- (1.) S. U. Khan, J. This writ petition has been filed by Master Atul Awasthi claiming to be lawful occupant of an almirah shop which is situate inside a wall towards outer portion of the same. Respondent No. 3 Basant Lal applied for allotment of the shop in dispute on the ground that it was vacant as the previous tenant Ashok Kumar Awasthi had been appointed in the Forest Department and for more than six months the shop was locked. The case was registered as Case No. 68/630 of 1979 on the file of R. C. and E. O. , Allahabad. Respondent No. 4 P. D. Agarwal, the landlord did not appear before R. C. and E. O. Before R. C. and E. O. Smt. Ram Shree Awasthi mother of petitioner Atul Kumar Awasthi appeared and filed objection. Case of the petitioner through her mother was that the petitioner was nephew of Ashok Kumar Awasthi and it was Gaya Prasad grand-father of the petitioner who had taken the shop in dispute and after his death petitioner with the help of his mother was carrying on business from the shop in dispute. Father of the petitioner i. e. Sri Prakash Awasthi was an employee of S. B. I. at the time of allotment. At that time petitioner was about 12 years of age. R. C. and E. O. held that petitioner was not carrying any business in the shop in dispute and Prakash Awasthi and Ashok Kumar Awasthi his father and uncle were employed in S. B. I. and Forest Department and shop in dispute was closed for six months before the date of filing of allotment application. The relevant finding of R. C. and E. O. (on page 32 of paper book) are quoted below : "shop in question being locked for six months without any business is deemed to be vacant. "
(2.) ULTIMATELY, R. C. and E. O. , Allahabad by order dated 19-3-1980 allotted the building in dispute to respondent No. 3. Petitioner filed a revision against the said order being R. C. Revision No. 204 of 1980. 1st Additional District Judge, Allahabad through judgment and order dated 7-9-1981 dismissed the revision hence this writ petition. Heard learned Counsel for petitioner and allottee/respondent No. 3. Landlord respondent No. 4 filed his counter-affidavit supporting the petitioner however no one appeared on his behalf during arguments. An almirah shop inside a wall is building as defined by Section 3 (1) of U. P. Act No. 13 of 1972. The R. C. and E. O. has held that the shop contains a shutter as door. This further strengthens its claim to be a building. The Supreme Court has held that a structure laying some claim to permanency and fulfilling a residential or commercial purpose shall be deemed to be a building for the purposes of Rent Control Act. S. A. Shah v. M. Yadgiri, (2003) 1 SCC 138. In this authority a wooden structure of permanent nature standing on land and having walls and roof made of wood was held to be a building. I do not agree with the contention of learned Counsel for petitioner, based upon the authority of A. Aamid v. D. J. , 1987 (1) ARC 208, that wooden shop, or almirah shop, can only be part of a building like a fixture but not a building independently. The question whether such a shop can independently be a building or not was neither subjudice nor decided in the said authority. Such a shop can very well be treated to be an independent building as well as fixture or annexe to the main building. I find that the order declaring vacancy and the consequent allotment order as confirmed by Revisional Court are bad in law on the following grounds (The Supreme Court in Achal Misra v. R. S. Singh, 2005 (2) JCLR 580 (SC) : 2005 (59) ALR 591 (SC) : 2005 (29) AIC 110, has held that in revision against allotment or release order correctness of vacancy, declaration order may also be adjudged) : (i) Inspection by R. C. I. was made without notice to tenant/occupant in violation of Rule 8 (2) of the Rules framed under U. P. Act No. 13 of 1972 which is mandatory as held by Supreme Court in Yogendra Tiwari v. D. J. , 1984 (10) ALR 285 (SC ). The Lower Revisional Court committed a patent error of law in holding that firstly it was not necessary to issue notice to tenant/occupant and secondly provision of notice was not mandatory. (ii) Vacancy cannot be declared (as has been done in the instant case) on the ground that premises is locked for some time. There is no provisions to that effect in the Act. There is no finding that tenant had substantially removed his effects from the premises in dispute. (iii) The act of joining service by the tenant of a shop does not ipso facto give rise to vacancy. (iv) If petitioner or his mother or both are in actual possession of the shop in dispute, it does not give rise to vacancy as they are family members of one of the tenants i. e. Prakash Awasthi. Accordingly, writ petition is allowed. Both the impugned orders are set aside. Petition allowed. .;