JUDGMENT Anjani Kumar, J.
1. Petitioner, Smt. Shanti Devi, by means of present writ petition under Article 226 of the Constitution of India, challenges the order dated 22nd October, 2002, passed by the City Magistrate/Rent Control and Eviction Officer, copy whereof is annexed as Annexure-'IX' to the writ petition.
2. The brief facts of the present case are that Smt. Gomti Devi, respondent-landlord of the accommodation in question house No. 62/172A, Harbans Mohal, Kanpur Nagar filed an application on llth September, 2001 under Section 21(1) (b) of the U. P. Act No. XIII of 1972, (hereinafter referred to as 'the Act') to the effect that the accommodation in question is unauthorisedly occupied by the petitioner. On the aforesaid application, a report was sought for by the Rent Control and Eviction Officer from the Inspector concerned, who submitted his report and thereafter notices were issued to the parties to file their objections, if any. The petitioner's case, as is clear from the material on record, was that she is living along with her husband, who was tenant in the accommodation in question for past about 65 years. The petitioner further stated that her husband died in the year 1973 and that she has maintained her sons out of the money that has been left by her husband and that she is aged about 85 years and that landlady Smt. Gomti Devi is always threatening her and pressurising for vacation of the house in dispute, that in this connection a civil litigation is also going on in the civil court between the parties The petitioner stated that she has not vacated the accommodation in question and she is still living therein. It is also stated that Smt, Gomti Devi has purchased the building in dispute in the year 1985. After the death of her husband, the petitioner and her five sons inherited the tenancy and became the legal heirs of the original tenant under the provisions of the Act and it is incorrect to say that her sons have constructed houses. The correct facts are that her eldest son, who is a Government employee is permanently residing at Varanasi and her second son is a teacher in Government Inter College, Rampur and is residing at Rampur permanently. The third son has died in the year 1984 and his wife is residing with the petitioner. Her fourth son has no concern whatsoever with his mother since 1991 because of the differences between the tenant-petitioner and her daughter-in-law. The youngest son is also living separately since 1997. The petitioner further stated that she has no concern with two sons residing at Kanpur and she is living in the accommodation in dispute along with her widow, daughter-in-law, thus in the facts and circumstances stated there is no vacancy or deemed vacancy, as contemplated under Section 12(3) of the Act. The respondent-landlord filed an affidavit and according to this her case was that after the death of husband of petitioner, the petitioner and her five sons are residing in the accommodation in question and thereafter all the sons have already shifted to the houses built by them and the other sons are residing in the cities where they are employed. The documentary evidence has been filed by the respondent-landlady to the effect that two sons of the petitioner who have built their houses are also paying the electricity bills etc. from the respective house, where they are living. On the basis of the materials on record and the pleadings of the parties, the Rent Control and Eviction Officer by the order impugned in the present writ petition has declared the vacancy in the accommodation in question under Section 12(3) of the Act and directed the matter to proceed in accordance with law after advertising the vacancy.
3. The only point argued by learned Counsel appearing on behalf of the petitioner-tenant is that Section 12 (3), read with Explanation (a) and (b), which is reproduced below, clearly demonstrates that the view taken by the Rent Control and Eviction Officer cannot be sustained under law.
"12. Deemed vacancy of building in certain cases.
(1) ...
(2) ...
(3) 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.
Explanation.--For the purposes of this sub-section :
(a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee ;
(b) the expression "any member of family", in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant."
4. Learned Counsel appearing on behalf of the petitioner-tenant has relied upon a decision of the Apex Court in Mohd. Azeem v. District Judge, Aligarh and Ors., . In the judgment, referred to above, the Apex Court has interpreted the definition of the 'tenant' and the 'family members'. In paragraph 6, the Apex Court has held, which is reproduced below :
"6. As the definition of 'tenant' indicates, on a tenant's death his heirs as normally resided with him would also be tenants qua residential buildings. Therefore, the widow, all the three sons and unmarried daughter became tenants when the Act came into force notwithstanding the fact that Manzoor had died in 1969."
5. The Apex Court has further ruled in paragraphs 7, 8, 9 and 11, which are reproduced below :
"7. We may now revert to Section 12(3) of the Act. Admittedly we are concerned with a residential building. It is the case of the Prescribed Authority and there is no dispute about it, that Nairn has built a house in the same city some time in 1980. Naim's building a house and moving into it cannot wipe out the interest of the widow, other two sons, including the appellant, and the daughter, if in their own right they were tenants by satisfying the requirements of the definition. The words 'if the tenant or any member of his family' obviously mean, in the facts of the case Nairn relate to the widow, other two sons and the daughter of Manzoor. If everyone's interest was to be wiped out, Section 3 had to provide differently and instead of he shall be deemed to have ceased to occupy the building under his tenancy as occurring in Sub-section (3) reference would have been made to all the tenants.
8. The ratio of the Full Bench decision to which we shall presently advert and which has been relied upon by the Prescribed Authority and the learned District Judge, is bound to lead to situations which could never have been contemplated by the Legislature. For instance, if Nairn or Nadeem found it inconvenient to live with the other members of the family when Manzoor died and he moved into another house with a view to living separately and the fact of such a move on his part brought about cessation of tenancy and the house Manzoor lived in was deemed to have become vacant, the widow, the other sons and the daughter of Manzoor would immediately find themselves in a very helpless condition. Or for instance, if one of the sons got an employment in a Factory located within the same city and for convenience moved into a Factory quarter for residence, the same result would ensue to the miserable plight of the other members. Or consider the case of a divorced daughter of the tenant living with him, when she builds or acquires a separate premises with funds provided by her ex-husband. No sooner she moves into her house, the case of an expanding family. Several sons are born to them. The accommodation becomes insufficient and one or two of the sons move into a separate house to ease the situation. If in such premises, father's tenancy terminates and the house in which he and members of his family reside is deemed to have become vacant, the family would be visited with hardship knowing no bounds. Take the unhappy and miserable lot of a couple whose infirm son, suffering from a serious malady highly contagious, is shifted to an independent residence for exclusion. Would that too lead to termination of tenancy qua the main residential premises?
9. In an Act intended to stabilise letting, rent and eviction by regulation, the Legislature could not have evinced such intention. It is true that the legislative purpose behind Section 12 appears to be in keeping with the scheme of the Act making available as much accommodation as possible for allotment to needy persons. That being the purpose, the Legislature could not have intended to render persons rehabilitated in tenanted premises homeless, In our view, when the Act defines 'tenant' and 'family' reference to personal law is irrelevant and the concept of joint tenancy is foreign.
11. The Full Bench proceeded on the basis that the heirs became joint tenants and answered the main problem by saying that if any member of the family of such joint tenants built or acquired a house in vacant state the tenancy would be deemed to have ceased. In framing the questions for reference and in answering the referred questions, the definition of 'tenant' was lost sight of. All the heirs as normally reside with the deceased tenant in the building at the time of his death become tenants. The definition does not warrant, the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy. Each heir satisfying the further qualification in Section 3(a)(1) of the Act in his own right becomes a tenant and when we come to Section 12(3) of the Act, the words "the tenant or any member of his family" will refer to the heir who has become a tenant under the statutory definition and members of his family. 'Family' having been defined for convenience if we refer to the facts of the "present appeal qua Nairn, the definition would cover Naim's wife, his male lineal descendants, his mother and those who are covered by Clause (iii) in the definition of family. It would not by any stretching embrace the appellant or his brother Nadeem and the sister. The Full Bench in our view, fell into an error in working on the basis of joint tenancy running counter to the scheme under the Act. The conclusion reached by the Full Bench, in our view is, therefore, wholly unsustainable and we cannot extend our agreement to the conclusion that when one of members of the family built a house or moved into a vacant premises other than the tenanted premises in occupation, there was a deemed cessation of the tenancy and a deemed vacancy occurred of the tenanted premises."
6. Relying upon the aforesaid observations, learned Counsel appearing on behalf of the petitioner-tenant submitted that after the death of husband of petitioner, the petitioner and every sons has become the tenant and merely because two of the sons have employed in other city and shifted there and two sons have built their houses and have shifted there, will not attract the provisions of Section 12(3) of the Act, as held by the Rent Control and Eviction Officer, so far as the tenancy of Smt. Shanti Devi, the petitioner is concerned. Learned Counsel for the petitioner further relied upon the Explanation (b), referred to above, and submitted that the Rent Control and Eviction Officer has not recorded any finding that two sons, who are said to have been living in two different houses, have already shifted in the year 1991 and 1997, respectively, therefore they cannot be said to be normally residing with the tenant and there is no finding to this aspect of the matter by the Rent Control and Eviction Officer.
7. On the other hand, learned Counsel appearing on behalf of the respondent-landlord submitted that the Rent Control and Eviction Officer has dealt with the case of each sons of the tenant and since all the sons and the petitioner have jointly inherited the tenancy after the death of husband of petitioner, therefore the building or house and shifting therein by the two sons, which is admitted, will attract the provisions of Section 12(3) of the Act.
8. I have given my considered thoughts upon the arguments advanced on behalf of both the sides. In my opinion, in view of the decision of the Apex Court in the case of Mohd. Azeem (supra), the view taken by the Rent Control and Eviction Officer, cannot be sustained.
9. In this view of the matter, the writ petition succeeds and is allowed. The order dated 22nd October, 2002, passed by the Rent Control and Eviction Officer declaring the vacancy deserves to be quashed and is hereby quashed. The matter will go back to the Rent Control and Eviction Officer, who is directed to decide the matter afresh in the light of the observations made in this judgment. Since the matter is old, the Rent Control and Eviction Officer is directed to decide the matter within a period of three months from the date of production of a certified copy of this order before him.