JUDGMENT S.U. Khan, J.
1. This writ petition has been filed by tenant. It arises, out of allotment proceedings initiated by Pawan Kumar Singh, Respondent No. 2 under Section 12 and 16 of UP." Act No. 13 of 1972 in the form of case No. 47 of 2001 on the file of R.C. and E.O./Addl. City Magistrate (II), Kanpur Nagar. Respondent No. 1 Ravendra Nath Garg is landlord. Respondent No. 3 Ram Chandra was another applicant for allotment. The number of property in dispute is 133/131, M- Block, Kidwai Nagar, Kanpur Nagar. R.C. and E.O. by order dated 27.6.2002 declared vacancy of the premises in dispute and thereafter by order dated 15.7.2002 it was released in favour of landlord respondent No. 1. The release application was registered as case No. 11 of 2001. Against orders dated 15.7.2002 releasing the premises in dispute in favor of the landlord and order dated 27.6.2002 declaring vacancy revision was filed by the tenant/petitioner before District Judge under Section 18 of the Act being Rent Revision No. 34 of 2002 which was dismissed on 23.10.2003 hence this writ petition.
2. Landlord filed counter objections before R.C. and E.O. copy of which is Annexure-3 to the writ petition. In Paras 2, 7 and 9 of the said objection it was stated that property in dispute was let out only for commercial purpose i.e. for being used as godown and later on the tenant illegally started residing therein hence it was legally vacant, In Para-8 it was stated that tenant was initially residing at 149-HIG, Ratan Lal Nagar, Kanpur Nagar. R.C. and E.O. in its order declaring vacancy also held that property in dispute was let out for being used as godown and tenant had another residential house at his disposal being 149-HIG, Ratan Lal Nagar, Kanpur Nagar where he was actually residing and as tenant had recently shifted the godown completely in an other adjoining premises after purchasing the same and started using the building in dispute for residential purpose hence it was deemed vacant. R.C. and E.O. also held that tenant had several other residential accommodations in Kanpur Nagar.
3. The accommodation in dispute was initially let out to Ram Lal father of petitioner and after his death petitioner inherited the tenancy.
4. It was asserted by the landlord that the tent business in the name and style of Bharat Kiraya Bhandar for which accommodation in dispute was taken on rent had been shifted by the tenant in the adjoining accommodation bearing No. 133/130 and thereafter tenant started using the accommodation in dispute only for residential purpose in addition to his own residential house No. 149-HIG, Ratan Lal Nagar.
5. The only question involved in this writ petition is as to whether on the facts found by the Courts below deemed vacancy under Section 12 of the Act has occurred or not.
6. In case of residential building if tenant as well as members of his family take up permanent residence else where then vacancy occurs under Section 12 (1) (c) of the Act. Similarly in the case of residential building, if the tenant or any members of his family builds or otherwise acquires in a vacant state a residential building in the same city then vacancy occurs under Section 12 (3). However, there is not corresponding provision applicable to non residential building. If a tenant of a non residential building shifts his business to another accommodation or acquires another commercial accommodation, still no vacancy occurs. Change of user from commercial to residential may be a ground of ejectment under Section 20 (2) (d) of the Act. However it does not result in vacancy.
7. Even in a residential building vacancy occurs under Section 12 (3) of the Act only if after the start of tenancy tenant acquires or builds another house in the same city. If prior to the start of tenancy tenant was having some house available to him provision of 12 (3) of the Act will not be applicable. Even if for the sake of argument it is assumed that when tenant started using the building in dispute exclusively for residential purpose, it became a residential building, then vacancy may occur if after such use tenant permanently shifts his residence or acquires or builds a house in the same city.
8. Accordingly finding of deemed vacancy recorded by Courts below is not sustainable in law.
9. Learned Counsel for the petitioner has cited two authorities reported in Smt. Kanti Khare v. A.D.J. Allahabad, 1982(1) ARC 594 and P.C. Rastogi v. A.D.J., 2001 (2) ARC 504 (S.C.). In the first authority the question was as to whether building was residential or commercial and it was held that it must be decided on the basis of predominant use of the same. In the instant case it is admitted by the landlord that initially building was let out for being used as godown only, hence the said authority is not applicable to the facts of the instant case. In the second authority of the Supreme Court a residential building was declared vacant on the ground that the tenant had built a room. The said authority is also, therefore, not applicable to the facts of the instant case.
10. Accordingly writ petition is allowed. All the three orders i.e. order declaring vacancy, order releasing the building in dispute in favour of the landlord and revisional Court's order are set aside.
11. In Khurshida v. A.D.J., 2004 (2) ARC 64, I have held that while granting relief to tenant in the writ petition, writ Court is empowered to enhance the rent to reasonable extent. Property in dispute consists of four rooms and is situate in Kanpur Nagar which is most important city of U.P., and the rent is only Rs. 250/- per month which is quite inadequate. Accordingly it is directed that w.e.f. March, 2005 tenant must pay rent of Rs. 1,950/- per month to the landlord.
12. The amount of Rs. 10,000/- deposited by the tenant as condition attached with stay order dated 3.11.2003 shall be divided in equal share in between landlord and tenant. Rs. 5,000/- must be permitted to be withdrawn by the tenant and Rs. 5,000/- shall be paid to the landlord.