Satish Chandra, C.J.
1. Finding himself unable to agree with the decision in Deep Chandra Pant v. III Addl. District Judge, Nainital (1978 All Rent Cas 199), a learned single Judge referred 'this question' (without framing the question) and the case for decision by a larger Bench. That is how the matter has come before this Full Bench.
2. Deep Chandra's case interpreted Sub-section (3-A) of Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called the 'Rent Act'). Subsection (3-A) of Section 12 of the Rent Act provided for the occurrence of vacancy when a Government servant is transferred. Sub-section (3-A) was added to the Act by the Amending Act No. 28 of 1976 with effect from July 5, 1976. Before the introduction of Sub-sec. (3-A) Section 12 of Rent Act provided for deemed vacancy of buildings in certain cases. A residential building was deemed to be vacant, i. e., a landlord or tenant of a building shall be deemed to have ceased to occupy a building, if he as well as the members of his family have taken up residence, not being temporary residence, elsewhere, vide clause (c) of subsection (i). Sub-section (3) of Section 12 provided for another instance of vacancy of a residential building. Under it, 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. The effect of such deemed vacancy is that it is open for allotment to any other person as tenant or liable to be released in favour of the landlord.
3. Under clause (c) of Sub-section (1) vacancy is deemed to arise when the tenant as well as members of his family take up residence elsewhere. This clause did not apply where either the tenant Or members of his family continue to reside in the building under tenancy. It happened that government servants on being transferred from one place to another, continued to retain their family members in the building under tenancy though they shifted their own residence to the place where they have been transferred. Such a situation was not covered by clause (c) of Sub-section (1). To remedy this situation the legislature added Sub-section (3-A) to Section 12. It provided:--
'(3-A). If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town area to which he has been so transferred whichever is later.'
4. This provision applies where (a) a person is a tenant of residential building, (b) the tenant holds a transferable post in any Government or local authority or a public sector corporation or under any other employer, (c) he has been transferred to some other city, municipality, notified area or town area, then such tenant is deemed to cease to occupy such building, with effect from
(a) thirtieth day of June following the date of transfer, or
(b) from the date of allotment to him of any residential accommodation either under the Act or any official accommodation by the employer, whichever is later.
5. This provision came up for consideration in Deep Chandra's case (1978 All Rent Cas 199). The question was whether vacancy will be deemed to have arisen even if no accommodation has been allotted. In that case I observed:--
'It has been submitted that there was no evidence that the petitioner had been allotted any accommodation either under the Rent Control Act or a Government accommodation at Almora. It is not necessary that the transferred employee should be allotted any accommodation before Sub-section (3-A) can operate. The order of transfer itself brings in Section 12 (3-A). It operates from the thirtieth day of June following the date of such transfer. The alternative, namely the allotment of any residential accommodation is in addition to the order of transfer. If a residential accommodation is allotted subsequent to June 30th following the date of the transfer order, then the transferred employee gets a further benefit inasmuch as the vacancy will be deemed to have occurred on the date of allotment of the residential accommodation if it happens to be after the thirtieth day of June following the date of transfer. The allotment of residential accommodation is not a condition precedent to the applicability of Sub-section (3-A).'
6. On further reflection, I feel that the view expressed in Deep Chandra's case (1978 All Rent Cas 199) was not quite correct.
7. The transfer order is the beginning of sequence of events which ultimately culminate in the creation of a vacancy. The other event on which emphasis has been laid by the legislature is the occurrence of thirtieth day of June after the transfer order or allotment to him of any residential accommodation. Of these two events, the one which occurs later, gives rise to the fictional creation of vacancy.
8. After the order of transfer, the tenant should have been allotted a residential accommodation. If this event has happened the vacancy will come into existence with effect from the thirtieth day of June following both the date of transfer as well as the date of allotment of the residential accommodation.
9. If till thirtieth June following the date of transfer no residential accommodation is allotted or provided by the employer the vacancy will not be deemed to have arisen notwithstanding that the tenant may have been able to obtain some accommodation for his own residence privately.
10 If a tenant on being transferred takes up residence in the place to which he has been transferred along with members of his family his case may be covered by clause (c) of Sub-section (1) and the vacancy may arise. In that case recourse may not be necessary to subsection (3-A).
11. But, Sub-section (3-A) will apply if a residential accommodation has been allotted or provided and thirtieth June following the date of order of transfer or] from the date of the allotment has also gone by. If the three events, namely, a transfer order, an alloment order (or provision by the employer) and the thirtieth June following them have occurred, the tenant will be deemed to have ceased to occupy his tenanted building, no matter whether he or any member of his family continue to reside in it. But a tenant covered by Sub-section (3-A) of Section 12 has been given the locus paenitentiae to continue to keep both the accommodations till the following thirtieth June even if a residential accommodation has been allotted or provided to him prior to thirtieth June.
12. It is common knowledge that bulk of transfers of Government servants, etc. take place annually. The annual transfer usually takes place in the months of May and June so that the education of the children may not suffer because the normal educational session ends in June. Keeping in view the general situation that after transfer it takes some months before the person is able to get a residential accommodation allotted or provided to him by the employer, the legislature appears to have thought it proper to allow sufficient time to such a tenant. That is why it appears that the latter of the two events, namely, the allotment or the occurrence of thirtieth June has been specifically mentioned by using the phrase 'whichever is later' for the accrual of the fictional vacancy.
13. In my opinion, Sub-section (3-A) will cause a vacancy to arise only if both the events, namely, the occurrence of thirtieth June as well as the allotment or provision by the employer of a residential accommodation have happened after the date of the transfer order. Deep Chandra's case (1978 All Rent Cas 199) was not correctly decided.
14. On facts, the position is that the petitioner K. C. Jain was a landlord of the house situate in Mathura. Respondent Karan Singh was an employee in the Roadways of the Government. He was allotted this house in 1970. He occupied it as a tenant. In December, 1976, he was transferred to Meerut. On July 1, 1977, the landlord applied for release of the house at Mathura. The respondent-tenant objected. He pleaded that he has not been allotted any residential accommodation at Meerut nor have his employers provided him any residential accommodation at Meerut, his family members were still residing at Mathura. The Rent Control Officer upheld the objection and held that the house at Mathura cannot be deemed to have fallen vacant. The landlord's application was dismissed. This finding and order were confirmed in revision by the District Judge. Aggrieved, the landlord has come to this Court under Article 226 of the Constitution.
15. On behalf of the landlord, reliance was placed upon Deep Chandra's case, 1978 All Rent Cas 199. As already seen, that decision did not lay down the correct law. I hence find no merit in the writ petition which is accordingly dismissed with costs.
K.N. Seth, J.
K.C. Agarwal, J.
I also agree.