CHANDRIKA PRASAD Vs. A.C.M., KANPUR

JUDGEMENT

(1.) TENANT has filed this writ petition for quashing of the order of the Rent Control and Eviction Officer, Kanpur dated 26th March, 1997 declaring vacancy of the accommodation in question under Section 12(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).

(2.) LEARNED Counsel for the parties stated that the counter and rejoinder affidavits have been exchanged and, therefore, instead of admitting this petition, it may be disposed of on merit at the stage of admission itself. Accordingly, with the consent of the parties, the petition was heard on merit. Learned Counsel for the parties also filed their written submissions.

(3.) SHRI S.N. Verma, learned Senior Counsel appearing for the tenant contended, that the wife of the tenant who has been divorced by him is living separately along with their children and has no concern or connection with the tenant. It is also contended that the wife and the children are neither dependent on the tenant nor the tenant has any concern or connection with them and, therefore, in view of the legal fiction created by Explanation (b) of sub- section (3) of Section 12 of the Act, they cannot be included in the family of the tenant. It is also argued that respondent No. 1 has not given any specific finding to the effect that the wife of the tenant and children are residing with the tenant and not separately. Hence in the absence of such a finding, the impugned order vitiates and cannot be sustained. Reliance has been placed on a Division Bench judgment of this court rendered in the case of Shrinath Tandon v. Rent Control and Eviction Officer and others, reported in 1979 ARC 451, and also on a Single Judge judgment of this Court in the case of Somnath Seth v. IInd Additional District Judge, Rampur and others, reported in 1981 ARC 82.