- (1.) This petition is directed against the order of the District Magistrate, Muzaffarnagar dated 1.9.75, holding that there was vacancy under Section 12(2) of the U.P. Act. No. XIII of 1972 in the shop occupied by the petitioner as tenant.
(2.) Petitioner No. 1, Bhanwar Singh, was tenant of the shop situate No. 7/1-B, New Mandi, Muzaffarnagar since 1950 on an yearly rent of Rs. 1, 400/- on the first floor of the said shop. Shiv Nath Rai, respondent No. 2, is the owner and landlord of the shop in dispute. The landlord made three applications on different occasions under Section 3 of the U.P. Act No. III of 1947 for grant of premission to file suit for the tenant's eviction and each time he failed to obtain the permission. On 9th April, 1974, the landlord moved an application under Section 16(1) of U.P. Act No. XIII of 1972 for release of the shop in his favour on the allegation that the tenant had admitted one Rachpal Singh as partner in his business in the year 1963 and later on he had further admitted Mahabir Prasad Vaish and Ved Singh who were not members of petitioner's family, therefore, a vacancy had arisen under Section 12(2) of the Act. The District Magistrate by his order dated 1.9.75 rejected the landlord's application on the findings that his need was not bonafide and genuine. He further held that since the tenant had admitted Rachpal Singh as a partner in his business, he had ceased to occupy the shop in dispute as vacancy had occurred under Section 12(2) of the Act. The petitioner tenant has challenged the order of the District Magistrate by means of this petition.
(3.) By enacting Section 12, the Legislature had laid down that a building shall be deemed to be vacant if either of the contingencies as mentioned there-in exist. Sub-section (2) of Section 12 of the Act provides that if a tenant carrying on business in a non-residential building admits a person who is not a member of his family as a partner or a new partner as the case may be, the tenant shall be deemed to have ceased to occupy the building. It is not necessary to refer to other Sections as only Section 12 is relevant for the purpose of the present case. On a mere perusal of Section 12(2), it is apparent that the deeming provision would apply if a tenant admits a person as a partner after the enforcement of the U.P. Act No. XIII of 1972. If a person was partner or a tenant carrying on business prior to the coming into force of the Act, no vacancy could be deemed to have occurred under Section 12(2) of the Act. In the instant case, the landlord himself asserted that Rachpal Singh was admitted as partner by the petitioner tenant in the year 1963. The District Magistrate has also recorded a finding to that effect and declared the vacancy on that basis. In our opinion, the District Magistrate committed manifest error of law in declaring vacancy under the deeming provision of Section 12(2) merely because Rachpal Singh had been admitted as a partner in the business in the year 1963. The order of the District Magistrate is, therefore, liable to be quashed.;