- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) THIS is tenant's writ petition directed against vacancy declaration or der dated 22. 4. 2006 passed by the Rent Control and Eviction Officer/city Magistrate, Shahjahanpur in Case No. 20 of 2000, Shailesh Kumar and an other v. Smt. Sarla Devi. Landlords-respondent Nos. 1 and 2 filed release ap plication under section 12/16 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of the accommodation in dis pute which is a shop on the ground that it was vacant and they needed it. Petitioner is tenant in the said shop at the rent of Rs. 300/- per month since 1987 and rent note was also executed by the tenant on 14. 9. 1987. It was also alleged that the shop had been sub- let to Atul Kumar Saxena. Tenant pleaded that rent was accepted by the landlord till January, 1999 and thereafter as landlord refused to accept the rent hence it was de posited under section 30 of the Act. It was further stated that Atul Kumar Saxena was real brother of husband of the tenant and was looking after the business from the shop in dispute on behalf of the tenant-petitioner and for the said purpose registered power of attorney had also been executed by her in his favour. R. C. and E. O. declared the vacancy on the ground that tenancy was without allotment order and there was sub-letting. I have held in Rajdhari v. Smt. Ranjana Gupta and another, 2006 (63) ALR 677 placing reliance upon Supreme Court authority of Mansa Ram v. S. P. Pathak, AIR 1983 SC 1239 that al lotment/release application under section 16 of the Act on the ground of deemed vacancy for the reason that building was let out without allotment order cannot be filed after 12 years of occurrence of vacancy.
(3.) AS far as sub-tenancy is concerned, tenant's husband was in service since the date on which shop in dispute was taken on rent by the tenant and since then business is being run in the same manner i. e. , controlled by the petitioner and run and managed by her husband's brother. If business is actually controlled by the tenant but management is looked after by another person then it does not amount to vacancy. Accordingly writ petition is allowed. Impugned order is set aside.;