- (1.) J. C. Mishra, J. This petition has been filed for writ of certiorari for quashing the order dated 11-11-98 (Annexure 16 to the petition) passed by Additional City Magistrate II/rent Control and Eviction Officer, Kanpur Nagar declaring vacancy under Section 12 of U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 4972 (hereinafter called the Act for convenience) with regard to Godam situated on plot resident No. 64/59 located in Gareria Mohal, Kanpur which is in pos session of the petitioner.
(2.) THE undisputed facts are that the Godam in question previously belonged to Murali Dhar who transferred it to Smt. Aruna Mishra, respondent No. 2. THE landlady filed an application for release under Section 16 (1) of the Act. On enquiry the petitioner was found to be in posses sion of the godown. THE petitioner in timated that godown was part of tenancy of Jagarnath alias Jaggu Lai who carried on business in the name and style of firm Santosh Kumar Kamlesh Kumar a registered firm since 1975 and regularly paid rent amounting to Rs. 31. THE petitioner also claimed that he was partner of the said firm which was registered on 31-7-66. The landlady filed objection, inter alia, that the firm Satyendra Kumar Kam lesh Kumar was not in existence and the previous tenant Jagarnath alias Jaggu Mai has died. The petitioner was in un authorised possession of the said godown and, therefore, it was vacant within the meaning of Section 12 of the Act. The Rent Control and Eviction Officer gave opportunity to the parties to adduce evidence by affidavits and docu ments. The learned Rent Control and Eviction Officer held that the petitioner was a partner with the previous. tenant Jagarnath and the business place accord ing to the partnership deed was Generalganj, Kanpur, the said firm had no connec tion with the godown in question and since the petitioner was neither heir nor family member of Jagarnath, he was not entitled to retain possession over the godown. He also held that the partnership deed was not connected with the premises in question. With these observations the Rent Control and Eviction Officer declared the godown in question as vacant and directed notifica tion of the vacancy.
(3.) THE learned counsel for the petitioner contended that the firm was tenant of the premises in suit and both the partners, namely, Jagarnath and the petitioner were carrying business and using godown for the purposes of the firm. He contended that as the petitioner was not inducted after coming into force of the Act, he could not be said to be an un authorised occupant. From the perusal of the impugned order it appears that the Rent Control and Eviction Officer rejected the case of the petitioner only on the ground that the place of business of the firm was shown as Generalganj. He has, however, not recorded any finding whether the firm was tenant of the godown in question or whether Jagarnath was in possession in his individual capacity or as partner of the firm. Without recording any finding the Rent Control and Eviction Officer as sumed that Jagarnath was tenant of the godown presumably in personal capacity and even if the petitioner Krishna Kumar Awasthi was in possession since 1965-66 he could utmost be sub-tenant. It was also observed that Krishna Kumar Awasthi was neither heir nor family member of Jagarnath and, therefore, he could not be treated as partner nor his rights to retain the premises could be recognised.;