S.K. Varma, J. - (1.) THIS is a petition under Article 226 of the Constitution of India challenging the order dated 23.9.1993 of the Rent Control and Eviction Officer II, Allahabad whereby he declared the disputed accommodation No. 26, Gujarati Mohalla, Allahabad as vacant. The proceeding were commenced on the application of the respondent No. 2 Kapil Kumar Sahgal claiming that the disputed accommodation was in the tenancy of one Shiv Mohan who paid Rs. 100/ - per month as rent and now had vacated the accommodation and it was vacant and it be allotted to him. The Rent Control and Eviction Officer acting under Sec. 12 of U.P. Act No. 12 of 1972 (hereinafter called the Act) sought the report of the Inspector concerned and after hearing the parties came to the conclusion that the accommodation was vacant. It is against this order that the present petition has been filed. Learned counsel for the petitioner has argued that there was no evidence on record that the disputed premises were ever let out and, therefore, without the consent of the landlady, namely the petitioner, there cannot be any deemed vacancy. It has also been argued that the respondent No. 1 took note of the entries in the voters list which did not indicate the capacity in which the persons shown in the voters list were occupying the premises, hence they cannot be termed as tenant of the premises. It has also been argued that the 'Bahi Khata' filed by the petitioner was illegally ignored by the respondent No. 1. The burden of proving that the portion was vacant lay with the persons seeking allotment.
(2.) AFTER hearing learned counsel for the parties and going through the record I do not find any merit in this petition. Notice of the fact can be taken that it is an admitted position that several persons occupied the disputed premises at different points of time. According to the respondent No. 2, the landlady has been letting the premises in dispute since the year 1966 and the voters list of the years 1966 and 1970 only shows that the premises were occupied by Dwarika Prasad, Smt. Radhey Rani, Shitla Prasad, Smt. Vijai Laxmi, Kedar Nath, Jai Devi, Lalji and Shiv Mohan. In paragraph 5 of the rejoinder affidavit the petitioner admits that the persons mentioned in the voters list for 1966 and 1970 were serving in some way or the other either in the firm of the petitioner or in the house -hold of the petitioner. Thus, it has not been denied that the aforementioned persons occupied the premises in dispute at some point of time or the other. The explanation offered by the petitioner is that Dwarika Prasad was working in the shop of the petitioner and Radhey Rani was his wife. Similarly, Shitla Prasad was working in the house -hold affairs of the petitioner and Vijai Laxmi was his wife. Similarly Kedar Nath was teacher for son and daughter of the petitioner and Jai Devi and Lalji were family members of Kedar Nath. They were given accommodation in the house for their services and no rent was charged from them and, therefore, they were not tenants. In paragraph 6 of the rejoinder affidavit the petitioner has mentioned that Raje Mahendra Lal was teacher of the children of the petitioner and Smt. Nirmala Srivastava was wife of Raje Mahendra Lal. Mr. Shiv Mohan Agnihotri lived in the disputed tenement as Munim in the firm of the petitioner. Smt. Shanti Devi, Ramesh Chand Agnihotri and Radhey Shyam Agnihotri were family members of Shiv Mohan Agnihotri. On the basis of these facts the statement of Suraj Prasad Chaddha that the accommodation in dispute was occupied by Shiv Mohan Agnihotri as a tenant on Rs. 100/ - per month as rent was properly appreciated by the respondent No. 1 in coming to the conclusion that the disputed premises was let out on rent and now it will be deemed vacancy. Learned counsel for the petitioner placed reliance on a Division Bench of this Court in Maharaj Kumari Vimla Devi v. Rent Control and Eviction Officer, Mussoorie and another : 1983 (2) ARC 225. In that case the landlady was living in Delhi and keeping her house at Mussoorie for summer needs and during her stay at Delhi the house of Mussoorie was looked after by a care -taker. In those circumstances it was held that the house of Mussoorie cannot be declared as vacant under Sec. 12(1)(b) of the Act. In the present case, however, all the persons mentioned in the fore -going paragraphs occupied the disputed premises with consent of the landlady. The only controversy remained to be considered was whether the occupation was in the capacity of tenant. The Rent Control and Eviction Officer recorded a finding of fact that atleast the last occupant, namely, Shiv Mohan occupied the tenement as a tenant. This court cannot interfere in a finding of fact arrived at by the Rent control and Eviction Officer under Article 226 of the Constitution of India. The aforesaid decision in Maharaj Kumari Vimla Devi's case (supra) is, therefore, of no help to the petitioner.
(3.) LEARNED counsel for the petitioner has also placed reliance on a Single Judge decision of this Court in Smt. Maddi Devi and another v. The Additional District Judge, Kanpur and others, 1981 A.R.C. 167. In that case it was held that in a case of a building which was never let out before and the landlord does not give his consent to throw the building open for allotment, the provisions of Sec. 12 of the Act would not apply to enable the District Magistrate to allot the building to anybody else after holding it deemed vacancy under Sec. 12 of the Act. However, Sec. 12 of the Act would apply to a building which had been let out before. It was further held that by Sec. 12 of the Act a legal fiction has been created that the property would be deemed vacant in certain circumstances. This provision has to be very strictly construed. The property cannot be deemed to be vacant unless it has been specially established by evidence on record that the circumstances stated in clauses (a), (b) and (c) of Sec. 12(1) of the Act have come into existence. Applying the aforesaid test, we find that Sec. 12(1)(b) of the Act is fully applicable to the facts of the present case. Sec. 12(1)(b) reads as follows: A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof; if (a) ......................... (b) he has allowed it to be occupied by any person who is not a member of his family. Admittedly all the persons mentioned in paragraphs 5 and 6 of the rejoinder affidavit filed by the petitioner are not members of the family of the landlady.;