Rakesh Tiwari, J.;- Heard Sri Vikram Bhalla, learned counsel for the petitioner, Sri P.K. Jain, learned counsel for respondent no.2, Sri Amitabh Agarwal, Advocate holding brief of Sri Saurabh Jain, learned counsel for respondent no.3 and perused the record. This writ petition is directed against order dated 4.3.2009 by which Rent Control and Eviction Officer/City Magistrate,Kanpur has declared vacancy under Section 12(3) of Uttar Pradesh Urban Buildings (Regulation Of Letting, Rent And Eviction) Act, 1972 (hereinafter referred to as the U.P. Act No. 13 of 1972) in respect of the accommodation in question. The facts leading to the present petition in brief are that petitioner is a tenant in residential accommodation in dispute consisting of two rooms, one kitchen, verandah, bath room, latrine and common urinal in premises no. 57/59, Sirki Mohal, Kanpur owned by respondent no.3. The landlord respondent no.3 is said to have filed Rent Case No. 1 of 2004 for the release of the aforesaid accommodation under Section 21(1)(A) of U.P. Act No. 13 of 1972 and the matter is stated to be still pending in the court of IV ACMM, Kanpur Nagar. The petitioner alleges that at the instance of respondent no.3, the respondent no.2 filed an application for allotment of the tenement in possession of the petitioner. In the aforesaid proceedings for allotment, statement of the landlord respondent no.3, is said to have been recorded on 20.11.2007 wherein he stated that the petitioner is occupying the accommodation in dispute unauthorizedly by force. According to the petitioner, the stand adopted by respondent no.3 is totally inconsistent to his statement which was recorded before the Rent Control Inspector on 20.11.2007. The statement shows that respondent no.3 happens to be in collusion with respondent no.2; that the son of the petitioner P.S. Khemka is living separately from the petitioner from the year 1995 and has shifted to rental accommodation No.118/520, Kaushalpuri Kanpur whereas the petitioner had shifted to premises no. 112/206-B, Saroop Nagar, Kanpur in the year 2000 and thereafter he shifted to premises no. 15/21, Civil Lines, Kanpur in the year 2003; that neither the petitioner Devi Prasad Khemka is dependent upon Sri P.S. Khemka nor the son is dependent upon his father as both are have separate and independent source of income and are paying their own taxes. Their living and mess is also separate. 15/21, Civil Lines, Kanpur in the year 2003; that neither the petitioner Devi Prasad Khemka is dependent upon Sri P.S. Khemka nor the son is dependent upon his father as both are have separate and independent source of income and are paying their own taxes. Their living and mess is also separate. It is stated that P.S. Khemka has purchased a flat at Apporva Apartment, 15/21, Civil Lines, Kanpur out of his own savings and income without any contribution from the petitioner; that the accommodation in possession of the landlord respondent no.3 is lying vacant as the landlord with his family and business has permanently shifted to Mumbai where he is residing 'Om Shanti'in House number BH-577/579J, Shanker Seth Road, Mumbai; that landlord respondent no.3 is having a business establishment at premises no. 132, Swadeshi Market, Ist floor Kalba Devi Road, Mumbai; that prospective, allottee, respondent no. 2 Sri Deepak Jain has not given any evidence in regard to the joint living of the petitioner Devi Prasad Khemka with Sri P.S. Khemka at premises no. 15/21, Civil Lines, Kanpur Approva Apartment and thus has failed to prove joint living and as such none of the ingredients for invoking the provisions of deemed vacancy was made out by the respondent no.2 and that the burden of proof is required to be discharged by proving and establishing joint living through substantial proof and evidence on the part of the petitioner Devi Prasad Khemka and son P.S. Khemka. The counsel argues that the petitioner is not an occupant of premises no. 15/21, Civil Lines, Kanpur Nagar Apporva Apartment and he has never received any summons/notice alleged to have been dispatched through registered post. The prospective allottee, respondent no.2 in collusion with his relative respondent no.3 Mr. Rikhab Chand Jain who is the landlord of the said premises manipulated endorsement on the summons 'Not claimed' by the Postman concerned. It is stated that petitioner neither was nor is an occupant of the Flat in Civil Lines as such the question of refusing of notice does not arise; that endorsement 'not claimed' made by the said postman does not imply 'refusal' of the notice and by no stretch of imagination, it can be inferred that petitioner is living with his son P.S. Khemka at the address of Civil Lines. It is averred that P.S. Khemka has purchased three bedroom flat Apporva Apartment in Civil Lines which he is occupying with his wife and three children aged 22 years, 20 years and 14 years respectively. There is paucity of space in the accommodation for his family consisting of elder son, Sri Hari Shankar Khemka, his wife Smt. Veena Khemka, his two daughters Smt. Shalu Kandoi, Km. Shweta Khemka and son Shailesh Khemka, hence there is no question of living with his father, the petitioner who is residing separately; that prospective allottee, respondent no.2, Deepak Jain is closely related with the landlord of the premises Sri Rikhab Chand Jain, respondent no.3 has not been denied by them and that respondent no.3 did not bother to put any appearance in the proceedings before the Rent Control and Eviction Officer till date for this reason whereas he is pursuing the proceedings for release of the accommodation by admitting petitioner to be bonafide tenant by filing the petition under Section 21(1)(A) of U.P. Act No. 13 of 1972, which is subjudice in the Court of IV ACMM.It is submitted that there is a clear inconsistency in the stand of the landlord which shows collusion and the Rent Control and Eviction Officer/City Magistrate, Kanpur has wrongly declared vacancy vide order dated 4.3.2009 and being aggrieved by the aforesaid order dated 4.3.2009 the present writ petition has been filed. The contention of learned counsel for the petitioner is that it is apparent from the evidence adduced by the landlord respondent no.3 before the Rent Control Inspector that Devi Prasad Khemka was living in one room of the second floor partitioned by verandah as an authorized occupant; that he is owner of the house no. 15/21, Civil Lines, Apporva Apartment, Kanpur Nagar purchased by his son Prem Shankar Khemka; that there is sufficient space therein for Devi Prasad Khemka as tenant and his family and apart from it they are running their business of Insurance and Income tax collection in House no. 57/59. Referring paragraph 5 of the writ petition, he has argued that there are seven persons in the family of the tenant; that his son Prem Shankar Khemka had separated sometimes in the year 1975 and that a plot had been purchased by his son out of his own funds as such there was no ground for declaring vacancy in the house in dispute. It is also argued that it is apparent from the Income tax return, Ration card and Voter ID list that the petitioner is living with his wife only in the tenanted accommodation. Per contra, learned counsel for respondent no.2 has argued that Income tax return which has been filed in support of his contention by the petitioner that his son is living separately is an after thought and is subsequent to the date of purchase of the building by his son. The argument in respect of the Ration card is also the same and on the basis of this it is argued that these documents cannot be relied upon to arrive at the conclusion that Prem Shankar Khemka was living separately or was carrying on his business independent to his son. In this regard, learned counsel for the petitioner has placed reliance upon relevant portion of the judgment of the Prescribed Authority dated 4.3.2009 which reads thus:- @ Hindi @ He also submits that from the orders whereby the tenant was directed to deposit the rent due under Section 30 of the Act as well as from the address given by the son of the landlord in the sale-deed it is apparent that P.S. Khemka was residing with his father the petitioner in the accommodation in dispute for which release has been filed. From the above it is apparent that Prem Shankar Khemka has purchased his house while he was living with his father in the house in dispute as he has given the same address in the documents where his father is living in the accommodation in dispute. The documents mentioned in paragraph 13 of the affidavit of Devi Prasad Khemka are the photostat copies and other documents relied upon by the petitioner cannot be relied upon by this court as they are subsequent to the date in the sale-deed. The Court below has recorded a concurrent finding of fact against the petitioner in this regard. Hence, in view of explanation-I to proviso-4 of Section 21 (1) of U.P. Act No. 13 of 1972 if a family member of the tenant has acquired a house or a residential accommodation in a vacant state, the tenant has no right to contest the release application. Hence, in view of explanation-I to proviso-4 of Section 21 (1) of U.P. Act No. 13 of 1972 if a family member of the tenant has acquired a house or a residential accommodation in a vacant state, the tenant has no right to contest the release application. In the instant case, the son of the petitioner admittedly has purchased a flat while living with his father in a tenanted accommodation, hence he cannot contest the release application on ground of comparative hardship or that need of the landlord is not bonafide. In view of the 4th proviso to Section 21 (1)(a) of U.P. Act No. 13 of 1972 he has no right to continue in the accommodation in dispute as his family member having acquired a residential accommodation in a vacant state. For the reasons stated above, the writ petition is dismissed. No order as to costs.