S.D Agarwala, J.:— This is a petition under Article 226 of the Constitution of India arising out of proceedings under the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).

2. The property in dispute is house No. 209-D, Arvindpuri, Westend Road, Tanki Mohalla, Meerut Cantoment Originally, one Smt. Bhagwati Devi, widow of Sri Jiya Lal Gupta, and Balwant Rai Shastri were the owners and landlords of the said property. On 10th January, 1983, the property in dispute was sold to the petitioner Smt. Shashi Govil, wife of Rameshwar Nath Govil and, consequently, she became the landlady of the premises in dispute. The original tenant of the property was one Niranjan Lal Jain. He died in March, 1977, leaving behind three sons, namely, V.K Jain, S.K Jain and J.K Jain. Since J.K Jain was admittedly, not living with his father, tenancy, rights were inherited by V.K Jain alone. They became tenants in common of the property in dispute and are respondent nos. 3 and 4 respectively to this petition. In the year 1979, S.K Jain was transferred to the Delhi Branch of the State Bank of India and was also provided with an official accommodation at Greater Kailash, V.K Jain was transferred on 9th March, 1983, to the Narendra Nagar Branch of the State Bank of India, district Pauri Garhwal. On 8th June, 1983, Y.C Agarwal applied for allotment of the house in dispute on the ground that the property should be deemed vacant. On this application of Y.C Agarwal, the Rent Control Inspector was instructed to submit a report. The Rent Control Inspector submitted his report on 2nd August, 1983, stating that the property be deemed vacant. On 24th August, 1983, a vacancy was notified by the Rent Control and Eviction Officer. On 24th August, 1983, itself, the landlady filed an application for release under section 16(1)(b) of the Act on the ground that she needed the accommodation for her personal use. This application was allotted by the Delegated Authority/District Supply Officer, Meerut, by his order dated 29th August, 1984, and the property was released in favour of the petitioner. He further found that the need of the landlady was bona fide and genuine. Aggrieved by the said decision, respondent nos. 3, 4, and 5 filed a revision in the court of the District Judge, Meerut, under Section 18 of the Act. The District Judge, Meerut, by his order dated 18th December, 1984, allowed the revision, set aside the order of Delegated Authority/District Supply officer, Meerut, releasing the accommodation in dispute in favour of the petitioner. It is this order dated 18th December, 1984, which has been impugned in the present petition.

3. I have heard the learned counsel for the parties.

4. Learned counsel for the petitioner has raised four contentions before me. His first contention is that the tenant respondents, in fact, own six big independent residential flats consisting of several rooms in the city of Meerut itself. Two flats fell vacant and, consequently, the property should be deemed to be vacant under the provisions of Section 12(3) of the Act. The second submission is that S.K Jain having been transferred to Delhi and he having started living in Greater Kailash, the property would be deemed to be vacant under section 12(1)(c) read with section 12(3-A) of the Act. The third submission is that as far as V.K Jain is concerned he having been transferred to Narendra Nagar and he as well as the members of his family taken up residence in Narendra Nagar, the property should be deemed to be vacant under section 12(1)(c) of the Act and the view to the contrary, taken by the revisional authority is manifestly erroneous. The fourth submission made by the learned counsel is that the revisional authority has been illegally and with material irregularity in determining the question of vacancy on the premise that the question of vacancy has to be determined when an application comes for allotment or the landlord applies for release of the accommodation in his favour. Since the revision has been considered on a wrong premises, the entire judgment is vitiated in law.

5. I will consider the last submission first. Section 12 of the Act provides the various, circumstances when the building shall be deemed to be vacant. The property would be deemed to be vacant when one of the circumstances laid down in section 12 of the Act has occurred. As an example, it may be stated that the building would be deemed vacant if the tenant has substantially removed his effects therefrom or if it is allowed to be occupied by any other person, who is not a member of the family or in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. Again, it may be a case where in the case of residential building if a tenant or the members of his family builds or otherwise acquire in a vacant state for residential purpose in the same city, he would be deemed to have ceased to occupy the said building under tenancy. Similarity, under section 12(3-A) of the Act, if a tenant of a residential building holding a transferable post is transferred and, on transfer, he is provided with an official residence, he would be deemed to have ceased to occupy the building under tenancy. All these circumstances indicated that it is on the happening of an event contemplated by Section 12 of the Act, that the property would be deemed to be vacant or the tenant would be deemed to have ceased to occupy the building. On a reading of section 12 of the Act, it cannot be said that the relevant date for determining the question of deemed vacancy is the date on which an application for allotment is made or a release application has been filed. If that be so, the very purpose of the Act would be completely defeated. As an example, it may be pointed out that if a tenant has substantially removed his effects on a particular day and if the property is not deemed to be vacant on that day and is allowed to be occupied by any other person then it will be possible for him to defeat the very purpose of the Act. This was not instead. Similarly, after acquiring a property in a vacant state, the same can thereafter be permitted to be occupied by another person and it cannot be deemed to be vacant. The above circumstances clearly establish the legislative intent that in filing of the application for allotment or an application for release is not the relevant date for determining the question of vacancy.

6. In Surendra Prakash Goel v. The Ist Addl. District Judge, Muzajfarnagar,1 the petitioner had specifically urged that the relevant point of time for applying section 12(3) is the date on which the building is considered for allotment. This argument was specifically repelled by this Court in the said case. I respectfully agree with the ratio of that case. In view of the above. I am clearly of the opinion that the question as to whether the property should be deemed to be vacant has not to be determined on the basis of the date of making of the application for allotment or release, but has to be determined on the occurrence of the circumstances on the basis of which the property would be deemed vacant under section 12 of the Act. The view taken to the contrary by the revisional authority, consequently, in my opinion, is manifestly erroneous and the entire order passed on this basis is vitiated in law.

7. Now, I will consider the submissions made by the learned counsel for the petitioner on merits.

8. In so far as the first contention of the learned counsel for the petitioner is concerned, it is necessary to state a few facts in relation to this submission. Annexure ‘8’ to the petition is a notice given by Smt. Bhagwati Devi and Balwant Rai Shastri, the erstwhile landlords, on 4th December, 1978, wherein it was categorically stated in paragraph 4 that the respondent tenants had constructed their own house no. 270-A, Rajsan Bridge Street, Meerut Cantt. It is not disputed that it is situate in Tandale Mohalla. It is also not disputed that it is a big house consisting of several rooms comprising six flats. In reply to this notice dated 4th December, 1978, which has been attached as Annexure ‘9’ to this petition, the factum of construction of the six flats has not been disputed. It was only disputed that the erstwhile landlords not require the accommodation for their personal use.

9. In the impugned judgment of the revisional authority, it has been found that two flats fell vacant in July, 1980. One flat fell vacant on 4th July and the other fell vacant on 31st July 1980. The first flat remained in possession of the first tenant from 4th July to 3rd September, 1980, and the second flat remained in possession of the respondents from 31st July, to September, 1980. It has also been found by the revisional authority that both these flats were got allotted to two other tenants after nomination was made by the respondent tenants. The question which comes up for decision is whether in the special circumstances, mentioned above, the tenanted property in dispute would be deemed to be vacant after the two flats belonging to the tenants became vacant and they got possession of the same.

10. Section 12(3) of the Act clearly provides that in the case of a residential building, if the tenant or any members of his family builds or otherwise acquired in a vacant state or gets vacated a residential building in the same city, in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Factually, it is not disputed that the tenants got possession in a vacant state of two flats in the same city, which admittedly, belonged to them. The only submission made on behalf of the respondents is chat these flats came under the jurisdiction of the Rent Control and eviction Officer and unless these flats were released in their favour, it could not be held that the respondents had acquired the flats in a vacant state.

11. In a case where after the allotable property has fallen vacant and a landlord takes steps to get the property released and if such a property is not released, it could be said that the tenant did not acquire an allotable property in a vacant state, but where the tenant gets possession of an allotable property and remained in possession of the same and did not apply for release of the said flats for their own need instead got it allotted to the persons nominated by him, in my opinion, in such a case, it cannot be said that they did not acquire the allotable property in a vacant state. Each case would depend upon the facts. In the instant case, the conduct of the respondents in giving over possession of the property to the tenants nominated by them without applying for release of the property clearly shows that they did acquire the flats in a vacant state and would, therefore, clearly come within the provisions of section 12(3) of the Act. The first submission, therefore, made by the learned Counsel for the petitioner, in my opinion, is well-founded. Even if this submission is not accepted then too, the petitioner is liable to succeed in case the second and the third submission raised on behalf of the petitioner are accepted.

12. In regard to the second submission of the learned Counsel, it cannot be disputed, in law, that V.K Jain and S.K Jain are the tenants in Common after the death of the original tenant Niranjan Lal Jain. The mere fact that the property is deemed to be vacant impugned to one tenant in common cannot make the entire building to be deemed to be vacant because the other tenants in common will have a right to occupy the property, but if in regard to both the tenants-in-common, at one point of time, the entire building would be deemed to be vacant then in such a case, it would fall under the provisions of section 12 of the Act and the building would be deemed to be vacant.

13. S.K Jain was transferred to the Delhi Branch of the State Bank of India in the year 1979. He was also provided with an official accommodation in Greater Kailash. He shifted his entire family after his transfer to Delhi. These allegations have not been specifically decided in the counter-affidavit. The conditions required by section 12(1)(c) and section 12(3-A) are fully satisfied and, as such, the property would be deemed to be vacant in 1979. S.K Jain, thereafter, was again transferred to Meerut in August, 1983. The submission, consequently, made is that though he may have been transferred in 1979, but since he came back by re-transfer to Meerut in August, 1983, the property cannot be deemed to be vacant in the eye of law. The petitioner's submission, however, is that once the property was deemed to be vacant, S.K Jain could not by re-transfer again occupy the said property unless a allotment order was passed in his favour.

14. In Smt. B. Jain v. State of U.P . 1980 A.R.C 396., Hon'ble K.C Agarwal, J. had an occasion to consider this question. It was held by him that once a vacancy would be deemed to have occurred under section 12(3-A) of the Act on account of the mere order of re-transfer, the effect of such vacancy would not be washed off, I respectfully agree with this decision.

15. Even otherwise, in view of the provisions contained in the Act itself, re-transfer would not affect the vacancy of a building. Section 13 of the Act specifically provides that where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity whatsoever on his behalf or otherwise than under an order of allotment or release under section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions of Section 31, be deemed to be an unauthorised occupant of such building or part thereof. In the circumstances, when once under Section 12(3-A) of the Act, the tenant had ceased to occupy the building under tenancy, he could not re-occupy the same on re-transfer after many years without an allotment order having been passed in his favour. In the circumstances, so far as the second submission of the learned counsel is concerned, in my opinion, it is well founded. S.K Jain would be deemed to have occupied the building with effect from 1979 onwards.

16. In regard to the third submission made by the learned counsel, in paragraph 9 of the petition, it has been stated that V.K Jain was transferred to the Narendra Nagar Branch of the State Bank of India district Pauri Garhwal, on 9th March, 1983. He has also shifted his family to Narendra Nagar, District Pauri Garhwal. In the counter affidavit, in paragraph 10, it has been admitted that V.K Jain was transferred to Narendra Nagar in March, 1983, and his family continued to reside in the accommodation till August, 1983, V.K Jain, also did not reside at Meerut. Section 12(1)(c) of the Act provides that the case of a residential building, if a tenant as well as the members of his family have taken up residence the property would be deemed to be vacant. Once V.K Jain was transferred to Narendra Nagar and his family had already shifted there, it cannot be said that the residence at Narendra Nagar was a temporary residence. The property would, therefore, clearly be deemed to be vacant under the provisions of Section 12(1)(c) of the Act. In the circumstances, the third submission of the learned counsel is well founded.

17. V.K Jain and S.K Jain, as already observed above, are tenants in common. The property would be deemed to be vacant so far as S.K Jain is concerned since 1979. So far as V.K Jain is concerned the property would be deemed to be vacant at least after August, 1983. The release order, in the instant case was passed in favour of the petitioner on 29th August, 1984. It cannot, therefore, be said that the release order passed in favour of the petitioner was not valid as the property was not vacant in the eye of law. The view, to the contrary, taken by the revisional court, in my opinion, is manifestly erroneous. In the end, I am constrained to observe that it is one of those cases where the tenant wants to take undue advantage of the provisions of the Act. Admittedly, the tenants have constructed six big flats in the city of Meerut and they have let out these flats on very high rent to other tenants. They are holding the property indispute because they have to pay a very paltry amount of rent. This was not the purpose of the Act. If one of the tenants had constructed six big residential flats in the same city of which they had possession, the tenanted property would be deemed to be vacant and they should have vacated the property, but they have not done so. Instead they have remained in possession of the property on one technical reason or the other.

18. In the result, the petition is allowed. The order dated 18th December, 1984, is quashed and that of the delegated authority/District Supply Officer dated 29th August, 1984, is restored. In the circumstances of the case, the parties are directed to bear their own costs.