S.C. Mathur, J. - (1.) This petition pertains to declaration of vacancy Under Sec. 12(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. XIII of 1972 in respect of non -residential accommodation and its subsequent release in favour of the owners. The fact about which either there is no dispute between the parties or stand proved may first be stated.
(2.) Admittedly opposite parties 3 and 4 Radhe Lal and Smt. Kaushalya are landlord and landlady of the shop in dispute. Again admittedly the Petitioner Hakeem Agha Mohd. Afsar Shirazi was the tenant of the said shop on behalf of opposite parties 3 and 4. The Petitioner carried on his profession of a Hakeem in the said premises. On 16 -5 -78 Annexure No. 1, opposite parties 3 and 4 moved an application before the District Supply Officer, Rent Control, Lucknow, opposite -party No. 1 Under Sec. 16(1) for the release of the shop in their favour. In this application it was stated that the Petitioner had taken up a shop on rent at Hathipur District Lakhimpur Kheri and had "substantially removed" his effects from the said shop to the tenanted shop at Lakhimpur Kheri five days ago. Again it was stated in paragraph 5 that the shop in dispute was "practically" lying vacant under the lock and key of the Petitioner who was negotiating with persons to get good premium for the shop. On these facts it was stated that the shop in question is vacant Under Sec. 12 of the Act and is available for release to the landlords. On 5 -6 -78, Annexure C -l to the counter affidavit, the Inspector, Rent Control, submitted his report. At the time of his inspection the shop was closed and he could not inspect the shop internally. He, however, made enquiries from certain persons and came to the conclusion that the shop was lying locked for the last several months and the shop was, therefore, vacant. He, however, recommended that notice be issued to the Petitioner in order to obtain his version. On 1 -7 -78 the Petitioner's brother Masood Agha lodged First Information Report at Police Station Hasanganj at 8 -20 A.M. to the effect that the opposite parties with the assistance and active connivance of certain persons had broken open the lock of shop in dispute and taken illegal possession thereof as also of the goods lying in the shop. On 2 -7 -78 at 11 -20 A.M. another First Information Report was lodged at Police Station Hasanganj by the Petitioner himself complaining of the same act about which the compliant had been made by Masood Agha. On 6 -7 -78, Annexure II, the Petitioner filed objection against the release application of the landlords. On 17 -10 -78 the opposite parties filed their reply to the Petitioner's objection. The opposite parties invited the attention of the District Supply Officer to their application for release dated 6 -5 -78 and reiterated the facts stated in the said application. It was further stated in paragraph 5 of the reply that' the Petitioner had given vacant possession of the shop in question to opposite party No. 3 on 29th June, 1978. It was further stated that no almirah much less several almirahs belonging to the Petitioner were there in the shop in question. In support of their case the landlord -opposite parties filed affidavits of Tulsi Ram Saxena, Chakravarty Rajgopala Charya Tiwari, Advocate and one of the landlords namely Radhe Lal. In all these affidavits it was stated that the Petitioner carried on his business in the shop in dispute up to about 1st week of May, 1978 and thereafter all the effects in the shop were removed from there, keeping the shop under the lock and key of the Petitioner and thereafter on 29th June, 1978 the Petitioner handed over vacant possession of the shop to Radhe Lal, one of the landlords. The Petitioner did not file any affidavit of any person living in the locality but he filed his won affidavit. There is some controversy with regard to filing of this affidavit. On behalf of the opposite parties, landlords, it was asserted that the affidavit was not filed on the date fixed, in the presence of the opposite parties but was filed behind their back and the same could not, therefore, be taken into consideration. This controversy is not material at this stage. The matter was fixed for arguments before District Supply Officer on 27 -3 -1979 but it appears that on this date no appearance was put in on behalf of the Petitioner and an order was passed declaring the shop to be vacant. Thereafter on 12 -4 -1979 the District Supply Officer passed an order releasing the shop in question in favour of opposite parties 3 and 4. A copy of this order is Annexure No. VII to the writ petition. Aggrieved by the order of the District Supply Officer the Petitioner filed a revision before the learned District Judge, Lucknow, who transferred the same for hearing to the Vth Additional District Judge, Lucknow, who by his judgment and order dated 7 -3 -80, Annexure 8, dismissed the same. While these proceedings were going on before the District Supply Officer, proceedings Under Sec. 145 were initiated at the instance of the Petitioner. The Petitioner's complaint in the said proceedings was that he had been illegally dispossessed from the shop in question and there was apprehension of breach of peace. These proceedings terminated in favour of the Petitioner by the order of the learned Magistrate dated 23 -7 -79, Annexure -9. The order of the Magistrate has been confirmed in revision by the learned Sessions Judge by his judgment and order dated 30th July, 1980. The orders passed in proceeding Under Sec. 145 of the Code of Criminal Procedure have been challenged by the landlords through a petition Under Sec. 482 of the Code of Criminal Procedure (Crl. Misc. Case No. 1561 of 1980). This case is also listed before me but it would be heard and decided by a separate judgment.
(3.) A perusal of the order passed by the District Supply Officer would show that while declaring the vacancy of the shop and releasing the same in favour of opposite -parties 3 and 4 he did not take into consideration the affidavit filed by the Petitioner on the ground that the same had been filed behind the back of the landlords. He recorded the finding that the Petitioner had opened a shop in the name of Hakim Agha Mohammad Afsar Shirazi Daliganjwale at Hathipur, District Lakhimpur Kheri, and, therefore, the shop in question was vacant. The order dated 27 -3 -79 by which the vacancy has been declared has not been placed on record by either party but reference to this order has been made in the judgment of the learned Additional District Judge. The learned Counsel for the Petitioner is justified in arguing that merely on the basis of the Petitioner opening a shop at Kheri, the shop in dispute could not be treated as vacant Under Sec. 12 of the Act which provides as follows: 12. Deemed vacancy of building in certain cases - (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if - (a) He has substantially removed his effects there from, or (b) He has allowed it to be occupied by any person who is not a member of his family, (c) In the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. From the above language it is apparent that Under Sec. 12(1)(a) a shop can be deemed to be vacant only if the tenant has substantially or completely removed his effects there from. Mere acquisition of another shop as tenant or as owner does not result in vacancy under this clause. The Supply Officer inferred vacancy merely from the fact of the Petitioner having acquired a shop at Kheri. In doing this he committed manifest error. On the facts of the present case he was further required to record the finding that the Petitioner had substantially or completely removed his effects from the shop. His order therefore cannot be sustained. I may now consider whether the error committed by the District Supply Officer stands rectified by the order of the learned Additional District Judge.;