- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order of the Additional District Magistrate, Varanasi exercising powers of Rent Control and Eviction Officer declaring the shop in question as vacant.
(2.) THE petitioner is admittedly a tenant in the shop in question. An applica tion was filed to declare the vacancy under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (in short the Act) on the allegations that the petitioner has vacated the and he has passed on the possession to one Kishan Chand, who occupied the shop in question. THE Rent Control Inspector submitted a report indicating that Kishan Chand and Leela Ram were found in pos session on the shop in question. THE petitioner filed objection stating that he has not vacated the shop in question and Kishan Chand and Leela Ram are related to him and they are helping him in the business. THE report of the Rent Control Inspector was challenged. Respondent No. 1 relying upon the report of the Rent Control Inspector declared the accom modation in question as vacant by the im pugned order. I have heard Sri A. C. Tripathi, learned Counsel for the petitioner, and Sri Sankatha Rai, learned Counsel for the respondents. The learned Counsel for the petitioner contends that the petitioner is carrying on the business in the name of M/s. Shanti Dresses. He had filed sales-tax" registration, Labour Court Registration, Receipts from the Nagar Mahapalika and Income-tax notice which clearly indicate that the petitioner is the sole proprietor of M/s. Shanti Dreses and he is carrying on the business in the disputed premises. Be sides these documents he filed his affidavit and affidavit of Kishan Chand. Kishan Chand is the cousin of the petitioner and was sitting in the said shop along with Leela Ram who is his brother. The Rent Control Officer relying upon the docu ments held that Kishan Chand and Leela Ram were in possession. The first docu ment is bond dated 19-5-1988 alleged to have been submitted by Leela Ram in the Court of Special Judge, Varanasi, where Leela Ram had given his address of the shop in question. This document itself is not a conclusive evidence to establish that the petitioner was not carrying on the busi ness in the shop in question. The second document is alleged to be an application given to the Superintendent wherein Chandi Mai, father of Kishan Chand, stated that Kishan Chand is carrying on the business in the shop in question. The ver sion of the petitioner is that they were helping in the business, and in fact, he was carrying on the business. The Rent Con trol and Eviction Officer has not recorded any finding as to whether the business, which was being carried on by the petitioner has been closed. He has also not considered the various documents filed by the petitioner.
(3.) IT has to be further considered that if a person other than the tenant is in occupation of a shop what is his status to occupy such shop, has to be examined on facts. In Jagdish Prasad v. Smt. Angoori Devi, 1984 (1) ARC 679, it has been held that merely from the presence of a person other than the tenant in a shop sub-letting cannot be presumed. There may be several situations in which a person other than the tenant may be found sitting in the shop; for instance, he may be a customer waiting to be attended to ; a distributor who must have come to deliver his goods at the shop for sale; a creditor coming for collection of dues ; a friend visiting for some social purpose or the like. If on the other hand a person is found continuing in possession the onus shifts on the tenant to prove the status of the person who is in possession of the premises in question. In Smt. Kiran Gael v. IInd Additional District Judge, Aligarh, 1993 (1) ARC 326, it was observed that while the initial onus of proving sub letting or transfer of the lease holding is upon the landlord yet once the Court is satisfied that there has been transfer of possession, the onus may shift on the tenant who has special knowledge of the facts whereby he can explain the manner in which such possession was transferred. The Court has to examine all these aspects before recording a finding that there was sub-letting by the tenant. In view of the above the writ peti tion is allowed. The impugned order is quashed. The Rent Control and Eviction Officer is hereby directed to decide the matter afresh in accordance with law within two months from the date of production of a certified copy of this order. Petition allowed. .;