RAM DULAREY Vs. ADDL DISTRICT JUDGE

JUDGEMENT

(1.) THESE three connected writ petitions arise from the judgment of the Additional District Judge, Kanpur dated 4-10- 1977. By the said judgment, he dismissed the appeal filed by the petitioner against the order of the Prescribed Authority dated 6-8-1976.

(2.) BABU Ram Pathak, who was the owner of the house in dispute, filed an application under Section 2i of the U. P. Act No. 13 of 1972 against the petitioner for release of the premises, which was in his occupation as a tenant. In the application, the landlord set up his need. He alleged inter alia that as the landlord of premises No. 127/115 in which he was living had served a notice calling upon him to vacate the premises, he required the house in occupation of the petitioner for his own purposes. The application was contested by the tenant. He denied that the need of the landlord was genuine and bona fide.

(3.) THE ground on which the appeal of the tenant was dismissed, was patently erroneous. Section 12 provides for a deemed vacancy of a building in certain cases. THE cases under which premises would be deemed to be vacant are mentioned in sub-sections (1), (2), (3-A) and (3-B) of the Act. Subsection (4) of Section 12 thereafter provides "any building or part of which a landlord or a tenant ceased to occupy within the meaning of sub-section (1), sub-section (2), sub-section (3), sub-section (3-A) or sub-section (3-B) for the purpose of this chapter, be deemed to be vacant." Section 12 creates a legal fiction. It is settled law that a legal fiction has to be strictly construed and cannot be applied to a situation to which it has not been made applicable by the legislature. A court would not be justified in giving Section 12 a larger operation than what can be plainly seen to have been given by the legislature. Subsection (4) of Section 12 shows that only for the purposes of the provisions made in Chapter III in which Section 12 is found that a vacancy would be deemed to have occurred provided, of course, that one of the contingencies mentioned in the said provision had taken place. Section 21 under which the landlord filed the application is to be found in Chapter IV of the Act. Deemed vacancy mentioned in Section 12 (4) cannot be taken into account for the purposes of Chapter IV of the Act. An application under Section 21 can succeed only if the landlord has established that he bona fide requires the building either in its existing form or after demolition or new construction. It can also be allowed if the requirement of clause (b) of subsection (1) of Section 21 has been proved.