JUDGMENT Hon’ble Shashi Kant Gupta, J.—This writ petition has been filed for quashing the order dated 6.10.1998 passed by the respondent No. 1 Rent Control and Eviction Officer (Ist) Allahabad in case No. 14 of 1996, Bhupendra Kumar Singh v. C.M. Ghosh Trust in regard to Property No. 26/28 Mahatma Gandhi Marg, Allahabad whereby the said house has been declared vacant under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short ‘the Act’). 2. Brief facts of the case as enumerated in the writ petition are as follows : 3. Father of the petitioner late Babu Lal Valmiki was allotted premises No. 26/28, Mahatma Gandhi Marg, Civil Lines, Allahabad, by means of an allotment order dated 17.12.76. The petitioner was residing with his father Babu Lal Balmiki in that building at the time of his death, and after his death the landlord issued rent receipts in favour of the petitioner. Father of petitioner Babu Lal Balmiki died on 28.11.1995. The entire family members of the petitioner also gave in writing to the landlord that it is only Promod Chandra, the petitioner, who is staying in the premises in question. 4. During the life time of the father of the petitioner, one Bhupendra Kumar Singh respondent No. 3, (prospective allottee), had moved an application dated 12.10.1993, mentioning therein in column No. 15 that father of the petitioner was staying in 379, Sadar Bazar, Allahabad, as such, there is a ‘deemed vacancy’. 5. Rent Control and Eviction Officer, after hearing the concerned parties, by an order on 8.7.1994 held that there was no vacancy in regard to the premises in question and consequently the application for allotment was rejected and the record of the case was consigned to the Record Room. 6. Thereafter, Bhupendra Kumar Singh, respondent No. 3 again moved an application dated 13.12.1995 before the respondent No. 1 Rent Control & Eviction Officer (Ist), Allahabad. Once again, the same ground was taken that the father of the petitioner is residing at 379, Sadar Bazar, Allahabad and has got no concern with the premises in question. 7. 6. Thereafter, Bhupendra Kumar Singh, respondent No. 3 again moved an application dated 13.12.1995 before the respondent No. 1 Rent Control & Eviction Officer (Ist), Allahabad. Once again, the same ground was taken that the father of the petitioner is residing at 379, Sadar Bazar, Allahabad and has got no concern with the premises in question. 7. Rent Control Inspector, without informing or intimating the petitioner or issuing notice to the father of the petitioner, submitted ex parte inspection report wherein it was mentioned that inspection was done in the presence of Sri Manish Khanna, Alok Das and A. N. Gupta (Accountant of the Landlord) and found the disputed premises to be locked and was informed that Babu Lal Balmiki alongwith his wife was residing in House No. 379, Sadar Bazar, Allahabad which was purchased by him in the name of his wife Smt. Saraswati. 8. Record of the case shows that counter affidavit and rejoinder affidavits were exchanged between the parties in the Court below. Documentary evidences were filed by the petitioner in support of his contention that he is residing in the disputed premises. 9. Rent Control and Eviction Officer (Ist) Allahabad, Respondent No. 1 by order dated 6.10.1998 has declared the vacancy of the disputed premises. Hence, the present writ petition. 10. Heard Sri P.K. Sinha, learned counsel for the petitioner, Sri Arvind Srivastava, learned counsel for the respondent No. 3 and Sri Krishna Mohan, learned counsel for the respondent No. 2 and perused the record as well as the impugned order. 11. The impugned order has been passed declaring the vacancy of the disputed premises merely on the ground that Photostat copy of the voter list pertaining to house No. 379, Sadar Bazar, Allahabad contains the names of the petitioner’s father and his family members including the petitioner suggesting that they are staying in the house No. 379, Sadar Bazar, Allahabad and also placed reliance upon the written declaration dated 6.4.97 (in short “the declaration”) given by the mother and brothers of the petitioner stating that the petitioner alone is residing in the disputed premises as tenant and they have no concern with the disputed premises. 12. 12. Learned counsel for the petitioner has made the following submissions : (i) Neither the father of the petitioner nor his mother had ever purchased the house No. 379 Sadar Bazar, Allahabad and the petitioner has got no concern with the said property. (ii) Rent Control Inspector has totally ignored the voluminous documentary evidences which were filed before it by the petitioner (same have been filed before the Court as Annexure 14 to the present writ petition), which clearly establish that the petitioner had been residing alongwith his father during his life in the premises. (iii) The respondent No. 1 did not have the jurisdiction and power to review its earlier order dated 8.9.94 wherein the allotment application of the respondent No. 3 stood rejected, while holding that no vacancy of the disputed premises can be declared since there is nothing on the record to establish that the house No. 379, Sadar Bazar, Allahabad was either purchased by Babu Lal Balmiki, father of the petitioner or his wife Saraswati. (iv) Babu Lal Balmiki, father of the petitioner was allotted the disputed premises in the year 1976 and since then he had been staying in the premises in question and after the death of Sri Babu Lal Balmiki, the tenancy of the disputed premises was inherited by the petitioner as such ‘vacancy’ cannot be declared of the disputed premises. (v) The Court below has not recorded any finding as to whether the brothers and mother of the petitioner were normally residing alongwith their father in the disputed premises and whether they were fully dependent upon the father of the petitioner. 13. On the other hand, learned counsel for the respondent No. 3 has supported the impugned order and has contended that the father of the petitioner had purchased the house No. 379 Sadar Bazar, Allahabad in the name of his wife Smt. Saraswati as such the provision under Section 12 (3) of the Act are fully applicable and no fault can be found with the impugned order. 14. Respondent No. 2 had also supported the impugned order. 15. Following facts are admitted by both the parties : (i) Babu Lal Balmiki, father of petitioner was allotted the disputed premises in the year 1976. 14. Respondent No. 2 had also supported the impugned order. 15. Following facts are admitted by both the parties : (i) Babu Lal Balmiki, father of petitioner was allotted the disputed premises in the year 1976. (ii) On 12.10.1993 allotment application was filed by the respondent No. 3 for allotting the disputed premises on the ground that Babu Lal Balmiki has purchased the premises No. 379 Sadar Bazar, Allahabad in the name of his wife Smt. Saraswati, as such the disputed premises is liable to be declared vacant under Section 12 (3) of the Act. (iii) On 8.7.1994, the said allotment application dated 12.10.1993 was rejected by the Rent Control and Eviction Officer holding that there is no vacancy in regard to the premises in question and there is nothing to establish that the house No. 379 Sadar Bazar, Allahabad has been purchased either by Sri Babu Lal Balmiki or his wife Smt. Saraswati. (iv) Second allotment application was filed on the very same ground by the respondent No. 3 despite the rejection of his earlier allotment letter dated 12.10.1993. (v) There is nothing on record to show that the house No. 379 Sadar Bazar, Allahabad has been purchased either by Sri Babu Lal Balmiki or any of his family members. Respondent No. 3 has not filed any such sale deed to establish his claim. (vi) The voluminous document which has already been annexed as Annexure 14 alongwith the writ petition clearly indicate that the petitioner is continuously residing in the disputed premises. (vii) It is also not disputed that the inspection of the disputed premises was conducted by the Rent Control Inspector behind the back of the petitioner without the issuance of any notice or intimation to the petitioner and the house in question was allegedly found locked. 16. The apex Court in R.P. Shukla v. Sudhrist Narain, AIR 2008 SC 3130 , in this regard has held as follows : “14. Thirdly, the finding of the High Court that simply because the gate was locked, it was no ground to conclude the disputed premises was vacant cannot be ignored. The learned senior counsel for the appellant contended that this case, a deemed vacancy had occurred and ingredients of Section 12 of the Act while deals with deemed vacancy of buildings were satisfied. The learned senior counsel for the appellant contended that this case, a deemed vacancy had occurred and ingredients of Section 12 of the Act while deals with deemed vacancy of buildings were satisfied. As rightly pointed out by the High Court in the impugned judgment, the fact that the gate was locked cannot be a conclusive proof to hold that the respondent had removed his effects therefrom or that he had allowed it to be occupied by any person who was not a member of his family or even that he and members of his family had taken up residence elsewhere. In our view, the question of deemed vacancy cannot arise at all in view of the facts, which would be evidenced from the order of the RC and EO and the report of the RCI. From the said order of the RC and EO, it does not appear that the respondent had substantially removed his effects from the disputed premises. As stated hereinabove, the fact of the gate being locked and the absence of the respondent at the time of the inspection would not mean that substantial removal of effects of the respondent had been made. In view of our discussions made hereinabove, we are not of the view that any deemed vacancy had occurred and on this ground, we are no inclined to interfere with the judgment of the High Court.” 17. Thus, now, it is a settled law that simply because at the time of inspection, the house was found locked, is no ground to conclude that the disputed premises is vacant under the Act. 18. No plausible explanation has been given as to why the provisions of Rules 8 and 9 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (in short “the Rules”) was not complied with. It is also noteworthy that on the earlier occasion also i.e. in the year 1993, an attempt was made by the respondent No. 3 to get the house declared vacant on the ground that the house No. 379 Sadar Bazar, Allahabad was purchased by Babu Lal Balmiki in the name of his wife but failed to controvert the affidavit of Babu Lal Balmiki that no house No. 379 Sadar Bazar, Allahabad was purchased by him. Consequently, the allotment application was dismissed by the Rent Control Officer and the disputed house was not declared vacant. Consequently, the allotment application was dismissed by the Rent Control Officer and the disputed house was not declared vacant. 19. Now it is very strange that the respondent No. 3 again on the very same ground filed another application for allotment even though the earlier allotment application was dismissed on 8.7.1994. 20. The main grounds for declaration of the vacancy is the voter list of the house No. 379 Sadar Bazar, Allahabad as well as the declaration dated 6.4.1997 given by the legal heirs of Babu Lal Balmiki. 21. In support of his contention, Photostat copy of the voter list of the year 1991 has been filed by the respondent No. 3 pertaining to the House No. 379 Sadar Bazar, Allahabad, which contains the names of Babu Lal Balmiki alongwith his other family members. 22. On the other hand, the petitioner has also filed the original copy of the voter list of the disputed house containing the name of Babu Lal Balmiki and the petitioner. This apart, the voluminous documents including the rent receipts prior to and subsequent to the death of Babu Lal Balmiki issued by the landlord has been filed by the petitioner. 23. At this juncture it will be useful to refer to paragraph 22 of the writ petition which contains the details of the documents filed by the petitioner to establish that he is continuously residing in the premises in question. For ready reference paragraph 22 of the writ petition is reproduced below : “22. That voluminous documentary evidence was filed by the petitioner in support of his contention that he has been permanently residing at premises No. 26/28, Mahatma Gandhi Marg, Allahabad and in order to support his contention, the petitioner had filed apart from the documents, which have already been appended as Annexures to the present writ petition in the shape of the letter of allotment dated 17.12.1976, in the name of Babu Lal Balmiki; copy of the Rent Receipts dated 15.4.1997 issued by the Landlord in favour of the petitioner; earlier proceedings initiated by Bhupendra Kumar Singh by means of application dated 20.12.1993 and the order dated 8.7.1997, passed by the Rent Control & Eviction Officer and apart from these documents, following documents were also filed by the petitioner before the Rent Control & Eviction Officer and all were public Documents. Letter dated 22.8.1992, issued by the District Election Officer, Allahabad; letter dated 14.2.1992, issued by the Secretary of Allahabad Development Authority Corporator and in fact, by virtue of being resident of this very premises, the petitioner had contested the election of Corporator and was elected and represented the Civil Lines Ward; Letter issued by the District Magistrate, Allahabad; in regard to Press Release on 15.12.1994, showing that the address of the petitioner in regard to this very premises; letter sent by the Chief Development Officer dated 30.1.1990; Caste Certificate dated 21.11.1992 showing this very address; Driving Licence dated 20.9.1992 showing this very address; Income Certificate showing this very address and then, copy of the post-Card, showing this very address; letter sent from the office of ‘Kamal Jyoti’ which is a newspaper of Bhartiya Janta Party, showing this very address dated 15.9.1983; letter sent from the office of Bhartiya Janta Party; letters sent by Communication Department; L.I.C. Receipt; Gas-Connection Receipt and Extract of the Voter List, showing this very address, photo copy of these documents are being collectively filed herewith as Annexure ‘14’ to this writ petition.” 24. The voluminous document as indicated in para 22 of the writ petition filed before the Court below has been completely ignored by the respondent No. 2 while passing the impugned order. The Rent Control & Eviction Officer has also referred to the document (declaration) dated 6.4.97, filed by the petitioner as Annexure 8 to the writ petition which contains the joint written declaration of the legal heirs of Babu Lal Balmiki stating that the petitioner is residing in the disputed premises and is paying rent continuously and they have no concern or any connection with the premises in question. For ready reference the declaration dated 6.4.97 is reproduced below : ÞeSa ljLorh nsoh iRuh Lo0 Jh ckcw yky okYehdh fuoklh 379 lnj cktkj dh jgus okyh gw¡ esjs 6 iq= vkSj 2 iqf=;ka gSa bu lHkh dk fookg gks pqdk gSA ;s lHkh vius ifjokj ds lkFk vius futh edkuksa esa jgrs gSa k lcls cMk iq= d`.k pUnzk 80&,] vkksd uxj esa vius futh edku esa jgrs gS A mlls NksVk nwljs u0 dk iq= fouksn pUnzk 38&,] E;ksj jksM] vEcsndj dkyksuh esa jgrs gSa rhljs u0 dk iq= larksk pUnzk fnYyh fLFkr xksy ekdsZV dkyksuh esa vius futh QySV esa jgrs gSa pkSFks u0 dk iq= izeksn pUnz lu~ 1976 ls vius firk th Jh Lo0 ckcw yky okYehdh ds lkFk 26@28 egkRek xkWa/kh ekxZ fLFkr lh0 ,e0 ?kksk fcfYMax esa jgrs gSa ftuds firk dh e`R;q 28 uoacj] 1995 esa gks x;h gS A ikWapos ua0 dk iq= lkse pUnz 38&ch] E;ksj jksM esa vius futh edku esa jgrs gSa A NBosa u0 dk iq= vfuy pUnzk 379 lnj cktkj esa Lo;a esjs lkFk jgrk gSA eSa vkSj esjs lHkh iq=ksa dh viuh ethZ ¿LosPNkÀ gS fd izeksn pUnzk tks fd geskk ls ml edku esa jgrs vk;sa gSA mlh esa jgsa A ge lHAh dks dksbZ vkifRr ugha gSA vr% lh ,e0 ,l0 ?kksk ls ge lHkh fuosnu djrs gSa fd 26@28 egkRek xkWa/kh ekxZ dk QySV Áeksn pUnzk ds gd esa dj fn;k tk; o jlhn dkVus dh Ñik djsa A leLr iq= x.k ÁkfFZkuh Ñ.k pUnzk 80&,] v’kksd uxj] byk0 fouksn pUnzk 38&,] E;ksj jksM] byk0 ljLorh nsoh iRuh Lo0 Jh ckcw yky okYehdh larksk pUnzk] xksy ekdsZV dkyksuh ubZ fnYyhA izeksn pUnz 26@28 egkRek xkWa/kh ekxZ lh0 ,e0 ?kksk”fcfYMax byk0 lkse pUnz 38&ch E;ksj jksM byk0 vfuy pUnzk 379 lnj cktkjÞ 25. A mere perusal of the said document dated 6.4.97 shows that except the petitioner, none of the sons of Babu Lal Balmiki are residing in the disputed premises and one of his son Anil Chandra is staying with his mother in the house No. 379 Sadar Bazar, Allahabad. Therefore, now, the question is whether on the basis of the said document (declaration) dated 6.4.97 any vacancy can be declared of the disputed premises. 26. At this juncture, it would be useful to refer Section 12 of the Act and the same is reproduced hereinbelow : “12. Therefore, now, the question is whether on the basis of the said document (declaration) dated 6.4.97 any vacancy can be declared of the disputed premises. 26. At this juncture, it would be useful to refer Section 12 of the Act and the same is reproduced hereinbelow : “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 case 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. [Explanation.—For the purpose of this sub-section— (a) A person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee; (b) the expression “any member of family”, in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant]. [(3-A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him or any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town are to which he has been so transferred, whichever is later. (3-B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, municipality, notified area or town area in which the said building is situate and such engagement ceases for any reason whatsoever and he is landlord or any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the first mentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceeding under Section 21 or otherwise. (4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1) or sub-section (2), or [sub-section (3), sub-section (3-A) or sub-section (3-B)], shall, for the purposes of this Chapter, be deemed to be vacant.” 27. The document (declaration) dated 6.4.97 does not disclose as to when the brothers of the petitioner had acquired their own premises. 28. The respondent No. 3 has alleged that the premises No. 379 Sadar Bazar, Allahabad has been purchased by Babu Lal Balmiki in the name of his wife. However, there is nothing on record to show that the house No. 379 Sadar Bazar, Allahabad was ever purchased by Babu Lal Balmiki in the name of his wife. No sale deed or any other document to this effect is on record. However, it has been admitted in the said document dated 6.4.97 that Anil Chandra (brother of the petitioner) alongwith the mother of the petitioner is residing in premises No. 379 Sadar Bazar, Allahabad. 29. No sale deed or any other document to this effect is on record. However, it has been admitted in the said document dated 6.4.97 that Anil Chandra (brother of the petitioner) alongwith the mother of the petitioner is residing in premises No. 379 Sadar Bazar, Allahabad. 29. Now the question for consideration before this Court is whether the vacancy of the disputed premises can be declared on the ground that Anil Chandra, brother of the petitioner is residing in the house No. 379 Sadar Bazar, Allahabad alongwith his mother. It has neither been alleged by the respondent No. 3 that Anil Chandra was ever normally residing with or was dependent upon Babu Lal Balmiki, father of the petitioner nor there is anything to this effect on record nor it has been discussed by the Court below. Provisions of Section 12 (3) can be applied only when the member of the family who has acquired the vacant premises was normally residing or was wholly dependent upon such tenant. 30. As we have noted hereinearlier that the petitioner was staying in the disputed premises alongwith his father and even subsequent to the death of his father he is continuously residing in the disputed premises, and paying rent to the landlord. If the other family members of the tenant who have neither been normally residing with nor dependent on such tenant and in case, if they acquire another vacant premises during the life time of the tenant then the provisions of this Section 12 (3) will not be applicable. 31. The explanation appended to Section 12 contemplates the expression any member of family’ in relation to tenant shall not include a person who has neither been residing with nor is fully dependent on such tenant. Therefore before applying the provisions of Section 12 (3), explanation appended to Section 12 (3) of the Act should be taken into consideration. 32. There is also nothing on record to show as to when the mother of the petitioner started staying with his another son Anil Chandra. 33. There is also no finding to this effect that the mother of the petitioner was either normally residing with Babu Lal Balmiki in the disputed house or was dependent upon him. 34. 32. There is also nothing on record to show as to when the mother of the petitioner started staying with his another son Anil Chandra. 33. There is also no finding to this effect that the mother of the petitioner was either normally residing with Babu Lal Balmiki in the disputed house or was dependent upon him. 34. Learned counsel for the petitioner has placed reliance upon the decision of this Court in the case of Saraswati Chadda (Smt.) and others v. First Additional District Judge, Allahabad, 2001(1) ARC 610, wherein in paragraph 18 and 19 it has been held as follows : “18. Thus the expression used indicates that the relevant date is the date when the acquisition is made. Therefore, the relevance of residence has nexus with the date of the acquisition. It is immaterial if he shifts to new accommodation after the acquisition is made then it would not disqualify him as an ordinary resident of the tenanted house. The relevant point of time is anti-dated to the acquisition. Therefore, it is to be seen, that whether on the date of acquisition of the property, the sons of the tenant had been residing ordinarily with the tenant. 19. This question since appears not to have been determined by the Rent Controller though there were certain materials. In my view, this is a case fit to be sent back for fresh decision by the Rent Controller in accordance with law on the face of the materials placed before it or such other materials that might be placed before the authority by the respective parties who would be free to produce other materials in order to support their respective contentions.” 35. In the present case, the Court below has not made any effort to find out as to whether the wife of Babu Lal Balmiki and his son Anil Chandra were ordinarily residing as tenant when the house No. 379 Sadar Bazar, Allahabad was acquired by them. Relevance of residence has nexus with the date of acquisition, though it has been admitted in the document dated 6.4.97 that Sri Anil Chandra alongwith his mother is residing in house No. 379 Sadar Bazar, Allahabad. To attract Section 12 (3) of the Act it is not at all necessary that the property in question should, in fact, be purchased by registered sale deed. To attract Section 12 (3) of the Act it is not at all necessary that the property in question should, in fact, be purchased by registered sale deed. The document (declaration) dated 6.4.97 clearly establishes that the property No. 379 Sadar Bazar, Allahabad although was not purchased by Sri Anil Chandra and the wife of Babu Lal Balmiki, but definitely was acquired, as such the question is to be determined whether the mother of the petitioner Smt. Saraswati Devi wife of Babu Lal Balmiki and his brother Anil Chandra were ordinarily residing in the disputed house or was dependent on Babu Lal Balmiki at the time when the property No. 379 Sadar Bazar, Allahabad was acquired. 36. Respondent No. 1 has neither discussed the aforementioned issue nor has recorded any finding. In my view this is a case fit to be sent back for fresh decision by the respondent No. 1 in accordance with law in the light of the materials placed before it or such other materials that might be placed before the authorities by the respective parties who would be free to produce other materials in order to support their respective contentions. 37. In such circumstances, the impugned order dated 6.10.98 passed by the respondent No. 1 is hereby set aside and the matter is sent back to the respondent No. 1 for rehearing and deciding the matter afresh after recording its finding on the question whether the mother of the petitioner Smt. Saraswati Devi wife of Babu Lal Balmiki and his brother Anil Chandra were ordinarily residing in the disputed house or was dependent on Babu Lal Balmiki at the time when the property No. 379, Sadar Bazar, Allahabad was acquired by them. This apart, it is also open to the parties to raise any plea, which is permissible under law. Whatever materials are to be produced by the parties, the same should be produced before the respondent No. 1 at the earliest. In default, it would be open to the Rent Controller to proceed without such materials and decide the case on materials that already exist. It is expected that the respondent No. 1 shall decide the matter afresh as expeditiously as possible. 38. In the result, the writ petition is hereby allowed subject to the aforesaid observations, however, there will be no order as to costs. ————