- (1.) O. P. Garg, J. The dispute relates to a shop and other appendages in premises No. 51/49 (New No. 51/88) Nayagang, Kanpur. The petitioner Mahendra Kumar Rastogi moved an application for allotment of the said shop on the ground that a deemed vacancy has arisen under Section 12 (2) of the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (U. P. Act No. XIII of 1972) (hereinafter referred to as 'the Act'), on account of constitution of new partnership firm in which Smt. Padmawati and Smt. Sadhna daughter-in-laws of original partner of Mathura Dass have been admitted as partners and some other partners have been substituted. By order dated 28-9-1998 the Rent Control and Eviction Officer refused to declare the vacancy. The petitioner moved an application for review which was registered as Case No. 73 of 1998. With a view to expedite the hearing of the review petition, the petitioner approached this Court by filing Writ Petition No. 33870 of 1998 which was disposed of by this Court on 24-10-1998 with the observation that Rent Control and Eviction Officer shall decide the review application with expedition according to law preferably within a period of six weeks from the date a certified copy of the order was produced before him. By order dated 1-11-1999 the review petition has been dismissed and the order of non-declaration of vacancy dated 28-9-1998 has been maintained.
(2.) BY means of the present petition under Article 226 of the Constitution of India the petitioner who is applicant for allotment has challenged the order dated 28-9-1998 and 1-11-1999 passed by the Rent Control and Eviction Officer and has prayed for quashing the said orders and for a direction to him to proceed with the case for allotment or the release of the premises in question after declaring it vacant. A counter-affidavit of Mathura Dass, respondent No. 7, has been brought on record. Heard Sri A. N. Sinha appearing on behalf of the petitioner and Sri P. N. Khare on behalf of respondent Nos. 2 to 7.
(3.) SRI Sinha urged that the tenanted accommodation was originally allotted to a partnership firm-Gopal Dass Bhittal Dass by order dated 30-3-1959, of which Ramadhin, his son Gokul Dass, Smt. Agna Devi and her minor sons Mathura Dass and Bhittal Dass were the partners. The firm was dissolved in the year 1973 and two new firms were constituted, viz. M/s Gokul Dass-Mohan Dass in which Ramadhin and his three sons Gokul Dass, Mohan Dass and Ratan Dass become partners. Mohan Dass and Ratan Dass were added as new partners. The other firm was M/s Mohan Dass-Bhittal Dass of which Mathura Dass and Bhittal Dass were the partners. Smt. Agna Devi who was originally partner of the firm though alive has been excluded. In the year 1991, a new firm under the name and style of M/s. Gobardhan Traders come into existence, of which Pankaj and Piyush sons of Mathura Dass, Padmawati wife of Mathura Dass and Smt. Sadhna w/o Padam Kumar (daughter-in-law of Mathura Dass) became partners. The Rent Control and Eviction Officer has held that no vacancy had occurred as M/s Gobardhan Traders has been in existence since before 1976 and Smt. Sadhna Gupta, daughter-in-law of Mathura Dass was the legal occupant. Review petition filed by the petitioner was rejected holding that the tenancy of Smt. Agna Devi was inherited by grand-son Padum Kumar. This observation is patently wrong in view of the fact that since Smt. Agna Devi is still alive. The question of inheritance of her tenancy rights by Padam Kumar did not arise. A wrong view of the matter was also taken that Padam Kumar grand-son of Smt. Aga Devi is entitled to have his wife Smt. Sadhna as a partner.;