K.N. Singh, J. - (1.) THIS petition is directed against the order of the Rent Control and Eviction Officer, Meerut, dated 9 -12 -1975 declaring vacancy in the shop in dispute under Section 12(1)(a) and (b) and Section 12(2) of the U.P. Act XIII of 1972.
(2.) ARUN Kumar, Lokeshwar Prasad and Jagdishwar Prasad Respondents are landlords of accommodation Nos. 692 and 695 situated at Begum Bridge, Meerut, which were let out under an agreement to Messrs Usha Sales (Private) Ltd., New Delhi. Messrs Usha Sales (Private) Ltd. appointed the Petitioners as their agent and they have been carrying out the agency business of Messrs Usha Sales (Private) Ltd. in the premises in dispute. The landlords filed a suit No. 213 of 1971 in the court of the City Munsif, Meerut, for recovery of arrears of rent and ejectment against the Petitioners and Messrs Usha Sales Private Ltd., New Delhi, on the allegations that Messrs Usha Sales (P.) Ltd. had vacated the premises and let out the same to the Petitioners who were liable to ejectment. The Petitioners as well as Messrs Usha Sales (P.) Ltd. contested the suit. The trial court dismissed the landlords' suit. On revision by the landlords the District Judge upheld the decree and order of the trial court and the judgment became final between the parties. The landlords thereupon made an application for release of the shops in dispute under Section 16 of the Act on the allegation that there was a deemed vacancy in the premises in dispute under Section 12 of the Act as Messrs Usha Sales (P.) Ltd. had substantially removed their effects and inducted the Petitioners in the shops in dispute. The Petitioners contested the landlords' application and asserted that there was no deemed vacancy. The Rent Control and Eviction Officer by his order dated 9 -12 -1975 held that since Messrs Usha Sales Private Ltd. had totally removed their effects and inducted the Petitioners who were not members of family there was deemed vacancy under Section 12(1)(a)(b) as well as under Section 12(2) of the Act. Aggrieved, the Petitioners have challenged that order. Section 12 lays down that a tenant shall be deemed to have ceased to occupy a building if he has substantially removed his effects, or he has allowed it to be occupied by any person who is not a member of his family, or in the case of residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. In the case of non -residential building if the 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, the tenant shall be deemed to have ceased to occupy the building. Section 12 creates a legal fiction to create vacancy although the building may be in physical occupation of the tenant or any other person. The words contained in Section 12 clearly show that the deeming provision would apply only if either of the situations contemplated therein takes place after the enforcement of the Act. If a building was occupied by a person who was not a member of the tenant's family or if a tenant admitted any other person as a partner in his business in a non -residential building prior to the enforcement of the Act the deeming provision would not apply. The use of the expressions "he has substantially removed his effects" and "he has allowed it to be occupied by any other persons" and "he as well as members of his family have taken up residence" in Sub -section (1) and the expression "admits a person who is not a member of his family" in Sub -section (2), show the legislative intent that the legal fiction would arise only if these circumstances occur after the enforcement of the Act. On the admitted facts the Petitioners were allowed to carry on agency business in the premises in dispute by Messrs Usha Sales (P.) Ltd. in the year 1969 much before the enforcement of U.P. Act XIII of 1972. In the circumstances we are of the opinion that Section 12 of the Act was not at all applicable to the premises in dispute and the Rent Control and Eviction Officer committed patent error of law in declaring vacancy under the said Section. Moreover, the civil court had recorded a finding in the suit filed by the landlords that the Petitioners were tenants of the accommodation in dispute, those findings had become final between the parties. The Rent Control and Eviction Officer could not disregard those findings in declaring vacancy under Section 12 of the Act.
(3.) IN the result, we allow the petition and quash the impugned order dated 9 -12 -1975. The Petitioners are entitled to their costs.;