Madon, J. - (1.) The Appellants in each of the above two Appeals by Special Leave granted by this Court filed in the High Court of Allahabad a writ petition under Art. 226 of the Constitution challenging an order notifying a deemed vacancy under sub-sec. (2) of S. 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972). This Act will hereinafter be referred to in short as "the Act". The High Court dismissed both these petitions holding that they were premature. In coming to this conclusion the High Court relied upon a judgment of a two-Judge Bench of this Court in Trilok Singh and Co. v. District Magistrate, Lucknow, (1976) 3 SCR 942. The said decision of this Court was given prior to the amendment of the Act by the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 (U. P. Act No. 28 of 1976) (hereinafter in short referred to as "the 1976 Amendment Act"). The 1976 Amendment Act came into force on July 5, 1976.
(2.) It is unnecessary for the purpose of deciding these Appeals to set out the facts in great detail. The subject-matter of Civil Appeal No. 8552 of 1983 is a shop bearing Municipal No. 24/34, situate at Mahatma Gandhi Marg, Civil Lines Market, Allahabad. According to the Appellants in this Appeal, the premises were let out to their father, Sheobux Roy, in 1937 and the Appellants' father commenced carrying on business in the said premises in the name and style of Messrs B. N. Rama and Co. The Appellants' father died on or about February 3, 1941, and according to these Appellants the tenancy was inherited by them being his sons. Thereafter, there was a partition amongst the Appellants but in spite of it all the three brothers continued to carry on their business separately in the same premises though under different names. While according to the Appellants the tenancy continued jointly with all of them, according to the contesting Respondents, who are the landlords, the tenancy rights belonged to the First Appellant, Ganpat Roy, alone, who is carrying on business in the said premises as Messrs B. N. Rama and Co. (Stores) and who paid the rent and used to recover rent from his other brothers in respect of the businesses carried on by them in the said premises.
(3.) Under S. 12(2) of the Act, a tenant of a non-residential building carrying on business in the said building is deemed to have ceased to occupy the premises on his admitting as a partner or a new partner a person who was not a member of his family. The definition of "family" given in cl. (g) of S. 3 of the Act does not include a son-in-law or a daughter-in-law. By a Deed of Partnership dated August 10, 1976, the First Appellant entered into a partnership with his son, Ramesh Roy, and his son-in-law, Swarup Kailash, to carry on business as authorized retail dealer of the Mafatlal Group of Mills under the firm name and style of Messrs B. N. Rama and Co. (Textiles). According to the Appellants, the said partnership is occupying less than one-seventh area of the said premises. Thereafter in 1979, the landlords filed a suit for eviction against the First Appellant on the ground that he had sublet the said premises to his son-in-law. For some reason not apparent on record, the First Appellant's defence in the suit was struck out. The First Appellant filed a revision application to the Allahabad High Court and further proceedings in that suit were stayed by an interim order. That suit was withdrawn sometime before the hearing of these Appeals. On or about March 19, 1981, one Ramesh Nath Kapoor and Radhey Shyam Kapoor, who are related to the landlords, filed an application for allotment of the said premises to them on the ground that there was a deemed vacancy under S. 12(2) of the Act in respect of the said premises. Thereupon the Rent Control and Eviction Officer got the said premises inspected by a Rent Control Inspector who made his report on May 23, 1981, to the effect that as the matter relating to the said premises was pending in the High Court and a stay order had been granted by the High Court, there was no need to take any action. It thereafter appears that in order to clarify the position with respect to tile stay order, the Rent Controller issued notices to the parties. The Appellants did not appear on the date fixed for hearing and the Rent Controller by his order dated August 13, 1981, held that there was a deemed vacancy in respect of the said premises and ordered such deemed vacancy to be notified and fixed the hearing of the application for allotment on September, 2, 1981. Thereafter a fresh inspection report was made on September 1, 1981, by the Rent Control Inspector to the effect that the requirements of the applicants for allotment of the said premises was genuine. It further appears that an application for release of the said premises was also made by the landlords. On Sept. 2, 1981, the Rent Controller fixed Sept. 11, 1981, for the hearing of the said application for allotment as also of the said application for release. On Sept. 11, 1981, the Appellants filed an application to set aside the said order directing notification of deemed vacancy and for permission to urge their objections and to contest the said application for release. By an order dated September 30, 1981, the Rent Controller set aside the order notifying the deemed vacancy but refused permission to the Appellants to contest the said application for release of the said premises on the ground that if it were held that there was no vacancy, the question of release would not arise and if it were held that there was a vacancy, the occupant would go out of the picture and thereafter the matter would lie between the District Magistrate and the landlord and that no other person could contest the release of the premises to the landlord according to a judgment of the Allahabad High Court. Thereafter, by his order dated November 11, 1981, the Rent Controller negatived the contentions of the Appellants and held that there was a deemed vacancy in respect of the said premises and ordered such vacancy to be notified. The Appellants thereupon filed the said writ petitions in the High Court which, as mentioned earlier, was dismissed During the pendency of this Appeal, further proceedings with respect to the release or allotment of the said premises have been stayed by this Court.;