Mahendra Kumar vs Rent Control and Eviction Officer,Kanpur and Others

R.H. Zaidi, J.—By means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of centorari quashing the order dated 1962000 whereby the building in question was declared as vacant.

It appears that the Respondent No. 3 filed an application for allotment of the disputed building on which proceedings under Section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. XIII of 1972) for short, ''the Act'' were initiated. The Rent Control Inspector after making local inspection in accordance with law, submitted his report on 2061996. On the basis of the said report notices were issued to the concerned parties. The petitioner, it has been stated filed his objection on 581996. The Respondent No. 3 also filed his objection. After perusing the material on record, the Rent Control and Eviction Officer declared the building in question as vacant on 1851998 and thereafter hearing the parties and perusing the material on the record released the building in question in favour of Respondent No. 3 by order dated 1561998. Challenging the validity of the aforesaid orders declaring the vacancy and releasing the building in favour of Respondent No. 3, petitioner filed Writ Petition No. 21410 of 1998. The writ petition was ultimately allowed by order dated 5 81998 but the case was remanded back to the Rent Control and Eviction Officer for decision afresh. The Rent Control and Eviction Officer by impugned judgment and order dated 1962000, again declared the building in question as vacant, hence the present petition.

Learned Counsel for the petitioner vehemently urged that the authorities below acted illegally in declaring the building in question as vacant. It was also urged that in reply to the affidavit filed by Respondent No. 3, written argument was filed on behalf of the petitioner in which it was stated that the petitioner and his partners used to carry out business in the building in question. Today, learned Counsel for the petitioner filed a supplementary affidavit annexing therewith the copy of the affidavit filed by the Respondent No. 3 on 12th May, 1999 which has been referred to and relied upon by the authorities below. A perusal of the said affidavit shows that the Respondent No. 3 has specifically stated that the licence of the shop in question was in the name of the following persons:

Mahendra Kumar, Surendra Kumar, Rakesh Kumar, Rajesh Kumar, Ajai Kumar and Smt. Nirmala Devi.

Admittedly, the aforesaid persons are not members of the family of the petitioner. They therefore, could not be admitted as partners of the firm without following the procedure prescribed for the same under the law.

Subsection (2) of Section 12 of the Act reads as under:

"12. Deemed vacancy of building in certain cases.(1)............

(2) In the case of nonresidential building where a 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, as the case may be, the tenant shall be deemed to have ceased to occupy the building."

As observed by the Appellate Authority affidavit filed by Shri Gajendra Nath Chaturvedi remained uncontroverted, therefore, he had no option but to rely upon the said affidavit.

In view of the aforesaid facts, the Rent Control and Eviction Officer has not committed any error of law in declaring the building in question as vacant. I do not find any illegality or infirmity in the impugned order. No case for interference under Article 226 of the Constitution of India is made out.

The writ petition fails and is dismissed. Petition dismissed.