O.H. Mootham, J. - (1.) This is a petition under Article 226 of the Constitution which, although it has been very well argued by Learned Counsel for the Petitioner, must in my opinion fail. Notwithstanding the fact that the affidavits are of considerable length, the relevant facts can I think be stated very shortly. The Petitioner is the owner of a shop in Meerut Cantonment. For some years prior to the 13th June, 1952, the shop was in the occupation of a firm known as Messrs. Nand Lal Brothers as tenants of the Petitioner. On the 13th June, 1952, Messrs. Nand Lal Brothers vacated the premises which were thereupon occupied by the Petitioner. The first respondent , who is the Station Commander, Meerut, took the view that the premises thereupon became vacant within the meaning of Sec. 9 of the U.P. Cantonments Control of Rent and Eviction Act, 1952, (which corresponds to Sec. 7 of the U.P. Rent Control and Eviction Act) and by an order made on the 25th February, 1953, he allotted the premises to the third Respondent.
(2.) It is the Petitioner's case that on the 13th June, 1952, the Petitioner purchased the business and good will of Messrs. Nand Lal Brothers and proceeded to carry on in the shop the business previously carried on by Nand Lal Brothers. The Respondents do not accept this version of the facts as being wholly correct, particularly as regards the purchase by the Petitioner of Nand Lal's business, but this is not a matter in which I think it is necessary for me to go further as, even accepting the facts as stated by the Petitioner, he has in my opinion failed to make out a case. On the basis of the facts alleged by him the Petitioner challenges the validity of the allotment order in favour of the third Respondent on the ground that the shop at no time became vacant within the meaning of Sec. 9. It has been strenuously argued before me that if upon a tenant vacating the demised premises the latter are occupied by the landlord who at the same time purchases the business of the outgoing tenant then there is no vacancy in law and the occupation by the landlord is in no way contrary to the provisions of the Rent Control Acts. Learned Counsel for the Petitioner relied upon Lachhman Das v/s. Rent Control and Eviction Officer, Bareilly, 1953 A.W.R. (H.C.) 125 in which a Bench of this Court held that when an owner of property who is in possession of it, and in actual occupation, transfers the possession and ownership to a transferee the ownership and possession vest in the transferee from the moment of transfer and the accommodation cannot in such circumstances be said to have fallen vacant within the meaning of Sec. 7 of the Rent Control and Eviction Act. That case is however distinguishable from the present in that the owner of the premises was in the actual occupation of them, whereas in the present case the premises were at all material times in the occupation of Messrs. Nand Lal Brothers. In the course of their judgment in Lachhman Das's case their Lordships say: What is contemplated by 'accommodation falling vacant' under Sec. 7 in the case of the landlord himself in occupation is that the accommodation is not intended to be used by the owner for his own purposes but is intended to be let out to a tenant, or if the occupier is a tenant" - -and that is the position in the present case - -"that the tenant will cease to occupy it.
(3.) A similar view was taken in an earlier case by Mr. Justice Brij Mohan Lall in Mahabir Prasad v/s. Kewal Krishna, 1953 A.W.R. (H.C.) 73 When that learned Judge said - - The word 'vacant' as used in the U.P. Temporary Rent Control and Eviction Act means that the tenant should have ceased to occupy the accommodation with the intention of not coming back to it again.;