Sibghat Ullah Khan, J. - (1.) HEARD Shri N.C. Rajvanshi, learned Senior Advocate for the petitioners and Shri V.D. Ojha learned Counsel for the landlords -respondents. Landlords respondents Nos. 2 and 3 Ramesh (ought to be) Rakesh Kumar and Dinesh Kumar filed release application under section 21 of U.P. Act No. 13 of 1972 against tenant -petitioners and thereafter applied for release before R.C. and E.O. under section 16 of the Act. Their case under section 16 proceedings was that petitioners were not carrying on the business from the shop in dispute hence it must be deemed to be vacant. The remedy of filing release application under section 16 was not available to the landlords after filing release application under section 21 of the Act.
(2.) IN this writ petition an order was passed on 8.7.1993 recording statement of Shri V.D. Ojha, learned Counsel for landlord -respondents to the effect that the landlords would be filing an application for withdrawal of their case under section 21 of the Act. It was further directed that in case withdrawal application was filed, Prescribed authority should pass final order thereupon within one week. Learned Counsel for landlords -respondents is not in a position to say anything regarding filing of the withdrawal application. Proceedings under section 16 of the Act before R.C. and E.O./S.D.M., Hathras were registered as case No. 78 of 1992 under section 12/16 of the Act Rakesh Kumar v. Hari Shankar, R.C. and E.O. through order dated 23.1.1993 held the shop in dispute to be vacant. In the said order it was also recorded that need of the landlord was bona fide. At the time of deciding question of vacancy it was not at all necessary to decide the need. The sole basis on which shop in dispute was declared to be vacant was a report of A.R.O. according to which at the time of inspection it was found that the business of the shop in dispute was being run on a small scale (karobar bahut halka tha). This is no ground to declare a tenanted shop as vacant. The contingencies under which a building may be deemed to be vacant have been provided under section 12 of the Act. No such contingency was found to exist by the R.C. and E.O. in the impugned order.
(3.) ACCORDINGLY , writ petition is allowed. Judgment and order passed by R.C. and E.O. on 23.1.1993 declaring the shop in dispute as vacant is set aside. Shop in dispute has got three khans, as mentioned in the impugned order. Rent of the shop in dispute is only Rs. 17/ - per month. This is virtually as well as actually no rent. I have held in Khursheeda v. A.D.J. : 2004 (54) AIR 177 : : 2004 (13) AIC 42, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, writ Court is empowered to enhance the rent to a reasonable extent. Accordingly, it is directed that with effect from January, 2006 onwards petitioners shall pay rent to the landlords -respondents at the rate of Rs. 500/ - per month.;