- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 20-7-1987, passed by the Rent Control and Eviction Officer, respondent No. 1, rejecting the application of the landlord-respondent No. 3 for declaring the disputed premises as vacant and releasing it in his favour under Section 16 (l) (b) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') and the order dated 27-9-1988, passed by respondent No. 1, dismissing the revision against the aforesaid, order.
(2.) THE facts in brief are that respondent No. 3 is tenant of premises No. 104-A/211, 'p' Road, Kanpur. He is carrying on the business in the name of Matri Sewa Sadan since the year 1964. THE business was being carried on in partnership with Sri Anvar Nath Tandon and Sri Radhey Shyam Pandey. Sri Radhey Shyam Pandey expressed his desire to retire from the partnership and he actually retired with ef fect from 30- 3-1969. After he retired from the partnership, a deed of partnership was executed on 1st April, 1969 between Sri Amar Nath Tandon and respondent No. 3. In the said partnership Sri Shyam Nath Tandon, younger brother of respon dent No. 3 was admitted to the benefit of the partnership, Sri Shyam Nath Tandon in the year 1959 was aged about 18 years. He attained majority on 12th October, 1976. On his attaining majority another partnership deed was executed between Sri Amar Nath, Shyam Nath Tandon and respondent No. 3 on 4th August, 1977. THE business of the partnership was the same. Clause 15 of the Partnership deed provided that the firm as constituted shall be deemed to be successor in the busi ness carried on by the firm prior to the date of reconstitution and assets, liabilities and benefits accruing on the existing contracts of the prior firm shall belong to the reconstituted firm. THE partnership shall continue to carry on the business. The petitioner purchased the disputed premises in September, 1984. After about three years of the purchase of the premises in question, he filed an applica tion in the year 1987 under Section 16 (l) (b) of the Act on the ground that he requires the premises bona fide. It was alleged that respondent No. 3 has admitted his younger brother Shyam Nath Tandon as partner in his firm on 4th August, 1977. It shall be deemed as vacant under Section 12 (2) of the Act inasmuch as Shyam Nath Tandon is not a member of his family as defined under Section 3 (g) of the Act. This application was contested by respondent No. 3. It was alleged that he has not admitted him as a tenant in the year 1977 but he was, in fact partner since the year 1969 and is continuing to work in that capacity till today. The Rent Control and Eviction Officer found that respondent No. 3 did not admit his younger brother Sri Shyam Nath Tandon as partner. He was already partner since the year 1969. The application filed by the petitioner was rejected by his order dated 20-7-1987. The petitioner filed revision against the said order. Respondent No. 1 has dismissed the revision on 27-9-1988. The petitioner has challenged these orders in the present writ petition. I have heard Sri S,d. Dubey, learned counsel for the petitioner and iri Jitendra Kumar, learned counsel for the respondents at length.
(3.) SECTION 12 (2) of the Act provides that in case of a non-residential building where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new, partner, a the case may be, the tenant shall be deemed to have ceased to occupy the building. This provision is prospec tive as has been held in Full Bench decision of this Court in Kesar Bai v. District Judge, Mathura and others, 1980 A. R. C. 223. This decision has been followed sub sequently vide Bhawar Singh Jai v. Collector and District Magistrate, Muzaffarnagar and others, 1984 ARC 310. Prior to the enforcement of the Act No. 13 of 1972, a tenant was entitled to carry on any business himself in the tenanted premises or through partnership with others. There was no provision that he will not admit any person as a partner for the purpose of carrying on business. He was, however, not entitled to transfer the tenancy rights in the garb of entering into partnership with other persons and the Court was entitled to find out she true nature of the partner ship vide Seth Laxmi Chand v. Nath Mai Dutichand and another, 1965 ALJ 1000. In case the petitioner had taken his brother as partner prior to is c enforcement of the Act, he is entitled to continue the business in partnership with those persons without affecting his tenancy rights. The sole question is whether Shyam Nath Tandon has been admitted as partner after the enforcement of U. P. Act No. 13 of 1972. Learned counsel for the petitioner submitted that the partnership deed was executed on 4th August, 1977 wherein Shyam Nath Tandon was taken as a partner in the firm.;