- (1.) PRAKASH Krishna, J. Challenging the legality and validity of the order dated 18th of December, 1997 passed by the respondent No. 1 whereby he declared the shop in question as vacant, the tenant, Shri Mohd. Ilyas has come up with this petition.
(2.) THE facts of the case are not much in dispute and lie in a narrow campus. THE petitioner claims that he is tenant of the disputed shop since year 1945 which was let out to him by its earlier owner Rai Bahadur Banarsi Prasad. THE said shop was sold subsequently in favour of the respondents No. 2, 3 and 4 and there has been attornment of tenancy. THE petitioner who was continuing as tenant filed an application dated 24th of September, 1975 before the Rent Control and Eviction Officer for permission to induct Shri Narottam Saran son of Ram Lal resident of Mohalla Dilwali, Moradabad as a partner, in the disputed shop with the allegation that his business of radio is not yielding sufficient profit and he wants to start a new business of oil engine etc. with the partnership of Shri Narottam Saran. An application was filed under Rule 10 (6) (1) of the Rules framed under the U. P. Act No. 13 of 1972. THE Senior Rent Control Inspector submitted a report that the said partnership is a bona fide one and can be allotted in the partnership Firm. THE respondent No. 1 after taking into consideration the respective cases of the parties rejected the said application for taking the Narottam Saran as a partner but simultaneously ordered that the shop may be allotted in favour of Mohd. Ilyas and Narottam Saran under Rule 10 (6) (1), by the order dated 24th of May, 1976 (Annexure-1 to the writ petition ). THE said order was unsuccessfully challenged in Civil Appeal No. 260 of 1976. It appears that subsequently Narottam Saran, a co-allottee, expired and proceedings under Section 16 (b) of the Act for release of the shop was initiated by the respondents landlord. A report from the Rent Control Inspector was called for. THE case of the respondent landlord was that on account of the death of Narottam Saran, there is a vacancy in the disputed shop. THE case of the petitioner is otherwise. THE respondent No. 1 by the impugned order dated 18th of December, 1997 has declared the vacancy. Heard the Counsel for the parties. The learned Counsel for the petitioner submitted that by the order dated 24th of May, 1976 (Annexure-1), the application for inducting Narottam Saran as a partner was rejected but by the same order the shop was allotted in favour of the petitioner and shri Narottam Das (wrongly mentioned in place of Narottam Saran ). He submitted that the petitioner who was admittedly a tenant earlier before the order dated 24th of May, 1976 will continue to be a tenant and there is no question of any deemed vacancy. In contra, the learned Counsel for the respondent submitted that the shop was allotted jointly in favour of a Firm and the Firm stood dissolved on account of death of one of the partners Shri Narottam Saran and as such there is no illegality in the impugned order. I have given careful consideration to the respective submission of the learned Counsel for the parties. The indisputed fact is that the petitioner, the original tenant filed an application for permission to admit Narottam Saran as one of the tenants of the disputed shop along with him. The Rent Control and Eviction Officer while disposing of the said application, after calling a report from the Rent Control Inspector rejected the application for permission to take Narottam Saran as partner but he permitted the petitioner to take Narottam Saran as a co- allottee. The said order has attained finality as it was confirmed in appeal. The necessary conclusion is that the allotment was made in favour of two persons namely Mohd. Ilyas (the petitioner and Narottam Saran ). The question which falls for consideration is the effect of death of Narottam Saran on the question of vacancy of the disputed shop. The U. P. Act No. 13 of 1972 contemplates two kinds of vacancies. Firstly, the actual vacancy. Secondly, deemed vacancy. Evidently, the case in hand is not a case of actual vacancy as the petitioner is still continuing his business in the disputed shop. The circumstances under which a vacancy of a building can be deemed are enumerated under Section 12 of the said Act. The learned Counsel for the respondent could not point out any provision with reference to the aforesaid Section 12 under which on the facts of the present case it can be said that it is a case of deemed vacancy. A reference was made to Rule 10 (6) (a) of the Rules framed under the Act which provides that if the District Magistrate is satisfied in a case referred in Section 12 (2) that the admission of a partner or a new partner is bona fide transaction with not a mere cover for subletting, he shall, if any, application had been made in this behalf before the admission of such a partner or new partner, allot the non residential building in question afresh to the newly constituted or a reconstituted Firm. It is axiomatic that the said provision deals with the situation where a tenant admits a partner or new partner and the said transaction is treated as bona fide and not a mere cover for subletting. In the case in hand the admission of a partner or a new partner, as the case may be is not issue but the issue is if a shop was allotted to two different tenants and one of the tenants has died and the other still survives, is there a vacancy or not. In my view the Section 12 of the Act dealing with the deemed vacancy does not encompass such a situation specially when the learned Counsel for the respondent failed to point out any provision. In this view of the matter, it cannot be said that there is vacancy under Rule 10 (6) (1), as held by the Rent Control and Eviction Officer. The impugned order is indefensible and cannot be sustained. A somewhat similar controversy was considered by a Division Bench of this Court in Shanti Swarup Bhatnagar v. R. C. and E. O. and Anr. , 1979 ARC 399. In that case the contention of the petitioner was that he was a joint tenant to the knowledge of the landlady and had been residing and holding the contract of tenancy jointly. The tenant having died, proceedings for declaration of vacancy was initialed. This Court while allowing the writ petition in para 4 of the report has held as follows : ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . We would, however, like to observe that if the petitioner's assertion is found to be correct and if it is proved that he had been residing or holding office jointly with late Sri Ansari in the premises in dispute to the knowledge of the landlady, there could be no vacancy under the deeming provision of Section 12 of the Act and in that event the building cannot be released in favour of the landlord or allotted to Sri Sharma or anyone else ".
(3.) THE reliance placed by the learned Counsel for the respondents on Kishore Chand Gupta v. District Judge, Kanpur Nagar and Ors. , 1999 (2) ARC 91, is wholly misplaced one and has no relevance to the controversy involved even remotely. In view of the above discussion, the writ petition succeeds. The impugned order dated 18-12-1997 is quashed. No order as to costs. Petition allowed. .;