JUDGMENT Sudhir Narain 1. THIS writ petition is directed against the order dated 1-2-90, passed by respondent no. 1, declaring the disputed premises as vacant. 2. THE petitioner is a tenant of two rooms, stare, varandah, court yard and latrine in premises no. 133, 175, Transport Nagar, Kanpnr of which respondent no, 2 is the Landlady. Respondent no 2 filed an application for release of the disputed accommodation for her personal need on the ground that she required it for the need of her family members. It was alleged that the tenant had purchased house no. 133/S-1, Rathupurwa Kanpur in the name of his wife from one Shiv Devi and he had shifted in the said house. Notice was issued to the petitioner on the application filed by respondent no. 2. He filed objection to the said application and it was denied that he had actually vacated the disputed accommodation. THE accommodation was used for residential purpose and for the purpose of storing the goods for using and utilising the shop and for loading and unloading of the goods of the customers required to be transported from one place to another. Respondent no. 2 filed affidavit of Smt. Shiv Devi, the owner of house no. 133/S-1 Kathupurwa, Kanpur, a copy of which has been annexed as C.A. 7 to the counter affidavit wherein she stated that she had sold house no. 133/S-l, Rathupnrwa, Kanpur to one Smt. Rama Devi on 4-8-1987 and delivered its possession. The petitioner is utilising the first floor for residential purpose and ground floor of the said house for commercial purpose. The Rent Control Inspector submitted a report that the disputed house was locked. The tenant has shifted to house no. 133/S-l, Rathnpurwa, Kanpur and he has removed his household goods from the disputed house. Respondent no. 1 by his order dated 1-2-90, taking into consideration the fact that the wife of the petitioner had already purchased house no. 133/S-7 Rathupurwa, Kanpur and has shifted in that house and residing there since 1987, declared the disputed accommodation, as vacant. 3. I have heard learned counsel for the parties. 4. Respondent no. 1 by his order dated 1-2-90, taking into consideration the fact that the wife of the petitioner had already purchased house no. 133/S-7 Rathupurwa, Kanpur and has shifted in that house and residing there since 1987, declared the disputed accommodation, as vacant. 3. I have heard learned counsel for the parties. 4. LEARNED counsel for the petitioner submitted that the accommodation in question was being used for non-residential-purpose and, therefore, it cannot be deemed as vacant under the provisions of section 12 (3) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as the Act). Sub-section (3) of section 12 of the Act provides that in case of residential building if the tenant or any member of his family purchases or otherwise acquires in a vacant state or gets vacated a residential building in the same city in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Admittedly, the house has been purchased in the name of wife of the petitioner in the year 1987 and the petitioner is residing in the said house with his family. The contention of learned counsel for the petitioner is that the disputed accommodation was taken for residential as well as for none- residential purposes and at present it is being used for non-residential purpose and, therefore, sub-section (3) of section 12 of the Act is not applicable. This provision is applicable only when a person is tenant of a residential building and acquires in a vacant state another residential building and the second contention of learned counsel for the petitioner is that even if the building was taken for residential purpose but is being used for non-residential purpose, sub-section (3) of section 12 of the Act is not applicable. The use of the building has to be seen at the time when the District Magistrate passed an order of declaration of vacancy. He contended that the petitioner is using this disputed premises for storing the goods of the customers and, such useris for commercial purpose and not residential purpose. 5. THE petitioner in his objection had not stated that the accommodation was let out for non residential purpose. He contended that the petitioner is using this disputed premises for storing the goods of the customers and, such useris for commercial purpose and not residential purpose. 5. THE petitioner in his objection had not stated that the accommodation was let out for non residential purpose. In para 2 of his objection he stated that for ' temporary purpose he started to reside in part of portion of the disputed premises. If an accommodation is let out for residential purpose and later on the tenant converts it for commercial purpose, he cannot claim that though it was originally taken for residential purpose or was being used for residential purpose but subsequently he is using the same for commercial purpose, sub-section (3) of section 12 of the Act will not be applicable If this interpretation is given, a tenant who was let out an accommodation for residential purpose and acquires another residential accommodation in the same city and shifts in such another accommodation and starts using the accommodation under his tenancy for non-residential purpose, he can defeat very legislative intent engrafted under sub-section (3) of section 12 of the Act shall be frustrated. It is the purpose for which an accommodation is let out has to be seen. 6. IT is also clear from the various provisions of the Act that the purpose of the letting has to be seen. Sub-section (3) of section 16 of the Act provides that the allotment order shall specify whether the building shall be used by the tenant for residential or non-residential purpose. Section 20 (2) (d) of the Act provides that in case the tenant has without the consent in writing of the landlord used the accommodation under his tenancy for a purpose other than the purpose for which ha was admitted to the tenancy of the building, that would be a ground for his eviction. Even under section 108 (o) of the Transfer of Property Act a tenant is not to use the property for a purpose other than that for which it was leased. In Triveni Pratap Singh v. Smt. Gauri Chakravarti, 1977 ARC 307, this Court while interpreting Section 12 (3) of the Act held that the nature of a residential building would not be changed to a non-residential building if it was let out for residential purpose but was being used for office purpose. In Triveni Pratap Singh v. Smt. Gauri Chakravarti, 1977 ARC 307, this Court while interpreting Section 12 (3) of the Act held that the nature of a residential building would not be changed to a non-residential building if it was let out for residential purpose but was being used for office purpose. In Behari Lal v. Smt. Chandrawati, AIR 1966 All 541 , it was held that a tenant is not entitled to convert the property leased for residential purpose to a commercial purpose in view of the provisions of section 108 (o) of the Transfer of Property Act. A tenant may, however, convert the user by consent of the landlord. This consent may be express or implied but after the enforcement of U. P. Act no. 13 of 1972 such change of user should be with the consent of the landlord in writing as contemplated under section 20 (2) (d) of the Act. Learned Counsel for the petitioner placed reliance upon the decision in Busching Schmitz v. Menghani, AIR 1977 SC 1569 , wherein their Lordships of the Supreme Court while interpreting the provisions of section 14-A of Delhi Rent Control Act 1958 observed that the purpose of lease is not decisive of character of an accommodation. The Government decides to allot residential accommodation to its employee but where such government servant or his family members own a residential building, he could not be allotted any such accommodation or if allotted, he will have to vacate the same The government employee, however, was entitled to recover possession of residential accommodation from his own tenant under section 14-A of the Delhi Rent Control Act. It was contended before their Lordships of the Supreme Court that the building was let out for non-residential purpose and, therefore, the possession could not be recovered. It was held that considering the provisions of section 14-A of the Act in the context of the Act, the legislative intent was clear that it is not the purpose of letting but the nature of the building has to be seen. A building which reasonably accommodates a residential user in a residential accommodation. In case a government servant owns a residential house and lets the same for non-residential purpose, he would be able , to contend that he does not own any residential accommodation and he cannot get possession of his own house. A building which reasonably accommodates a residential user in a residential accommodation. In case a government servant owns a residential house and lets the same for non-residential purpose, he would be able , to contend that he does not own any residential accommodation and he cannot get possession of his own house. In that context it was held that the purpose of the lease was not decisive of the character of the accommodation. It was observed as under : "Law being pragmatic responds to the purpose for which it is made, cognises the current capabilities of technology and life-style of the community and flexibly fulfils the normative role taking the conspectus of circumstances in the given cases and the nature of the problem to solve which the statute was made. Legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on the context and purpose of the statute and the project promoted." In the context of. the provisions of the statute, it was held that letting was not decisive of the character of an accommodation. 7. IN Kishinchand v. Kalawati, AIR 1973 Bom. 46 , the question came up for interpretation of the word 'residence' and 'residential use' under section 5 (1) of the Bombay Rents Hotel and Lodging House Rates Control Act, wherein it was held that the construction of a Marriage Hall or a charitable hospital would be treated as a residential use in the context of the Act. The provision of the statute has to be construed in the context of various provisions of the Act and keeping in view the legislative intent. 8. SECTION 12 (3) of U. P. Act 13 of 1972 clearly contemplates that where the tenant who had taken an accommodation for residential purpose has acquired another residential house in his own name or in the name of his family members, the accommodation which is under his tenancy shall be deemed as vacant The purpose of the legislative provision is clear that if a tenant who has taken a house for residential purpose, acquires another residential house, he should shift his residence there and the accommodation under his tenancy should be deemed as vacant. He cannot subsequently turn out to say that the accommodation which he was using for residential purpose is being used by him for non-residential purpose at the time of declaration of vacancy, under section 12 (3) of the Act and therefore it is not vacant. Learned counsel for the petitioner further placed reliance upon Brahma Shankar v. Prescribed Authority, 1978 U.P. RCC 583, wherein this Court while interpolating clause (ii) of third proviso to Section 21 (1) of the Act held that the present user and not the original purpose for which the premises were taken has to be considered. The Court was not considering the provisions of section 12 (3) of the Act and, therefore, this case has no application to the facts of the present case. 9. COMING to the facts of the instant case, the version of the petitioner in his objection was that a part of the accommodation was being used for residential purpose and a part of it for storing the goods of the customers who wanted to transport their goods from one place to another. The disputed accommodation consists of two rooms, store, varandah, court yard, latrine and kitchen. The petitioner did not classify as to which part of this accommodation was being used for storing the goods. There were hardly two rooms for utilization. Respondent no. 3 had let out two shops as well as the- disputed accommodation as narrated in paragraph 1 of the writ petition. In the counter affidavit it has been clarified that the petitioner is still tenant of two shops and disputed accommodation was taken for residential purpose and was being used for residential purpose. It is, thus, clear that the petitioner in the same premises has other two shops under his tenancy and they are being used for commercial purpose. The disputed accommodation was being used for residential purpose. 10. IT is also not disputed that the petitioner has shifted his family in the house which was purchased in the name of his wife in the year 1987 and residing there since then. Shiv Devi who had sold house no. The disputed accommodation was being used for residential purpose. 10. IT is also not disputed that the petitioner has shifted his family in the house which was purchased in the name of his wife in the year 1987 and residing there since then. Shiv Devi who had sold house no. 133/S-l, Rathupurwa, Kanpur, in the name of wife of the petitioner has filed an affidavit stating that the petitioner is residing in the house purchased from her in the year 1987 and residing on the first floor of the said house and ground floor of the same is being used by him for commercial purpose. The proceedings under section 21 had been initiated against the petitioner relating to shops which were under his tenancy and the petitioner had filed an affidavit in that proceeding, admitting that he was residing in two residential rooms, kitchen, store, varandah and court yard. Copy of the said affidavit has been annexed as annexure-4 to the counter affidavit. The petitioner has filed reioinder affidavit and he has not denied that such affidavit was filed by him. IT is established from the evidence on record that the petitioner had taken the disputed accommodation for residential purpose and was using the same for residential purpose. There was nothing to show that it was taken for nonresidential purpose or was being used for non-residential purpose. Learned counsel for the petitioner lastly, contended that the petitioner was not afforded opportunity to lead evidence in the case by the Prescribed Authority. The release application was filed by respondent no. 2 on 8-2-1988. The petitioner had filed objection on 13.12-1989. He did not deny that house no. 133/S-1, Rathupurwa, Kanpur had been purchased in the name of his wife and he is residing there. The Rent Control Inspector had submitted his report on 16-5-1988, before the petitioner had filed objection. The petitioner was never deprived of an opportunity to lead evidence. The impugned order indicates that the learned counsel for both the parties were heard. The submission of learned counsel for the petitioner that the petitioner was not heard or was not given an opportunity to lead evidence is not correct. 11. THERE is no merit in the writ petition and it is accordingly dismissed with costs. Petition dismissed.