BUDHMAL GUPTA Vs. VINOD GUPTA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India challenging the order of the Additional District Judge, Bijnor dated 16th August, 1977. The property in dispute is a house situate in the city of Bijnof. The petitioner is the tenant of the said accommodation. Respondent No. 1 and 2 are the landlords. Respondents No. 1 and 2 moved an application under Section 12 (3) read with Section 16 of the U. P. Act XIII of 1972 (hereinafter referred to as the Act), for is lease of the accommodation on the ground that it may be deemed as vacant under Section 12 (3) of the Act. The prescribed authority rejected the application on the ground of there being no vacancy as well as on the ground that the respondents No. 1 and 2 do not have bona fide need of the accommodation in dispute. Respondents No. 1 and 2 filed revision. The revision has been allowed by the order dated 16-8-1977 and the property has been released in favour of the respondents No. 1 and 2. This order dated 16th August, 1977 is the impugned order in the present petition. Learned counsel for the petitioner has urged that Section 12 (3) of the Act is prospective and not retrospective and as such unless the Court record' ed a finding that the property was acquired by the petitioner or any member of his family after 15th July, 1972, the property could not have been deemed vacant and as such, the release application should have been rejected. Section 12 (3) of the Act is to the following effect- "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 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 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. " There are three factors in the above sub-section (3) of Sec. 12 on the basis of which there could be deemed vacancy, viz. , if a tenant or any member of his family (a) builds (b) acquires in a vacant state (c) gets vacated a resi dential building in the same city, municipality, notified area or town area in which the building under tenancy is situate. The proviso makes it clear that when a case falls under category (a) it is retrospective and the property would be deemed vacant on 15-7-1973. In respect of categories (b) and (c) however, the sub-section is prospective as is clear from the words 'acquires' and 'gets vacated'. The instant case is sought to be brought in category (b) mentioned above and as such, before there could be deemed vacancy, there has to be an acquisition of property in a vacant state after 15-7-1972. The Revisional Court has not at all applied his mind on this question. There is no finding that the building was acquired by the petitioner or his wife after 15th July, 1972. There is also no finding that the said building was acquired by both the petitioner and his wife in a vacant state. There was essential jurisdictional facts necessary to be decided by the Revisional Court without which it could not release the property in favour of the respondent Nos. land 2 and declare it as deemed vacant under Section 12 (3) of the Act. The question as to whether there was a deemed vacancy or not it a question of jurisdiction and therefore, the necessary ingredients for deter-raining as to whether the property could be held to be deemed vacant under Section 12 (3) of the Act has to be decided by the Revisional Court. In the circumstances, it is appropriate that the matter be remanded to the said Court for decision afresh. In the result, I allow the petition and quash the order of the Additional District Judge dated 16-8-1977 and remand the case to the Revisional Court for decision afresh in accordance with law in the light of the observations made by me above. In the circumstances of the case, parties are directed to bear their own costs. .