Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Misc. Writ Petition No. 5628 of 1991

Judges

G.P Mathur, J.

Acts

section 12(3) of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).
Uttar Pradesh Urban Buildings (Regulation if Letting, Rent and Eviction) (Amendment) Act, 1976,
sub-section (1), or sub-section (2), or sub-section (3), sub-section (3-A) or sub-section (3-B),
Article 34 of Provincial Small Cause Courts Act
SECTION 106 TRANSFER OF PROPERTY ACT
ARTICLE 226 CONSTITUTION OF INDIA
clause (1) of sub-section (1) of section 21
U.P Act No. 28 of 1976. These provisions
Section 7(xi)(cc) of the Court Fees Act
sub-section (3) of section 12
sub-section (5) of section 12
provisions of sub-section (3)
Rule 10(6)(b) of the Rules,
XXII Rule 2 of the Rules
U.P Act No. 28 of 1976
Section 106 T.P Act
U.P Act 13 of 1972
section 12 (3).16.

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Smart Summary

Structured Summary of the Opinion (G.P. Mathur, J.)

Factual and Procedural Background

The petition challenges the order dated 6 February 1991 of the Rent Control and Eviction Officer (R.C. & E.O.), Allahabad, which declared house No. 61, Lukerganj, Allahabad, to be vacant. The accommodation was allotted in 1967 to Syed Riaz Ahmad Jafri (then City Magistrate). He died on 1 July 1987, leaving his widow and three sons (including Syed Manzar Mustafa Jafri and Syed Mazhar Mustafa Jafri). The landlord was originally Dr. S.N.L. Nigam and after his death S.C. Nigam became respondent no. 3.

Several persons (including Smt. Saroj Nigam and others) filed allotment applications asserting deemed vacancy under the statute on the basis that a member of the tenant's family had acquired a residential building in a vacant state. The Rent Control Inspector reported that Syed Manzar Mustafa Jafri had acquired a residential house (initially house No. 280, later converted to No. 136 L.I.G. Pritam Nagar) in a vacant state on 28 February 1986 and had taken possession. The R.C. & E.O. inspected and issued notices. The tenants (petitioners) filed objections and evidence; the R.C. & E.O. concluded that Manzar was normally residing with the original tenant when he acquired the new house and therefore held the disputed house to be deemed vacant under section 12(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act).

Counter and rejoinder affidavits were exchanged, and with consent the writ petition was finally disposed of per Chapter XXII Rule 2 of the Rules of Court. The petition was listed along with related writ petition No. 1228 of 1991 (Syed Mazhar Mustafa Jafri v. District Judge), and the record was before the judge at hearing.

Legal Issues Presented

What is the effect of the acquisition (on 28 February 1986) by Syed Manzar Mustafa Jafri of a residential building in a vacant state on the tenancy of house No. 61 Lukerganj — i.e., whether a deemed vacancy under section 12(3) of the Act arose on that date?
How is Explanation (b) to section 12(3) to be interpreted — in particular whether the member of the tenant's family must satisfy both conditions (neither normally residing with nor wholly dependent on the tenant) to be outside the expression "any member of family", or whether satisfying one condition suffices?
Whether the findings of the Rent Control & Eviction Officer on facts (residence of Manzar Mustafa Jafri) can be interfered with by this Court in writ proceedings under Article 226?

Arguments of the Parties

Petitioners' Arguments

The R.C. & E.O. erred in declaring the disputed building vacant because there was no finding that Manzar Mustafa Jafri was wholly dependent on the original tenant; thus the explanation (b) should protect the tenancy.
Relied on Mohd. Azeem v. District Judge (Supreme Court decision) to argue that the building under tenancy could not be deemed to have fallen vacant on the facts found by the R.C. & E.O.
Contended that the Full Bench decision in Smt. Rama Devi Shakya had been overruled by the Supreme Court in Mohd. Azeem, and therefore Explanation (b) should not require both conditions.
Argued that the R.C. & E.O. failed to consider and make a finding on whether Manzar Mustafa Jafri was wholly dependent on the tenant and sought remand for that finding.
Challenged the sufficiency of the R.C. & E.O.'s consideration of the affidavits and documentary evidence.
Contended that the original tenant's tenancy had been terminated by a notice dated 9 July 1984 (Section 106, Transfer of Property Act) and thus section 12(3) would not apply to him.
Argued that because landlords had filed Suit No. 107 of 1988 for eviction, they could not pursue a separate declaration of vacancy before the R.C. & E.O.

Respondents' / Landlord's Arguments

The evidence (documentary) established that Syed Manzar Mustafa Jafri was residing at 61 Lukerganj when he acquired the other house; the R.C. & E.O. considered the evidence and found accordingly.
Documentary items relied upon and pointed out to the Court included: (i) a written statement (27-01-1990) filed in Suit No. 107 of 1988 stating defendants were tenants of the disputed building; (ii) a certificate (19-03-1988) from the Joint Secretary, Allahabad Development Authority confirming possession given to Syed Manzar Mustafa Jafri with address shown as 61 Lukerganj; (iii) certificate from S.S.P. (31-03-1987) and (iv) solvency and Income Tax certificates showing address as 61 Lukerganj.
Submission that the vacancy proceedings were not initiated solely by the landlords but arose from allotment applications by third parties and inspection by the Rent Control Inspector.
Submission that a tenant whose tenancy has been terminated by notice continues to be a tenant for purposes of the Act (i.e., a statutory tenant) and thus section 12 applies to him; prior authorities support this position.

Table of Precedents Cited

Precedent	Rule or Principle Cited For (as stated in the opinion)	Application by the Court (how the precedent was used in this opinion)
Triveni Pratap Singh v. Smt. Gauri Chakravarty, 1977 ARC 307	Held that on a correct interpretation both conditions (not normally residing and not being wholly dependent) must be fulfilled before a person can claim to be excluded from "any member of family".	Cited to show one line of interpretation that requires both conditions to be satisfied for Explanation (b) to apply; used to support reading that both conditions must coexist to exclude a person from "member of family".
Smt. Rama Devi Shakya v. Addl. District Judge, 1981 ARC 305 (Full Bench)	Held that if a person is normally residing with the tenant, or is wholly dependent on him, either condition will make that person a member of the family; Explanation (b) does not require both conditions to be satisfied.	Discussed at length; the Court considered this Full Bench decision and its interpretation, noted the apparent conflict in authorities, and concluded that the Full Bench's view on the second question had not been addressed by the Supreme Court and therefore remained good law for the present controversy.
Mohd. Azeem v. District Judge, (1985) 2 SCC 550 : AIR 1985 SC 1118	Supreme Court allowed the appeal and set aside the order declaring vacancy; in that case an heir who had become a tenant in his own right building a house could not wipe out other tenants' interests; also observed that "when the Act defines 'tenant' and 'family' reference to personal law is irrelevant and the concept of joint tenancy is foreign."	The petitioners relied on this case; the Court distinguished Mohd. Azeem on facts (there the person who built had already become a tenant in his own right) and held Mohd. Azeem did not assist the petitioners. The Court also clarified that Mohd. Azeem did not overrule the Full Bench decisions on the specific point before this Court.
Mata Badal v. Board of Revenue, 1974 U.P. Tax Cases 571	Where there is doubt or ambiguity in authoritative English text it is permissible to look into the Hindi text to remove doubt or ambiguity.	Relied upon to justify consulting the Hindi version of Explanation (b) to resolve ambiguity in the English text of section 12(3); the Hindi text was quoted and used to interpret the provision.
Budhsen v. Sheel Chandra Agarwal, AIR 1978 Alld. 88 (DB)	Referred to in questions framed by a Single Judge about whether heirs are tenants-in-common or joint tenants (as part of inter-authority comparison).	Referenced in the Court's discussion of related questions referred in prior proceedings; included in the background on conflicting views but not applied to change the present outcome.
Ramesh Chand Bose; Gopeshwar Prasad Sharma, AIR 1977 Alld. 38 (DB)	Also referred to in the context of views that heirs of a tenant are tenants-in-common and not joint tenants.	Referenced as part of the set of local decisions whose consistency with Supreme Court authority was questioned in prior proceedings.
Badri Narain v. Rameshwar Dayal, AIR 1951 SC 186	Placed in issue by the Single Judge as to consistency with other decisions about the nature of tenancy among heirs.	Mentioned in the list of questions referred by a Single Judge; the Court noted the Supreme Court's decisions on related points but did not rely on this case to alter its conclusion on section 12(3) in the present facts.
Sri Nath Tandon v. Rent Control & Eviction Officer, 1979 Alld. RC 351 (DB)	Held that a member who acquires another building should both have been normally residing with the tenant and also been wholly dependent on him for section 12(3) to be attracted (as part of the discussion of varying views).	Referred to among conflicting authorities about the correct interpretation of Explanation (b); the Court noted the divergence in views and analyzed which line of authority applied to present facts.
Miss Nirmal Handoo v. R.C. & E.O., Allahabad, 1983 UP RCC 481	Held that an heir who had been residing with the tenant for many years inherited tenancy rights; no deemed vacancy occurred.	Cited by petitioners but the Court found the facts of that case distinguishable and held it had no application to the present controversy.
Som Nath Seth v. II Additional District Judge, 1980 ALJ 347	Authority relied on in support of remanding a matter for specific findings by the authority.	The Court considered the remand argument and held that remanding for a finding on dependence would be futile because the authority had already found residence; Som Nath Seth's facts differed (absence of any finding on Explanation (b)).
Commissioner of Agricultural Tax v. Keshav Chandra, AIR 1950 SC 265	Hardship or inconvenience cannot alter the clear meaning of statutory language.	Applied to reject the petitioners' submission that hardship should modify the statutory interpretation of section 12; the Court relied on this principle to uphold literal meaning where clear.
Morvi Mercantile Bank v. Union of India, AIR 1965 SC 1954	The argument from inconvenience/hardship is admissible only where the meaning of the statute is obscure; otherwise amendment lies with legislature not courts.	Invoked to support the Court's refusal to modify statutory meaning on grounds of perceived hardship.
Swarna Singh v. State of Punjab, (1976) 2 SCC 868 : AIR 1976 SC 232	Certiorari jurisdiction under Article 226 cannot be used to re-open findings of fact arrived at by a tribunal after appreciation of evidence; writ court is not appellate on facts.	Applied to hold that the factual finding of the R.C. & E.O. (that Manzar was normally residing with the tenant) could not be re-opened in writ proceedings and must be accepted unless jurisdictional error existed.
Babhootmal Raichand Oswal v. Laxmibai R. Tarte, (1975) 1 SCC 858 : AIR 1975 SC 1297	Supports the principle that writ courts cannot ordinarily re-appreciate evidence to upset factual findings of the tribunal.	Cited in support of the Court's stance that it should not re-open the R.C. & E.O.'s factual findings in writ proceedings.
Chandavarkar Sitaratnarao v. Ashalata S. Guram, (1986) 4 SCC 447 : AIR 1987 SC 117	Similar principle that factual findings of a tribunal are not to be re-opened in writ jurisdiction.	Used to reinforce the conclusion that the R.C. & E.O.'s finding on residence must be accepted by the writ court.
Sri Dinesh Chandra Misra v. II Addl. District Judge, 1980 ARC 116	Where a tenant's tenancy has been terminated by notice under Section 106 T.P. Act but continues in occupation, the word "tenant" in the Act should include such a person (statutory tenant).	Relied upon to reject the petitioners' contention that termination of tenancy by notice removed the applicability of section 12; Court held that such persons remain tenants for the purposes of the Act.
J.J. Pancholi v. Sridharjee, AIR 1984 Alld. 130	Held that a tenant after termination of tenancy becomes a "tenant at sufferance" and his position is no better than a trespasser.	Petitioners relied on it to argue termination ended tenant status; the Court distinguished and explained that despite such characterization, termination by notice does not remove statutory protection and such persons remain tenants for purposes of the Act.

Court's Reasoning and Analysis

The Court proceeded in a structured manner:

Statutory Text: The Court reproduced relevant statutory provisions — section 3(a)(1), section 3(g), and section 12 (including sub-section (3) and Explanation (b)) — and emphasised the wording of section 12(3) which creates a deemed vacancy where the tenant or any member of his family acquires in a vacant state a residential building in the same local area.
Interpretation of Explanation (b): The Court analysed Explanation (b) which excludes from "member of family" a person who "has neither been normally residing with nor is wholly dependent on such tenant." Noting textual ambiguity in the English version and relying on Mata Badal, the Court examined the Hindi text. The Hindi version made it clear, the Court held, that both conditions (neither normally residing nor wholly dependent) must be satisfied for a person to be excluded from "member of family". Consequently, unless both conditions are proved, the acquisition by a family member will result in deemed vacancy under section 12(3).
Precedent and Conflicting Authorities: The Court surveyed prior authorities. It noted Triveni Pratap Singh and the Full Bench in Smt. Rama Devi Shakya which took different views on whether one or both conditions were required. The Court observed that the Supreme Court's decision in Mohd. Azeem did not decide the particular second question (about the twin requirement in Explanation (b)) and had reversed the Full Bench only on a different question. Therefore, the Full Bench interpretation on the second question remained good law for the present controversy.
Application to Facts: The R.C. & E.O. had found that Syed Manzar Mustafa Jafri was normally residing with the original tenant (Syed Riaz Ahmad Jafri) when he acquired the other house on 28 February 1986. The Court examined documentary evidence relied upon by the respondent (possession certificate from Allahabad Development Authority, written statement in Suit No. 107 of 1988 describing defendants as tenants with address 61 Lukerganj, police and solvency/IT certificates showing that address) and concluded that the R.C. & E.O. had properly considered the evidence and recorded a factual finding accordingly.
Standard of Review: The Court applied settled principles (citing Swarna Singh and related Supreme Court authorities) that a writ court exercising certiorari jurisdiction under Article 226 cannot re-open findings of fact reached by a tribunal after appreciation of evidence. The finding that Manzar was normally residing with the tenant therefore could not be upset in this writ petition.
On Remand and Dependence Issue: The petitioners asked for remand to obtain a finding on whether Manzar was wholly dependent. The Court rejected remand as futile because — given the existing finding of normal residence — even an assumed favourable finding on dependence (i.e., that he was not wholly dependent) would not alter the result: Explanation (b) requires both non-residence and non-dependence, and the existence of residence alone precludes relief under Explanation (b).
Tenancy Status after Termination by Notice: The Court addressed the contention that service of a notice under Section 106 T.P. Act terminated the tenancy and thus section 12 would not apply. Relying on Sri Dinesh Chandra Misra and statutory context, the Court concluded that a tenant who remains in occupation after service of such notice is a statutory tenant for purposes of the Act and section 12 applies.
Proceedings Initiation: The Court explained that the vacancy proceedings were not initiated solely by the landlords but arose from allotment applications by third parties and the R.C. Inspector's report; moreover, deemed vacancy occurs by operation of law when the statutory event happens and is not negated by landlord inaction or consent.
Policy and Hardship Arguments: The Court rejected submissions that hardship requires a depart from the statutory meaning. It relied on authorities (Commissioner of Agricultural Tax v. Keshav Chandra; Morvi Mercantile Bank) to hold that hardship does not alter clear statutory language and that legislative amendment, not judicial rewriting, is the remedy for perceived harshness.

Holding and Implications

Holding: The writ petition is dismissed. The Court accepted the Rent Control & Eviction Officer's finding that Syed Manzar Mustafa Jafri was normally residing with the original tenant when he acquired another residential building in a vacant state, and held that as Explanation (b) did not apply, the disputed house was deemed vacant under section 12(3) of the Act. The petition was dismissed without costs and the stay order was vacated.

Implications:

Direct effect: The order declaring vacancy of house No. 61 Lukerganj stands and the writ petition challenging that order was dismissed; the stay was vacated.
Interpretive consequence (as stated in this opinion): The Court read Explanation (b) (supported by the Hindi text) to require satisfaction of both conditions (neither normally residing with the tenant nor wholly dependent on him) for a person to be excluded from the expression "any member of family" for purposes of section 12(3). Where a member of the family is found to have been normally residing with the tenant at the time of acquisition, the deemed vacancy follows regardless of dependence.
On appeals and precedent: The Court distinguished Mohd. Azeem on facts and observed that the Supreme Court's decision did not address the particular interpretive question now before this Court; consequently, earlier Full Bench authority on that interpretive point was held to remain applicable to the present controversy (as explained in the opinion).
No new broad precedent beyond the statutory interpretation and application to these facts was announced; the decision applies the Act and existing authorities to uphold the R.C. & E.O.'s factual finding and legal conclusion in this case.

Disposition in the original opinion: "Petition dismissed." (Order dismissing the writ petition without costs; stay vacated.)

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Syed Mazahar Mustafa Jafri And Another (Petitioners) v. Rent Control And Eviction Officer, Allahabad And Others (S).

G.P Mathur, J.:— This writ petition has been filed challenging the order dated 6th February, 1991, passed by the Rent Control and Eviction Officer, Allahabad, declaring house no. 61 Lukerganj, Allahabad, which is under the occupation of the petitioners, as vacant. Counter and rejoinder affidavits have been exchanged by the parties and with their consent the writ petition is being finally disposed of in accordance with Chapter XXII Rule 2 of the Rules of Court. By order dated 25th February, 1991, the petition was directed to be listed along with the record of writ petition no. 1228 of 1991 (Syed Mazhar Mustafa Jafri v. District Judge) and the record of the aforesaid writ petition was also before me at the time of the hearing of this petition.

2. The disputed accommodation bearing house no. 61 Lukerganj Allahabad, was allotted to Syed Riaz Ahmad Jafri, the then City Magistrate, Allahabad, in the year 1967. Syed Riaz Ahmad Jafri died on 1st July, 1987, leaving behind his widow Smt. K.S Jafri, three sons namely Syed Mazhar Mustafa Jafri, Syed Riaz Mustafa Jafri and Sved Manzar Mustafa Jafri, Dr. S.N.L Nigam was the owner-landlord of the house in dispute and after his death S.C Nigam, respondent no. 3, has become the landlord of the same. Several persons including Smt. Saroj Nigam, wife of K.C Nigam, respondent no. 2, moved allotment applications for the disputed house before the Rent Control and Eviction Officer, Allahabad, on the ground that a mem-ber of the family of the tenant had acquired a residential building in the city of Allahabad in a vacant state and, therefore, there was a deemed vacancy of the house in dispute. The Rent Control and Eviction Officer got the building inspected by the Rent Control Inspector who reported that Syed Manzar Mustafa Jafri, the second son of the tenant Syed Riaz Ahmad Jafri, had acquired a vacant residential building bearing house no. 280 L.I.G Pritam Nagar, Allahabad, from the Allahabad Development Authority on 28th February, 1986. Subsequently the said house was exchanged with Smt. Kamta Dutta and Manzar Mustafa Jafri acquired in vacant state house no. 136 L.I.G Pritam Nagar Housing Scheme, Allahabad, and got possession of the same. Thereafter the Rent Control and Eviction Officer issued notices to the concerned parties. The petitioners, who are the sitting tenants, filed objections challenging the report of the Rent Control Inspector. The landlord as well as the petitioners filed affidavits and documentary evidence in support of their case. After considering the evidence on record the Rent Control and Eviction Officer has held that in the life time of the original tenant Syed Riaz Ahmad Jafri, one of his sons namely Manzar Mustafa Jafri had acquired a residential building namely 136 L.I.G Pritam Nagar, Allahabad, in a vacant state on 28th February, 1986 and had got possession of the same. He has further held that at the time when Syed Manzar Mustafa Jafri acquired the aforesaid house, he was residing with his father and original tenant Syed Riaz Ahmad Jafri as a member of. his family in the disputed house, namely house no. 61 Lukerganj, Allahabad. On these findings the Rent Control and Eviction Officer held that the disputed house would be deemed to be vacant under section 12(3) of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). The petitioners have challenged this order, declaring vacancy, by means of the present writ petition.

3. Learned counsel for the petitioners has contended that on the findings recorded by the Rent Control and Eviction Officer he has erred in declaring the disputed; gilding as vacant as there is no finding that Manzar Mustafa Jafri was also wholly dependant on the original tenant. It may be noted that the question for consideration before this Court is as to what is the effect of acquisition of a residential building by Manzar Mustafa Jafri on 28th February, 1986, and whether any deemed vacancy has taken place on ‘the said date.

4. Before examining the contentions of the learned counsel for the petitioners it will be convenient to reproduce the relevant provisions of the statute, namely, section 3(a)(1), section 3 (g) and section 12 of the Act which a re quoted below for ready reference:—

“3 (a) “tenant”, in relation to a building, means a person by whom its rent is payable, and on the tenant's death—

(1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death;

“3 (g)— “Family”, in relation to a landlord or tenant of building means, his or her—;

(i) spouse,

(ii) male lineal descendants,

(iii) such parents, grand parents and any unmarried or widowed or divor-ced or judicially separated daughter, or daughter of male lineal descendant, as may have been normally residing with him or her,

and includes, in relation to a landlord, any female having a legal right of residence in the building;”

“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 member of his family have taken up residence, not, being temporary residence, elsewhere.

………………….

(3) In the case of a residential building, if the tenant or any member of his famil y 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………….

Explanation—For the purposes of this sub-section—

(a) ………………….

(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)— ………………………

(3-B) ………………………….

(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.

(5); A tenant or, as the case may be, a member of his family, referred to in sub-section (3) shall, have a right, as landlord of any residential building referred to in the said sub-section which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation if Letting, Rent and Eviction) (Amendment) Act, 1976, to apply under clause (1) of sub-section (1) of section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remain-ing provisions of this Act do not apply.”

5. 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 two conditions, namely (1) he has not been normally residing with the tenant, and (2) he is not wholly dependent on the tenant. Unless both the conditions enumerated in Explanation (b) are satisfied by a member of the family of the tenant his acquisition of a residential building in a vacant state would auto-matically result in the tenanted building falling vacant and the tenant shall be deemed to have ceased to occupy the building under his tenancy. 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, even then 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 municipality in which the building under tenancy is situate, the tenant shall be deemed to have ceased to occupy the building under his tenancy unless he establishes that the 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. In Triveni Pratap Singh v. Smt. Gauri Chakravarty, 1977 ARC 307 it was held as follows:—

“On a correct interpretation of the language employed both the conditions of not normally residing and not being wholly dependent on the tenant must be fulfilled before a person can claim to be not included in the expres-sion any member of family.”

6. It is obvious that the twin requirement of neither normally residing nor being wholly dependent on the tenant must be satisfied before the benefit of this explanation can be availed of.

7. In the present case although the husband is not wholly dependent on his wife but since he is a person who has been normally residing with her, the tenant (the wife) is not entitled to claim benefit of the explanation and the tenant shall be deemed to have ceased to occupy the building under her tenancy.’

8. The matter was again considered by a Full Bench of this Court in Smt. Rama Devi Shakya v. Addl. District Judge, 1981 ARC 305, and it was held as follows in para 16 to 18:—

“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 normall y residing with the tenant.

If a person who has been normally residing with the tenant builds or other-wise 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.”

9. As rightly observed in the aforeasaid Full Bench decision the languauge of sub-section (3) of section 12 of the Act is highly confusing It has been held by a Full Bench of Seven judges of this Court in Mata Badal v. Board of Revenue, 1974 U.P Tax Cases 571, that where there is some doubt or ambiguity in any provision in the authoritative English text it is permis— cible to look into the Hindi text to remove the doubt or ambiguity. I have, therefore, examained the Hindi version of the Act. Explanation (b) as given in the Hindi version is being quoted below;

“(Kha) kisi kirayedar ke samandh me pad ‘parivar ka koi sadasya’, ke antargat aisa vyakti na hoga jo' samanataya aise kirayedar ke sath na to rahta ho aur na us par pumataya ashrit ho.

10. The Hindi version makes it clear that if the family member of the tenant, who has done the offending act, is such a person who satisfies both the conditions, viz., that he was neither normally residing nor he was wholly dependant on the tenant then he will not come within the ambit of the expression “any member of his family” in sub-section (3). This explanation has been added by U.P Act No. 28 of 1976 for the benefit of the tenant. Therefore, if a member of the family of a tenant builds or otherwise a cquires in a vacant state or gets vacated a residential building in the same city, the building under the tenancy of the tenant is deemed vacant but such a result will not follow if the tenant establishes that the aforesaid member of his family was such a person who satisfied both the conditions, viz., (1) he has not been normally residing with him, and (2) he is not wholly depen-dant on him.

11. In the present case the finding on the first point is to the contrary. The Rent Control and Eviction Officer has held that Manzar Mustafa Jafri was residing with his father Syed Riaz Ahmad Jafri, who was the tenant, when, he acquired another residential building in vacant state on 28th February, 1986. Therefore the explanation (b) will not apply and the tenant shall be deemed to have ceased to occupy the building under his tenancy.

12. Learned counsel for the petitioners placed great reliance on Mohd. Azeem v. District Judge, (1985) 2 SCC 550 : AIR 1985 SC 1118 in support of his submission, that even on the facts found by the Rent Control and Eviction Officer the building under the tenancy of the petitioners cannot be deemed to have fallen Vacant. In my opinion the case of Mond. Azeem is clearly distinguishable on facts. In this case one Manzoor Hussain was the tenant of the building. He died in 1969 leaving behind a widow and three sons and a daughter. One of the sons Mohd. Naim, built a house in 1980. The Rent Control Inspector submitted a report on 2nd June, 1983, to the effect that Mohd. Naim having built a house the tenaney must be deemed to have terminated in view of the provisions of Section 12 of the Act. The Rent Control and Eviction Officer held that the building must be deemed to have become vacant when Mohd. Naim built a house. This order was upheld by the District Judge in revision and also by the High Court in writ petition. Mohd. Azeem's appeal was allowed by the Hon'ble Supreme Court and the order declaring vacancy was set aside on the ground that after the death of Man-zoor Hussain in 1969 each one of his heirs, namely, the widow, the three sons and the unmarried daughter, became tenant when the Act came into force. In para 7 of the report it was observed as follows:—

“It is the case of the prescribed Authority and there is no dispute about it, that Naim has built a house in the same city some time in 1980. Naim's building a house and moving into it cannot wipe out the interest of the widow, other two sons, including the appellant, and the daughter, if in their own right they were tenants by satisfying the requirements of the definition. The words ‘if the tenant or any member of his family’ obviously mean, in the facts of the case, Naim and the members of his family and do not relate to the widow, other two sons and the daughter of Manzoor. If everyone's interest was to be wiped out, Section 3 had to provide differently and instead of the shall be deemed to have ceased to occupy the building under his tenancy as occurring in sub-section (3) reference would have been made to all the tenants.”

13. It is obvious that on the death of the original tenant Manzoor Hussain in 1969 Naim had himself become a tenant in his own right and the event of his subsequently building a house in the year 1980 was not an acquisition of a residential building by any member of family of the tenant as Naim was not a member of the family of the tenant. There were other heirs of Manzoor Hussain who had also become tenants in view of the definition given in sub-section (1) of Section 3 (a) of the Act and they had not acquired any residential building-This will be further clear from the following observation made in para 11 of the report which is as follows:—

“Each heir satisfying the further qualification in Section 3(a)(1) of the Act in his own right becomes a tenant and when we come to Section 12(3) of the Act, the words “the tenant or any member of his family” will refer to the heir who has become a tenant under the statutory definition and members of his family. ‘Family’ have been defined for convenience if we refer to the facts of the present appeal qua Naim, the definition would cover Naim's wife, his male lineal descendants, his mother and those who are covered by “clause (iii) in the definition of family. If would not by any stretching embrace the appellant or his brother Nadeem and the sister…,”

14. It the present case what we have to consider is whether any deemed vacany took place on 28th February, 1986, when Nazar Hussain Jafri acquired house no. 136 Pritam Nagar in a vacant state. Admittedly at that time Syed Riaz Ahmad Jafri was alive and he died much later, on 1st July, 1987. On the date of the acquisition of the residential building Manzar Hussain Jafri had not become tenant of the disputed house but was a member of the family of Syed Riaz Ahmad Jafri. Therefore, Mohd. Azeem's case is distinguish-able on facts and can be of no assistance to the petitioner.

15. Learned counsel for the petitioner has next contended that since the Full Bench decision given in the case of Smt. Ramadevi Shakya (supra) has been over-ruled by the Supreme Court in Mohd. Azeem's case it must be held that in order to get the benefit of Explanation (b) to sub-section (3) it is not necessary for the tenant to establish that the member of the family who had done the offending act was not normally residing and was also not wholly dependant on him as has been held by the Full Bench. In order to appreciate the argument of the learned counsel for the petitioner it will be necessary to examine the facts of the case of Smt. Ramadevi Shakya (supra). In this case the original tenant S.R Shakya died in May, 1973, leaving behind his widow and five sons and as such tenancy devolved on all of them. One of the sons Dr. R.R.P Singh applied for allotment of another house which was allotted to him and he got possession of the same in 1975. He along with his own family and one of his brothers then shifted to the allotted house. The landlord applied for the release of the building on the ground that it had fallen Vacant. The District Judge held that as Dr. R.R.P Singh had acquired another residential building the building under the tenaney of S.R Shakya had fallen vacant. The facts of the case show that after the death of the original tenant, S.R Shakya, in 1973 the tenancy devolved upon his widow and five sons. Dr. R.R.P Singh himself became a tenant in view of seotion 3(a)(1) of the Act and his acquisition of a residential building in vacant state obviously could not affect the interest of his mother, and other brothers who had become tenants in their own right, as on the date of taking possession of the allotted house. Dr. R.R.P Singh was not a “member of the family” of the tenant but had become tenant in his own right. It is, therefore obvious that the interest of the mother and the brothers of Dr. R.R.P Singh could not at all be affected by the allotment of the house in his favour. Therefore, the facts of this case are not identical to the facts of the case in hand but are identical to the case of Mohd. Azeem. The learned Single Judge, who hear the writ petition, had referred the following two questions for consideration by the larger Bench:

‘1. (a) Whether the view expressed in Budhsen v. Sheel Chandra Agarwal, AIR 1978 Alld. 88 (DB) and Ramesh Chand Bose, Gopeshwar Prasad Sharma. AIR 1977 Alld. 38 (DB) to the effect that the heirs of tenant areytenants-in-common and not joint tenants, is consistent with the view expressed by the Supreme Court in Badri Narain v. Rameshwar Dayal, AIR 1951 SC 186?

(b) Do such heirs of a tenant become tenants in common interse, but remain joint tenant qua the landlord?

‘(c) What is the effect of one of such heirs acquiring another building as mentioned in section 12(3) of U.P Act no. 13 of 1972?

2. Whether the view expressed in Sri Nath Tandon v. Rent Control & Eviction Officer, 1979 Alld. RC 351 (DB) to the effect that a member of the family who acquires another building should both have been normally resi-ding with the tenant and also been wholly dependent on him, for section 12 (3; to be attracted, is consistent with Explanation (b) to section 12 (3).”

16. The second question quoted above did not come up for consideration before the Hon'ble Supreme Court in Mohd. Azeem case as the question did not at all arise for consideration on the controversy involved in the said case The Hon'ble Supreme Court was only concerned with the first question which had been referred to the Full Bench. It is the answer to this first question given by the Full Bench in Smt. Rama Devi. Shakya's case which has been over-ruled by the Supreme Court. The controversy in the present case, which revolves round the second question referred to the Full Bench, has not been considered by the Hon'ble Supreme Court and, therefore, in my opinion, the view expressed in Tribeni Pratap's case and Smt. Ramadevi Shakya's case is still good law.

17. Learned counsel for the petitioner also placed reliance upon a deci-sion of a learned Single Judge of this Court in Miss Nirmal Handoo v. R.C & E.O Allahabad, 1983 UP RCC 481, in support of his submission that the order declaring vacancy is illegal. In this case application for allotment was made after the tenant R.N Zutshi, who was a bachelor died on 25th March, 1980. This was confested by the petitioner Nirmal Handoo on the ground that her mother, who was sister of Shri Zutshi, had died in 1936 - when she was ten years of age and since then she had been living with him and was also brought up by him. She then pleaded that she was in occu-pation of the building since 1936 along with Shri Zutshi and that the tenancy “rights had devolved upon her. The finding of the R.C & E O was that Miss Handoo was residing in the building with Shri Zutshi at least since 1952. This Court held that she was an heir of Shri Zutshi and therefore on his death she herself inherited the tenancy rights under section 3(a)(1) of the Act and no vacancy could be deemed to have occurred under section 12(1)(b) of the Act on 25th March, 1980. Therefore, this case has no application to the controversy in hand.

18. Learned counsel for the petitioner then contended that sub-section (3) of section 12 of the Act has been held to be ultra vires by the Hon'ble Supreme Court in Mohd. Azeem's case (supra) and placed reliance upon the observations made in para 8 of the report. In my opinion the Hon'ble Supreme Court has not declared the’ provisions of the statute as ultra vires but has reversed the ratio of the Full Bench decision of this Court in Smt. Ram Devi Shkhya's case. Para 8 of the report should not be read in isolation but along with para 9 wherein the Court has held as follows;

“In our view when the Act defines “tenant” and “family” reference to personal law is irrelevant and the concept of joint tenancy is foreign.”

19. It was next contended that the interpretation given ro sub-section (3) of section 12 in Tribeni Pratap's case and Smt. Ram Devi Shkhya's case will cause extreme hardship to a tenant and, therefore, Explanation (b) should be so construed that even if one of the conditions is satisfied by member of the family of the tenant, the vacancy should not occur. In my opinion the submission made by the learned vounsel cannot be accepted. The object of the Act is not to protect a sitting tenant even if a member of his family has acquired another building. U.P Act 13 of 1972 has been enacted in the interest of the general public which will be clear from its preamble which reads as follows:—

“An Act to provide, in the interest of the general public, for the regulation of letting and rent of, and eviction of tenants from certain classes of buildings stituated in urban areas, and for matter connected therewith.”

20. The object of the Act is to make available as many accommodations as possible for allotment to needy persons. The Act, therefore, does not provide protection to those tenants who have in their possession more than one build-ing in the same city. In certain situations like where a member of the family of the tenant is living separately and is separate in messing the Rent Control & Eviction Officer may reallot the residential buildings, deemed to be vacant under Rule 10(6)(b) of the Rules, to the said tenant. Similarly sub-section (5) of section 12 gives the tenant a right to apply for release under section 21(1)(a) of the Act to the residential building, for his personal occupation, which may have been let out by him before the commencement of U.P Act No. 28 of 1976. These provisions considerably soften the rigour of section 12 to a tenant. It may also be noticed at this stage that this provi-sion can cause considerable hardship and inconvenience to a landlord as well Section 3 (g) of the Act will show that brother, sister, newnew, married daughter, son-in-law, daughter's son and daughther's daughter are not included in the definition of ‘family’. If a landlord allows any one enumerated above to occupy his building it shall be deemed to be vacant by virtue of section 12(1)(b) of the Act. Similarly if a landlord substantially removes his effects or he as well as member of his family take up residence, not being temporary residence, else where the building shall be deemed to be vacant under clause (a) or (c) of sub-section (1) of section 12 of the Act. Section 12, therefore, seeks to achieve the object for which the Act has been enacted and it will not be proper to take into consideration the likely hardship to a tenant or a landlord in giving a different meaning other than that which is permissible by the language used in the section.

21. It is well settled principle of law that the question of hardship cannot be and should not be allowed to effect the true meaning of the words used in a jstatute. In Commissioner of Agricultural Tax v. Keshav Chandra, AIR 1950 SC 265, it was held as follows:—

“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.”

22. Again in Morvi Mercantile Bank v. Union of India, AIR 1965 SC 1954, it was held as follows:—

“To the argument that there will be a possible inconvenience and hardship to merchants if a particular practice is not judicially recognised, the answer is that the argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure. Where the meaning of a statute is clear and explicit, if any hard-ship and inconvenience is felt, it is for the parliament to take appropriate steps to amend law and not for the courts to legislate under the guise of interpretation.”

23. Learned counsel for the petitioner next submitted that the case of the petitioners was that Manzar Mustafa Jafri was not wholly dependant upon the tenant Syed Riaz Ahmad Jafri when he acquired another residential buil-ding but the Rent Control & Eviction Officer has not considered this aspect of the matter and has given no finding on this question and, therefore, the case should be remanded to him. In support of this submission he relied upon a decision of this court in Som Nath Seth v. II Additional District Judge, 1980 ALJ 347. In my opinion no useful purpose will be served by remanding the case to Rent Control & Eviction Officer for obtaining a finding on this point as even if this finding is assumed to be in favour of the petiti-oners namely that Manzar Mustafa Jafri was not wholly dependent on the tenant at the time when he acquired another building it will make no diffe-rence in the ultimate result of the case. Since there is a finding by the authority that Manzar Mustafa Jafri has been normally residing with the tenant, a finding to the effect that he was not dependant on the tenant cannot save the building from being declared vacant. In the case of Som Nath Seth (supra) the authority had not recorded any finding with regard to Explanation (b) and had declared the building as vacant merely on the ground that the mem-ber of the family of the tenant had acquired another residential building though it was pleaded on behalf of the tenant that the member of the family who had acquired the residential building was such a person who was, neither residing with him nor was dependant upon him. Therefore, on the facts of the present case, where the finding on the question of residence is against the petitioner, it will be an exercise in futility to remand the case.

24. Shri Zaidi, learned counsel for the petitioners, then challenged the finding recorded by the Rent Control & Eviction Officer and submitted that the affidavits and documentary evidence filed by the petitioners have not been properly considered by the authority. Shri K.M Dayal, Senior Advocate, appearing for the respondent no. 3, however submitted that the evidence adduced by the parties had been properly considered by ths Rent Control and Eviction Officer. He further submitted that there was reliable documentary evidence on record to show that Manzar Mustafa Jafri was residing along with the tenant in house No. 61 Lukerganj, Allahabad, even after he had acquired house no. 136 Pritam Nagar from the Allahabad Development Authority. In this connection he drew the attention of the court to the following documents:—

(1) Annexure SCA II to the first supplementary counter affidavit is a copy of the written statement dated 27-1-1990 which was jointly filed by Syed Manzar Mustafa Jafri along with his two brothers and mother in suit no. 107 of 1988 and in para 3 thereof it was' mentioned that the defendants were tenants of the building in dispute.

(2) Annexure SCA I to this affidavit is the certificate date 19-3-1988 issued by the Joint Secretary, Allahabad Development Authority certifying that Syed Manzar Mustafa Jafri, resident of 61 Lukerganj, Allahabad, had been given possession of house no. 280 on 28-2-1986 which was subsequ-ently converted into house no. 136.

(3) Annexure CA 2 to the counter-affidavit is the certificate issued by the S.S.P, Allahabad, on 31-3-1987 certifying that Syed Manzar Mustafa Jafri, resident of 61 Lukerganj, Allahabad, had not been prosecuted in any criminal case.

(4) Annexure CA 3 is the copy of the solvency certificate issued by Tahsildar, Chail, Allahabad, on 20-3-1988 and Annexure CA IV is the copy of the Income Tax clearance certificate dated 21-2-1967 issued in favour of Syed Manzar Mustafa Jafri. In both these certificates his-address has been shown as 61 Lukerganj, Allahabad. The aforesaid papers conclusively estab-lish that Syed Manzar Mustafa Jafri was residing in the disputed building bearing house No. 61 Lukerganj, Allahabad. I have examined the judgment and order of Rent Control & Eviction Officer and in my opinion he has con-sidered the evidence adduced by the parties and thereafter he has recorded the finding that Syed Manzar Mustafa Jafri was normally residing with his father Syed Riaz Ahmad Jafri when he acquired house no. 136 Pritam Nagar, Allahabad, and got possession of the same.

25. There is another important circumstance which lends corroboration to the finding recorded by the authority. The landlords ihave filed S.C.S Suit No. 107 of 1988 for eviction of the tenants in which an ex-parte order was passed. The tenants moved an application for setting aside the ex-parte order Which was rejected and the revision filed by them was also dismissed. Then they filed writ petition No., 1728 of 1991 in this court. In the writ petition Syed Manzar Mustafa Jafri was impleaded as petitioner no. 3 along with the two petitioners of the present writ petition and his address was also shown as 61 Lukerganj, Allahabad. The affidavit in support of this petition was filed by Syed Mazhar Mustafa Jafri, petitioner no. 1. In face of this documentary evidence th? contention of the petitioners that the finding of Respondent no. 2 regarding residence of Syed Manzar Mustafa Jafri is incor-rect, cannot be accepted.

26. The question as to where Syed Manzar Mustafa Jafri was residing is a pure question of fact. The finding of respondent no. 2 on this question cannot be challenged in a writ petition filed under Article 226 of the Constitution of India. In Swarna Singh v. State of Punjab, (1976) 2 SCC 868 : AIR 1976 SC 232, it was held as follows:—

“It is well settled that certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The court exercising special jurisdiction under Article 226 is not entitled to act as an appellate court, his limitation necessarily memans that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.”

27. Similar view was taken in Babhootmal Raichand Oswal v. Laxmibai R. Tarte, (1975) 1 SCC 858 : AIR 1975 SC 1297 and Chandavarkar Sitaratnarao v. Ashalata S. Guram, (1986) 4 SCC 447 : AIR 1987 SC 117. Therefore, the finding recorded by the respondent no. 2 to the effect that Syed Manzar Mustafa Jafri was normally residing with the tenant in the disputed building, namely, 61 Lukerganj, Allahabad, when he acquired another residential building in vacant state, has to be accepted as correct.

28. Learned counsel for the petitioners also submitted that the tenancy of the original tenant Syed Riaz Ahmad Jafri had been terminated by the landlords by means of a notice dated 9th July, 1984, and thereafter he ceased to be a tenant of the building and since in Section 12 of the Act the word “tenant” has been used the provisions of sub-section (3) thereof would not apply to him even if one of the members of his family had acquired another residential building. According to learned counsel, after the tenancy of a tenant has been terminated by a notice given by the landlord under Section 106 of the Transfer of Property Act he becomes a trespasser and as such the provisions of Section 12 would not apply to him. In support of his submis-sion he placed reliance on J.J Pancholi v. Sridharjee, AIR 1984 Alld. 130, wherein it was held that a tenant after termination of his tenancy becomes “tenant at sufferance” and that a “tenant at sufferance” is no better than a trespasser. In my opinion the argument raised by the learned counsel is wholly misconceived. Firstly, even in the authority cited by him it has been held that a tenant after termination of his tenancy becomes a “tenant at sufferance”. It is a different matter that in law his position is not better than a trespasser, nevertheless it cannot be said that merely by serving a notice under Section 106 T.P Act a tenant will cease to be a tenant. In fact after termination of tenancy a tenant becomes a statutory tenant because he is in occupation of the building under a contract of tenancy though the contract has been terminated. There are several statutes where the word “tenant” is used for such persons whose tenancy has been terminated by service of notice under Section 106 T.P Act. Sub-section “(2) of Section 20 of the Act provides that a suit for eviction of a tenant from a building after the determination of his tenancy may be instituted. Section 7(xi)(cc) of the Court Fees Act provides for suit between landlord and tenant for recovery of immovable property after determination of tenancy. Similarly Schedule II to Article 34 of Provincial Small Cause Courts Act also provides suit for eviction of a lessee from a building after determination of his lease. Therefore, the word “tenant” in Section 12 of the Act would include a person whose tenancy has been determined by the landlord like a statutory tenant. A similar question had arisen with regard, to Section 21 of Act, which provides for release of building under occupation of the tenant, in Sri Dinesh Chandra Misra v. II Addl. District Judge, 1980 ARC 116, where it was held as follows:—

“Considering the Scheme of Act, it seems that mere termination of tenancy by a notice under Section 106 of the Transfer of Property Act where the tenant continues to enjoy the protection of the Act against eviction under the Provisions of the Act, does not end his status of a tenant except in a formal way and the word ‘tenant’ in Section 21 must be interpreted as to include a person whose tenancy had been terminated but who was continuing as a tenant.”

29. Therefore, even though the tenancy of Syed Riza Ahmad Jafri had been terminated by service of notice by the landlord, his position was that of a tenant within the meaning of Section 12 of the Act.

30. In the end learned counsel for the petitioners contended that the landlords had already filed suit no. 107 of 1988 for eviction of the petitioners from the house in dispute and as such they cannot take recourse to another proceeding for getting them evicted by obtaining an order of deemed vacancy from the Rent Control and Eviction Officer. It may be pointed out that the proceedings regarding declaration of vacancy have not been initiated by the landlord but were initiated on the basis of allotment applications moved by third parties, namely Sri Prem Kant and Smt. Saroj Nigam, wife of K.C Nigam, respondent no. 2 to the petition. The Rent Control and Eviction Officer got the building inspected by the Rent Control Inspector and after the report of the Inspector he issued notice to the sitting tenant and the landlords. The landlords then appeared in pursuance of the notice and filed objection and adduced evidence. It cannot, therefore, be said that the pro-ceedings for declaration of vacancy have been initiated at the instance of the landlords. Secondly, it may be noticed that the provisions of Section 12 show that a deemed vacancy of a building occurs automatically on the happening of a certain even without any action being initiated by the land-lord. When a tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a building in the same city, he shall be deemed to have ceased to occupy the building under his tenancy. Even if a landlord gives consent to such a tenant to continue in occupation of his building it will make no difference and deemed vacancy would occur. This happens by operation of law not on account of any steps taken by the land-lord but on account of certain act done by the tenant or a member of his family. Even if the landlord wants to save such a tenant he cannot do so and the law would take its own course, namely, that the building would be deemed to be vacant. The District Magistrate will then get the jurisdiction to allot the building to any other person under Section 16 of the Act. As observed earlier the object of the Act is to prevent abuse of the accommodation and to make available as many accommodations as possible under the control of Rent Control authorities so that they may be allotted to needy persons. Therefore, it cannot be said that the present proceedings have been initiated at the instance of the landlord. That apart, there is no prohibition in the Act that if a landlord has filed a suit for eviction of a tenant on one of the grounds enumerated in Section 20 of the Act, the building under tenancy cannot be deemed to be vacant under Section 12 of the Act or that the landlord cannot participate in an inquiry held for the purpose of deter-mining whether the building should be deemed to be vacant. In view of the discussion made above there is ho merit in this writ petition. It is accordingly dismissed without any order as to costs. The stay order is vacated.

31. Petition dismissed.

Syed Mazahar Mustafa... v. Rent Control And Evi...