to the Rent Control and Eviction Officer under section 15 of the Act. The petitioner having not done so, petitioner-landlord loses his right for moving application for release of the premises. (3) Since the tenancy has come into existence in the year 1971 for nonresidential purposes and the said tenancy having been regularised under section 14 of the Act for non-residential user, the premises cannot be deemed to be vacant under section 12 (3) of the Act in view of over-riding effect of section 14 of the Act. (4) The petitioner-landlord should have approached the court within reasonable time and since the alleged vacancy arose in the year 1968 and the landlord decided to move the application only in the year 1981 after a lapse of 13 years' the petitioner landlord should not be heard, as he loses his right to move an application for deemed vacancy by acquisence and the application is liable to be rejected on the ground that the same was moved much after a reasonable time. 12. Elaborating the aforesaid submissions, Sri Jain contended that the petitioner has himself admitted in paragraph 12 of the writ petition that fresh tenancy has come into existence i.e. on 13-4-1971, so the application for declaring the premises to be vacant could have been entertained only on the allegation that the respondent-tenant has built another residence after 13-4-71. In the present case, the allegations are that the respondent-tenant has constructed building some time in the year 1968. As such, the application was not maintainable and was liable to be rejected. Elaborating the second point Shri Jain contended that under section 15 of the Act, an obligation has been cast on the landlord as well as on the tenant to intimate the vacancy to the District Magistrate. As such, the application was not maintainable and was liable to be rejected. Elaborating the second point Shri Jain contended that under section 15 of the Act, an obligation has been cast on the landlord as well as on the tenant to intimate the vacancy to the District Magistrate. Since admittedly the present petitioner-landlord has not intimated any such vacancy, the petitioner-landlord loses his right to get the premises released in his favour. In this view of the matter, the petitioner's writ petition deserves to be rejected, as he has lost his right for getting the premises released in his favour. 13. The further submission of Sri Jain is that on the own showing of the petitioner-landlord a fresh tenancy has come into existence in the year 1971. The earlier history of the case in respect of the premises in dispute stands washed out. Admittedly right from 1971 till the application was moved for declaring the premises to be vacant i.e. in the year 1981, for 10 years, the premises was being used for non-residential purposes within the knowledge of the petitioner-landlord and any irregularity in that connection stands regularised by the over-riding effect of the provisions of section 14 of the Act. As such, now it is not possible for any court to determine the question as to whether the premises in dispute was a residential premises or a non-residential premises. Since non-residential user of the building also stands regularised by the over-riding effect of section 14 of the Act, section 12 (3) of the Act will have no application in the said case. 14. Lastly, Sri Jain has contended that since the application for declaring the premises to be vacant was moved after a lapse of 13 years, on technical ground of the building being used for non-residential purposes, such a belated application should not be entertained and in support of the aforesaid contention, Sri Jain relied upon a decision of Supreme Court in Munshi Ram v. S. P. Pathak, AIR 1983 SC 1239 . Sri Jain has submitted that in view of this submission, the petitioner's case deserves to be dismissed, as these submissions completely nullify the stand of the petitioner and this Court should not entertain the writ petition, as the petitioner's case is legally untenable in law and no useful purpose will be attained by remanding the case back to the revisional court, as on the basis of these contentions, raised by Sri Jain, the application of the petitioner-landlord is bound to be rejected. I have heard Sri Naithani in rejoinder also, who has countered the submissions of Sri Jain on all the aforesaid points. 15. Sri Tain has raised the contentions, which do not find any consideration in the judgments of the courts below except a reference in the judgment of the Rent Control and Eviction Officer regarding regularisation of tenancy under section 14 of the Act, but the said reference even does not attempt to make out a point which SRI Jain has tried to point out under section 14 of the Act. Therefore, before dealing with the submission of SRI Jain, it must be made clear that the aforesaid submissions have been made for the first time in this court and were never raised on behalf of the respondent-tenant either before the Rent Control and Eviction Officer or before the revisional Court. The first question which requires consideration is regarding the nature of the accommodation. 16. The nature of the accommodation in the present case is admittedly four living rooms of the size of 16' x 12', 14 x 12 and 12 x 12' along with kitchen, bath room and latrine in a 'Dharmshala' were constructed far back in the year 1958 and were let out to respondent no. 3 for residential purposes. The respondent no. 3 used the aforesaid premises for residential purposes right from 1958 till 1968, when he constructed a new house and shifted his residence to 6-Malviya Road, Rishikesh. By the nature of construction of the accommodation in dispute and by the fact that for more than 10 years the house was being used for residential purposes and was also let out for residential purposes, it is clear that the house was a residential house. By the nature of construction of the accommodation in dispute and by the fact that for more than 10 years the house was being used for residential purposes and was also let out for residential purposes, it is clear that the house was a residential house. It seems that some time in the year 1971 the petitioner-landlord agreed to let out the house for non-residential user i.e. for the purposes of using the rooms of the residential house for purposes of storing goods of respondent no. 3. The question is as to whether by mere circumstance that a landlord has permitted the tenant to use a residential building for non-residential purposes, can it be said that the building has become a non-residential building ? The answer is clearly in the negative, as mere user of a building cannot be determinative of the nature of the building. This Hon'ble Court in R. C. Mullick case (supra), following the Supreme Court's Bushing Schmits's case (supra) has clearly held that merely the present user of the building cannot be a sole or conclusive test for determining the nature of the building. In view of the law laid down by the Hon'ble Supreme Court in Bushing Schmits case (supra), the present accommodation was clearly a residential building and the courts below have erred in law in taking a contrary view in holding that the building was a nonresidential building. The finding recorded by the courts below is clearly incorrect in view of the law laid down by the High Court in R. C. Mullic case. The finding deserves to be set aside. I accordingly, set aside the finding of the courts below to the extent that they have held the accommodation in dispute is non-residential building. 17. The second submission of Sri Naithani is that the revisional court committed an error in coming to the conclusion that alternative residential accommodation was constructed by the respondent-tenant after 1972 It did not consider the material evidences and arrived at the said finding without taking into consideration the relevant materials available on the record, which are referred to earlier in this judgment. The finding of the revisional court, to the extent it has held that the residential accommodation was constructed by the respondent-tenant after 1972, is clearly vitiated in law and is liable to be set aside, as it did not take into consideration, the following documents which were on record ;- (i) Objection filed by respondent no. 3 in reply to the application moved by Shri Y. P. Dhulia. (ii) Notice of Municipal Board, Rishikesh to respondent no. 3 regarding construction of house at 6-Malviya Road. (iii) Respondent's reply to the notice of Municipal Board. (iv) Statement of Chitar Sen. 18. I accordingly set aside the finding of the Revisional Court that respondent constructed the residential building at 6-Malviya Road after 1972. So far as the submissions made by Sri Jain are concerned, Sri Naithani has countered all the submissions on merits and has argued that these submissions should be dealt with by this court, failing which a lot of complication will arise and the revisional court will be compelled to decide the submissions made by Sri Jain, which have no merits and deserve to be rejected. 19. In this view of the matter, I have decided to consider the submissions of Sri Jain on merits. 20. The first submission of Sri Jain is that according to para 12 of the writ petition, a fresh tenancy has come into existence and the said premises can be declared to be vacant, if only after creation of fresh tenancy a new building has been constructed by the tenant-respondent. The statement contained in paragraph 12 of the writ petition are being reproduced below :- "12. That a fresh lease deed was executed in 1971 between the trust and respondent no. 3 in which it was admitted that the respondent no. 3 was in occupation of four residential rooms. A copy of the same is filed herewith as Annexure 13 to this writ petition. Another affidavit was filed in which it was stated that the accommodation in dispute was residential accommodation and that respondent no. 3 had constructed his own house. He has also constructed a market of 37 shops and is doing his business at Jukerjee Road. Assessment order of the Nagar Palika was also filed. A copy of the affidavit and assessment order is filed herewith as Annexure 14 and 15 to this writ petition. 3 had constructed his own house. He has also constructed a market of 37 shops and is doing his business at Jukerjee Road. Assessment order of the Nagar Palika was also filed. A copy of the affidavit and assessment order is filed herewith as Annexure 14 and 15 to this writ petition. From the aforesaid paragraph, it is clear that if the entire statement is taken to be correct, then only a part of the statement is that the lease was executed in the year 1971, but the sentence cannot be read out of context, the entire reading of the paragraph also stresses that lease was for residential purpose Besides it the entire reading of writ petition show that the respondent no. 3 became the tenant right in the year 1958 and the said tenancy continued and execution of a lease in 1971, did not create fresh tenancy. Paragraph 12, if taken to be correct, then it is clear that the respondent-tenant continued his tenancy in the premises in dispute and also constructed his own house and on the strength of the said paragraph itself the premises was liable to be declared as vacant. The contention of Sri Jain is patently misconceived and is accordingly rejected. 21. The second contention of Sri Jain is to be appreciated in the light of section 15 of the Act. For convenient reference section 15 of the Act is being reproduced below : "15. Obligation to intimate vacancy to District Magistrate : (1) Every landlord, shall on a building falling vacant by his ceasing to occupy it or by the tenant vacating it or by release from requisition or in any other manner whatsoever gives notice of the vacancy in writing to the District Magistrate not later than seven days after the occurrence of such vacancy, and such notice may at the option of the landlord be given before the occurrence of the vacancy. (2) Every tenant so vacating a building shall give notice thereof in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy. (3) The notice under sub-section (1) or sub-section (2) shall contain such particulars as may be prescribed. (2) Every tenant so vacating a building shall give notice thereof in writing to the District Magistrate and also to the landlord not less than fifteen days before the vacancy. (3) The notice under sub-section (1) or sub-section (2) shall contain such particulars as may be prescribed. (4) The District Magistrate, on being satisfied on an application made to him in that behalf that there was sufficient cause for the landlord or the tenant not to give notice under sub-section (1) or sub-section (2) within time, may condone such delay." 22. The condition stipulated cast obligation on the landlord, to intimate vacancy, to the District Magistrate only of the building falls vacant due to landlord ceasing to occupy the building or the landlord gets possession of the building from the requisition or in any other manner, there is no obligation of the landlord to give intimation of vacancy to the District Magistrate of deemed vacancy, as in the present case. That being so, the petitioner did not default by not giving intimation to the District Magistrate under section 15 of the Act for deemed vacancy nor there can be any such purpose of section 15. The landlord has an obligation to intimate vacancy only if he vacates the premises or gets possession of the premises. In this view of the matter, the contention of Sri Jain has no force and is liable to be rejected. The third submission of Sri Jain, that since 1971 the building was being used for non-residential purposes and the non-residential user having been regularised under section 14 of the Act, section 12 will have no effect on the premises, is also misconceived and is liable to be rejected. For this submission, section 14 of the Act is being reproduced here below : "14. Regularisation or occupation of existing tenants- Notwithstanding anything contained in this Act or any other law for the time-being in force, any licensee (within the meaning of section 2-A) or a tenant in occupation of a building wit the consent of the landlord immediately before the commencement of the Uttar Pradesh Urgan Buildings (.Regulation of Letting, Rent and Eviction (Amendment) Act, 1876, not being a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building)". 23. 23. Under section 14 of the Act, the tenant has been protected from being evicted by the landlord building being declared vacant on the ground that ha was occupying the premises in contravention of the provisions of the Act. So far as the regularisation of the tenancy is concerned, section 14 is aimed at regularising the tenancy of the premises, but has no relevance for determining the nature of the premises. Merely by circumstance that a residential building was permitted to be used for non-residential purpose, the nature of building will not be altered and residential building will maintain its character. Merely its user with the permission of landlord will not and cannot alter the character of the building from residential to non-residential. The submission is accordingly rejected. 24. The fourth submission has also no force on merits. Merely by lapse of time an illegality cannot be cured. There is no time limit for declaring the premises to be vacant under section 12 (3) of the Act. The decision relied 92-Rep.-1991 upon by Sri Jain is distinguishable. The landlord can approach for that purpose any time and can apply for declaration of vacancy, if the vacancy has occurred under section 12 of the Act, irrespective of the question of lapse of time. As such, the fourth submission of Sri Jain also deserves to be rejected on merit. In view of the above, I allow the writ petition, set aside the judgment of the Rent Control and Eviction Officer dated 2-5-86 and the judgment of the III Additional District Judge, Dehradun dated 11-7-88 and remand back the case to the court of III Additional District Judge, Dehradun for deciding afresh in the light of observation made by this judgment. 25. Parties will bear their own costs. Petition allowed.