1. By means of this writ petition under Article 226 of the Constitution, of India, the petitioner Smt. Lilawanti has challenged the order dated 26-2-2001. Annexure 1 to the petition, whereby a deemed vacancy has been declared by the Rent Control and Eviction Officer/VIth Additional City Magistrate, Kanpur Nagar in respect of house No. III-A/214 Ashok Nagar, P.S Nazirabad, Kanpur Nagar.

2. Counter and rejoinder affidavite have been exchanged. Heard Sri W.H Khan, learned counsel for the petitioner and Sri Ravi Kant, learned Senior Advocate appearing on behalf of the respondent No. 2. It is an indubitable fact that late Radha Kishan Chhabara was the original tenant in the premises aforesaid. He died on 16-10-1990 leaving behine him the present petitioner (Widow) and three sons, namely, Ashok Kumar Chhabara, Prem Chhabara and Rakesh Chandra Chhabara. Whereabouts of Rakesh Chandra Chhabara are not known as he is missing for a considerable long time. The respondent No. 3- Dharmendra Kumar moved an application for allotment of the tenanted premises on the ground that a deemed vacancy has come into being in view of the provisions of Sub-sec. (3) of S. 12 of the U.P Urban Buildings (Regulation of Letting, Rent, and Eviction) act, 1972 (Act No. XIII of 1972) (hereinafter referred to as ‘the Act’) as Ashok Chhabara son of the original tenant has acquired separate residential accommodation within the Municipal limits of Kanpur Nagar. After obtaining the report of Rent Control Inspector and completing necessary formalities, the Rent Control and Eviction Officer, by the impugned order dated 26-2-2001 declared the tenanted accommodation as vacant. A finding of fact was recorded by the Rent Control and Eviction Officer that Ashok Chhabara had acquired house No. D-41 Govind Nagar in the year 1984; another house No. 118/316 Kaushalpuri in the year 1985 and the third house No. 120/192-A, Lajpat Nagar in the year 1989, i.e during the lifetime of his father late Radha Kishan Chhabara and consequently, a deemed vacancy under the provisions of S. 12(3) of the Act has occurred.

3. The petitioner Smt. Lilawanti has challenged the order of vacancy on variety of grounds. It is asserted that Ashok Kumar Chhabara has separated during the lifetime of his father and was not normally residing with him when he acquired a house on rent in Govind Nagar, then in Kaushalpuri and then in Lajpatnagar; that he did not inherit the tenancy on the death of his father and consequently, even if he took any house on rent at different places, no legal vacancy arose in respect of the accommodation of which late Radha Kishore Chhabra was the tenant and after his death, the (widow) and Prem Chhabara (son) are the joint tenants.

4. Shri W.H Khan, learned counsel for the petitioner urged that though Ashok Chhabra is the son of the petitioner and was initially living in the tenanted house, he ceased to occupy the same during the lifetime of his father as he separated from the family and merely becuase a married son has gone to a rental house to settle himself in an independent capacity, a deemed vacancy under sub-sec.(3) of S. 2 would not arise. The thrust of the submission of Sri W.H Khan was that since Ashok Chhabara has ceased to be the member of the family of the tenant and has not been normally residing with him nor was wholly dependent on the tenant, the provisions of sub-section (3) of Section 12 of the Act shall not be attracted. In support of his contention, Sri Khan placed reliance on explanation (b) to the proviso to sub-section (3) of Section 12. He also placed reliance on certain observations of the Apex Court in Harish Tandon v. Addl. District Magistrate, Allahabad, (1995) 1 SCC 537 : (AIR 1995 SC 676). Sri Ravi Kant has repelled the above submission and urged that there can be no escape from the fact that Ashok Chhabara son of the tenant who was living in the tenanted house has acquired a separate house and on account of acquisition of another house for residential purpose by a family member of tenant, a deemed vacancy has undoubtedly arisen.

5. The crucial point for determination in the present writ petition is whether on account of acquisition of a house by Ashok Chhabara who is the son of the original tenant in a vacant state for residential purpose within the municipal limits of Kanpur Nagar would give rise to a deemed vacancy as contemplated under Section 12(3) of the Act, which reads as follows:

“12. Deemed vacancy of building in certain cases — (i) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if—

(a) to (c)………………

(2)………………

(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 of 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 purposes 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 of 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.

……………”

6. The above provisions came to be interepreted by this Court as well as Apex Court in a number of decisions. A Full Bench of this Court in Smt. Rama Devi Shakya v. Addl. District Judge, 1981 All Rent Cas 305, interpreting the provisions of Section 12(3); and explanation (b) observed as follows:

“(a) If a person is normally residing with the tenant, he shall be a member of the family; if he is wholly dependent on such tenant, then also he will be a member of the family, even though he may not be normally residing with the tenant.

If a person who has been normally residing with the tenant builds or otherwise acquires, in a vacant state, or gets vacated a residential building in the same city etc. the building under tenancy shall be deemed to have become vacant. Similarly, if a person who is wholly dependent on the tenant does the offending, act, namely, acquires etc., another residential building, the same result will follow. It is not necessary that a person should both be normally residing with the tenant as well as be wholly dependent on such tenant before his acquiring another building will cause vacancy.

Explanation (b) to Section 12(3) of the Act does not require that a member of the family who acquires another building should both have been normally residing with the tenant and should also be wholly dependent on him.”

7. Later on, in another case Syed Mazahar Mustafa Jafri v. Rent Control and Eviction Officer, Allahabad, (1992) 1 All WC 190, it was held that deemed vacancy of a tenanted accommodation occurs automatically on account of certain acts done by the tenant or a member of the family. In that case, in the lifetime of the original tenant, one of his sons and acquired a residential house in the same city in a vacant state and had got possession in the same. The Rent Control Inspector inspected the house in dispute and submitted his report to the said effect. Thereafter notices were issued to the parties. The petitioners-sitting tenants filed objection challenging the report. The Rent Control and Eviction Officer held that the disputed house would be deemed to be vacant. The order of vacancy was challenged in the writ petition by the sitting tenants. It was observed that a plain reading of sub-section (3) of Section 12 of the Act shows that if the tenant or any member of his family builds or otherwise acquires in a vacant state a residential building in the same City or municipality in which the building under tenancy is situate then the tenant shall be deemed to have ceased to occupy the building under his tenancy. Explanation (b), however, provides that the expression ‘any member of the 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. Therefore, if any member of the family of a tenant acquires a residential building in a vacant state in the same city or municipality, the building under the tenancy shall not be deemed to be vacant provided the member of the family of the tenant satisfies either of two conditions, namely (1) he has not been normally residing with the tenant, and (2) he is not wholly dependent on the tenant. If the ‘member of the family’ of the tenant satisfies only one of the conditions, namely, that he has not been normally residing with the tenant or that he is not wholly dependent on the tenant, in that event the provisions of sub-section (3) will apply and the tenant shall be deemed to have ceased to occupy the building under his tenancy. It is, therefore, clear that if a member of the family of a tenant builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city or muncipality in which the building under tenancy is situated, the tenant shall be deemed to have ceased to occupy the building under his tenancy unless he establishes that a member of his family, who has built or acquired in a vacant state or has got vacated, a residential building, was such a person who was neither normally residing with him nor was wholly dependent on him. The same point came to be considered by this Court in Saraswati Chaddha (Smt) v. Ist Addl. District Judge, Allahabad (2000) 1 All Rent Cas 610. In that case, two sons of the tenant acquired property within the same city in a vacant state. The sons were found to be not wholly dependent on the tenant. The question that arose for determination before the Court was whether sons had been normally residing with the tenant or not. It was held that the established position of law now is that either one of the ingredients is to be satisfied in order to attract the application under Section 12(3) of the Act. It was further observed that relevant date on which the tenant shall be deemed to have ceased to occupy the accommodation would be the date on which the acquisition was made by the son.

8. sub-section (3) of Section 12 of the Act emphasizes acquisition of another building in a vacant state. Under it, the question of possession is the all important feature. If a building is acquired in a vacant state, it is obviously available for being occupied. The purport of Section 12(3) of the Act is to frown upon the tenant having two buildings for his and his family members' occupation at the same time. Explanation (b) to sub-section (3) of Section 12 of the Act, as said above, clearly specifies the circumstances in which a deemed vacancy would arise. If a person (a) wholly dependent on tenant and/or (b) normally residing with him acquires another accommodation, the tenant shall be deemed to have ceased to occupy the building under tenancy i.e a deemed vacancy would come into existence.

9. Shri W.H Khan, learned counsel for the petitioner urged that the impact of the decision of the Full Bench in Smt. Rama Devi Shakya's case (1981 All Rent Cas 305) (supra) was considered by the Apex Court in Mohd. Azeem v. Addl. District Judge (1985) 2 SCC 550 : (AIR 1985 SC 1118) and overruling, it, it was observed that if the Full Bench decision was to be followed then in an expanding family, even if one child moved out it would result in the eviction of all the other members of the family. Reliance was also placed on paragraph 19 of the oft quoted decision of the Apex Court in Harish Tandon v. Addl. District Judge, Allahabad (1995) 1 SCC 537 : (AIR 1995 SC 676) to point out the difficulties, which may arise on account of one of the family members of the tenant acquiring a separate accommodation. Para 19 of the Report runs as follows:

“19. So far as sub-section (3) of Section 12 is concerned, it says that in case of 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, the tenant ‘shall be deemed to have ceased to occupy the building under his tenancy’. It was submitted that if full effect is given to the deeming clause, then in a house where the tenant was living with his four sons, one of his sons getting any accommodation in the same city or town, the tenant along, with his remaining three sons have to be evicted which shall lead to an absurd result. Although we are not concerned in the present case with the scope of sub-section (3) of Section 12, but in order to appreciate the submission made on behalf of the respondents, we may point out that sub-section (3) of Section 12, does not conceive that if one of the sons living with the tenant, who is not wholly dependent on such tenant acquires any other other residential building in the same city or town, then even the original tenant shall be deemed to have ceased to occupy the building in question. This is apparent from Explanation (b) to said sub-section (3) which says:

“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.”

In view of the explanation any member of the family mentioned in sub-section (3) shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. As such, if a son of the tenant who is not wholly dependent on such tenant, acquires or gets any residential building in the same city or town, there is no question of the tenant deemed to have ceased to occupy the building under sub-section (3) of Section 12.”

10. According to Sri W.H Khan, the effect of the decision of the Full Bench and the subsequent decision in Syed Mazhar Mustafa Jafri (1992 (1) All WC 190) (supra) and host of other decisions of this Court has been to a considerable extent whittled down by the decision of the Apex Court in Mohd. Azeem (supra) and Harish Tandon (supra). At the first flush the provisions of sub-section (3) of Section 12 of the Act appear to be quite strange, harsh and inequitable leading to absurd results. The old parents may be led to a serious trouble if a married son (not dependent) but who normally resided with parents, of necessity, for variety of reasons, such as paucity of accommodation, to maintain harmonious relations by living separately and to enjoy the family life independently without any interference, of the parents acquires an independent accommodation. In course of time, the family members go on multiplying it become wellnigh impossible to live in the original tenanted accommodation comfortable and conveniently. The bond of love and affection which existed between parents and the son on account of social fabric and the present prevailing environment breaks in course of time by introduction of daughter-in-laws. In these circumstances, if a son separates from his parents by taking another accommodation, in that event, the parents would automatically be deemed to have ceased to occupy the tenanted accommodation thereby rendering themselves liable to ejectment. According to Sri W.H Khan, the deeming provision is clearly against the stark realities of life and should not receive judicial approval. The submission of Sri Khan, though quite attractive and plausible, does not stand the test of legal scrutiny. In Harish Tandon' case (supra), it has been observed in paragraph 26 that the judgment in Mohd. Azeem's case (supra) by which the Full Bench decision of this Court was overruled, does not lay down the correct law. The effect of this observation is that the Apex Court has not approved its own earlier decision in Mohd. Azeem's case (supra), and therefore, whatever has been canvassed, considered and determined in the Full Bench decision in Smt. Rana Devi Shakya's case (1981 All Rent Cas 305) (supra) holds good. This aspect of the matter was considered in Syed. Mazahar Mustafa Jafri's case (1992 (1) All WC 190) (supra) by this Court and after taking into consideration the various observations made in Mohd. Azeem's case (supra) and Harish Tandon's case (supra), it was held that the law laid down by the Full Bench of this Court in Smt. Rama Devi Shakya's case (supra) still holds good.

11. Sri Ravi Kant pointed out that stray observations made in Harish Tandon's case ((1995) 1 SCC 537 : AIR 1995 SC 676) (supra) in paragraph 19 of the Report are not in the nature of obiter dicta and, therefore, not binding on this Court. In support of this submission, Sri Ravi Kant placed reliance on the decisions in Dalbir Singh v. State of Punjab, (1979) 3 SCC 745 : (AIR 1979 SC 1384), (para 22); Krishna Kumar v. Union of India, (1990) 4 SCC 207 : (AIR 1990 SC 1782); Prakash Amichand Shah v. State of Gujarat, (1986) 1 SCC 581 : AIR 1986 SC 468; Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213 : (AIR 1987 SC 1073), Municipal Corporation Delhi v. Gurunam Kaur, (1989) 1 SCC 101 : (AIR 1989 SC 38), Union of India v. Dhanwanti Devi (1996) 6 SCC 44 : (1996 AIR SCW 4020); A.D.M v. Shiva Kant Shukla, (1976) 2 SCC 521 : AIR 1976 SC 1207; Gasket Radiators Pvt. Ltd. v. Employees' State Insurance Corporation (1985) 2 SCC 68 : (AIR 1985 SC 790); Amarnath Om Prakash v. State of Punjab, (1985) 1 SCC 345 : AIR 1985 SC 218; Regional Manager v. Pawan Kumar Dubey, (1976) 3 SCC 334 : AIR 1976 SC 1766; and Prakash Chandra v. State of U.P, AIR 1960 SC 195 which have all been discussed in the decision of a Division Bench of this Court in National Textile Corporation v. Swadeshi Cotton Mills Co. Ltd. (2000) 1 All Rent Cas 189 as well as other decisions of the Apex Court in Sree Nivasa General Traders v. State of Andhra Pradesh (1983) 4 SCC 353 : (AIR 1983 SC 1246); Kewal Krishna Puri v. State of Punjab, (1980) 1 SCC 416 : (AIR 1980 SC 1008) discussed in the decision of this Court in Sarswati Chaddha (supra). The gamut of all the above decision is that when the observations of high judicial authority like the Supreme Court are being considered, the greatest possible care must be taken to relate to the observations of a Judge to the precise issues before him and to confine such observations even though expressed in bread terms in general compass of the question before him unless he makes it clear that he intended the remarks to have a wider ambit. The decisions of the Courts should not be followed generally like statute irrespective of their particular fact situation. It was emphasised that in order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts of a case in which the decision was given and what was the point which had to be decided. The decision is an authority only for what it actually decides and not for what may logically follow from it. Every judgment must be read as applicable to the particular facts proved for assumed to be proved since generality of the expressions which may be found there are not intended to expositions of whole law but governed or modified by the particular facts of the case in which expressions are to be found. In Harish Tandon's case ((1995) 1 SCC 537 : AIR 1995 SC 676) (supra), the Apex Court had to decide a matter with regard to it non-residential building to which deeming provision of Section 12(2) of the Act was attracted. In that case, after the death of original tenant, his sons carried on business of deceased father in partnership in the tenanted building and one of them inducted his son-in-law as one of the partners. It was held that son-in-law not being a member of family within the definition of Section 3(g) of the Act and by virtue of his induction as a partner, a deemed vacancy and such induction amounted to sub-letting in view of deeming provision of Section 12(2) and (4), as well as explanation (i) to Section 25 of the Act. The observations contained in paragraph 19 with regard to the operation of sub-section (3) of Section 12 of the Act concerning residential accommodation were not germane to the decision in Harish Tandon's case (supra). The observations relied upon by Shri W.H Khan in Harish Tandon's case (supra), therefore, are of no help to him as they do not bind this Court as a precedent.

12. It is well settled that the deeming provision is an admission of the non-existence of the fact deemed. It is quite possible that on account of deeming provision, serious hardship, as pointed out by Sri W.H Khan, may occur but at the alter of hardship, the plain provisions of law which envisage a deemed contingency cannot be sacrificed. This point has been dealt with comparatively in greater details in Syed Mazahar Mustafa Jafri's case (1992 (1) All WC 190) (supra) in which similar plea was taken that sub-section (3) of Section 12 read with explanation (b) would result in serious hardship if one of the family members or the tenant acquires a residential accommodation in a vacant state in the same city. Placing reliance on the decision of the Apex Court in Commr. of Agricultural, Income-tax v. Keshab Chandra Mandal, AIR 1950 SC 265, as well as Morvi Mercantile Bank Ltd. v. Union of India, AIR 1965 SC 1954 it was held that the question of hardship cannot be and should not be allowed to affect the true meaning of the words used in a statute; hardship or inconvenience cannot alter the meaning of the language employed by the legislature if such meaning is clear on the face of the statute or the rules. The argument of inconvenience and hardship was found to be a dangerous one and was only admissible in a construction where the meaning of the statute is obscure. Where the meaning of the statute is clear and explicit, if any hardship or inconvenience is felt, it is for the legislature to take appropriate steps to amend law and not for the courts to legislate under the guise of interpretation. Section 12 seeks to achieve the object that a tenant should not have more than one accommodation in the same city so as to protect the interest of others who are suffering on account of scarcity of accommodation. The Full Bench of this Court was also not unaware of the hardship which may arise on account of strict interpretation of the deeming provision. In paragraph 30 in Smt. Rama Devi Shakya's case (1981 All Rent Cas 308) (supra), the Full Bench observed as follows:

“30. The rigour of Section 12(3) is considerably softened by proviso (b) to Rule 10(6) of the Rules. This proviso reads:

“In the case of a residential building under the tenancy of a person who shall be deemed by virtue of Section 12(3) to have ceased to occupy it by reason of his or any member of his family building or otherwise acquiring in a vacant state or getting vacated another residential building in the same local area, whether that other building is built or acquired or got vacated before or after the date of commencement of the Act, if the District Magistrate is satisfied that the two buildings are occupied by the tenant and a member of his family separately, and that they are separately in messing, the District Magistrate may re-allot the residential building deemed to be vacant under Section 14(4) to the said tenant or to the said member of his family as the case may be.”

13. Even though the acquisition of another building by the tenant or a member of his family may bring about vacancy, yet, if the District Magistrate is satisified that the two buildings are occupied separately and that there is separate messing he may re-allot the building under tenancy to him. It is open to the present petitioners to apply for re-allotment on the ground that they are living separately and have separate messing, even though the accommodation in their tenancy has fallen vacant under Section 12(3).”

14. Be that as it may, the fact remains that a deeming provision has to be given full effect and the object and purpose of the provision cannot be frustrated on the ground of hardship and inconvenience. In paragraphs 13 to 17, the Apex-Court in Harish Tandon' case ((1995) 1 SCC 537 : AIR 1995 SC 676) (supra) has delt over the matter of the role of a provision in a statute creating legal fiction. It was held placing reliance on East End Dwelling Co. Ltd. v. Finsbury Borough Council (1952) AC 109 : (1951) 2 All ER 587, State of Bombay v. Pandurang Vinayak, AIR 1953 SC 244 : 1953 SCR 773; Chief Inspector of Mines v. Karam Chand Thapar, AIR 1961 SC 838 : (1962) 1 SCR 9; J.K Cotton Spinning and Weaving Mills Ltd. v. Union of India, 1987 Supp SCC 350 : AIR 1988 SC 191; and M. Venugopal v. Divisional Manager, Life Insurance Corporation of India (1994) 2 SCC 323 : (1994) 1 JT (SC) 281 : ((1994) 2 SCC 323 : AIR 1994 SC 1343) that when a statute creates a legal fiction saying that something shall be deemed to have been done which in fact, in truth, has not been done, one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real, the consequences and incidents, which, must inevitably have flowed. If a person who is either wholly dependent on or is normally residing with the tenant, acquires, a house in a vacant state in the same city, there can be no escape from the conclusion that the tenant has ceased to occupy the tenanted building. No discretion is left to the Court to enquire or investigate as to what was the purpose or object of such a person to acquire another house.

15. In the backdrop of the above legal position, now it is the time to consider the effect of the acquisition of a house by Ashok Chhabara, son of late Radha Kishan Chhabara who originally was the tenant in respect of which a deemed vacancy is said to have arisen. It is an indubitable fact that late Radha Krishan Chhabara, the original tenant was living in the tenanted house along with his wife, Smt. Lilawanti, the present petitioner and three sons, namely, Ashok Chhabara, Prem Chhabara and Rakesh Chhabara. During the life time of his father, Ashok Chhabara who had been married, left the tenanted house and shifted to a rented house D 41, Govind Nagar Kanpur in the year 1984. He shifted to another house 118/316 Kaushalpuri, Kanpur in the year 1985 and acquired on rent house No. 120/192-A Lajpat Nagar, Kanpur in the year 1989. The original tenant Radha Kishan Chhabara died on 16-10-1990. It is common case of the parties that Ashok Chhabara was not wholly dependent on his father. Now the question is whether he was normlly residing with his father or not. Undoubtedly prior to his shifting to house No. D41 Govind Nagar, Kanpur in the year 1984, Ashok Chhabara was residing with his father. Sri Ravi Kant, learned counsel for the landlord respondents urged that as a matter of fact and in law, a deemed vacancy had arisen right in the year 1984 when Ashok Chhabara who was residing with his father had acquired rented house D-41 Govind Nagar, in Kanpur city itself. In support of his contention, he not only placed reliance on the observation made in Syed. Mazahar Mustafa Jafri's case (1992 (1) All WC 190) (supra) but also made a reference to the other decisions of this Court, namely, Rajendra Prasad v. IXth Addl. District Judge, Kanpur, 1980 All CJ 194 : (1981 All LJ NOC 6); Mahendra Singh v. Xth Addl. District Judge, Kanpur Nagar, 1988 All WC : (1988 All LJ 312); Smt. Shashi Govil v. District Judge, Meerut, 1989 (1) ALL Rent Cas 108 : (1989 All LJ 188) and Trust Asha Mai Dharmashala v. IIIrd Addl. District Judge, Dehradun, 1991 JRC 426 : (1991 All LJ 866) capped by the recent decision in Hriday Narain Misra v. Raj Narain Shukla (2001) 1 All Rent Cas 272 : (AIR 2001 All 162). The gist of all the above decisions is that the relevant point for applying Section 12(3) of the Act to the tenant is when another residential accommodation is acquired in a vacant state and not on the date on which the application for allotment or release was made. In the instant case, a deemed vacancy arose in the year 1984 when Ashok Chhabara had acquired rented house No. D-1, Govind Nagar, Kanpur. Even otherwise, there is enough evidence on record to indicate that Ashok Chhabara was normally residing with his father. The Rent Control and Eviction Officer, after appraising the evidence on record, has recorded a finding of fact that Ashok Chhabara was ailing. Ashok Chhabara was an accused in a case under Section 13 of the Gambling Act. In the Frist Information Report in crime case No. 334 of 1990, he was shown to be residing at the address of his father. In the year 1988-89 two sons of Ashok Chhabara took birth and the record of birth maintained by the Municipal Corporation indicates that their residence was shown in the tenanted accommodation (111-A/214 Ashok Nagar, Kanpur). In the ration card, the name of Ashok Chhabara is also found along with other family members. All these documents indicate that Ashok Chhabara was normally residing in the tenanted house with his father and subsequently shifted to a rented house No. 120/192-A Lajpat Nagar, Kanpur.

16. There can be no escape from the finding that Ashok Chhabara was normally residing with his father in the tenanted house and that he has acquired other houses from time to time on rent for his residence.

17. Ashok Chhabara being a member of the family, which expression, has been defined under Section 3(g) of the Act, acquired another residential building in the same city in a vacant stage for his occupation and consequently, the tenant(s) ceased to occupy the tenanted accommodation in view of the provision of sub-section (3) of Section 12 read with explanation (b). Thus, the impugned order of vacancy dated 26-2-2000 passed by the Rent Control and Eviction Officer does not suffer from any legal infirmity.

18. Both on factual and legal matrix, the writ petition fails and is accordingly dismissed without any order as to costs. The interim order dated 12-3-2001 passed by this Court, shall stand discharged vacated.

19. It is made clear that in spite of the fact that the tenant accommodation has fallen vacant, the petitioner shall be entitled to move an application for fresh allotment in view of the proviso (b) to Rule 10(6) of the Rules framed under the Act and if the District Magistrate is satisifed that the tenanted building as well as the other building in occupation of Ashok Chhabara are occupied separately and that there is separate messing, he may re-allot the building under the tenancy of the petitioner and his son Prem Chhabara who have become joint tenants after the death of the original tenant late Radha Kishan Chhabara.

20. Petition dismissed.