Sia Ram vs IIIrd Additional District Judge,Mainpuri & Ors.

S.U. Khan, J.—This writ petition arises out of allotment proceedings under Section 12/16 of U.P. Act No. 13 of 1972. Respondent No. 3, real brother of petitioner filed an application for allotment stating therein that initially petitioner was tenant of the shop in dispute but later on he vacated it hence it was vacant and it should be allotted to him. Respondent No. 4 Kayastha Sabha, Mainpuri is owner of the shop in dispute and respondent No. 5 is Secretary of the said Sabha.

Initially R.C. and E.O. by order dated 2291977, allotted the shop in dispute in favour of Radhey Shyam respondent No. 3. Petitioner filed review application, which was rejected on 23111977. Petitioner filed a revision being Civil Revision No. 87 of 1977. District Judge, Mainpuri held that no notice of vacancy was given to the petitioner, provisions of Rule 8 were not complied with and report of Rent Control Inspector was not pasted on the notice board. Ultimately the District Judge remanded the matter to R.C. and E.O. for determining the question of vacancy afresh after providing opportunity to the petitioner to adduce evidence. After remand R.C. and E.O. by order dated 20111978, held that there was no vacancy and petitioner was continuing as tenant of the shop in dispute This order was again setaside in revision and the matter was again remanded. R.C. and E.O. after remand, again by order dated 781979, held that there was no vacancy. This order was also challenged in revision. The revision was again allowed on 1971980 and the matter was again remanded. After remand, notice was sent to the landlord. Landlord through its Secretary, filed affidavit dated 6111980. Petitioner filed counter affidavit on 1511981.

R.C. and E.O. took into consideration the affidavit filed by the landlord according to which the landlord in its meeting dated 491977, recognised respondent No. 3 as its tenant with effect from 191977 and rent deed had also been executed in favour of Radhey Shyam respondent No. 3. According to the said resolution, copy of which was annexed alongwith the affidavit of the landlord, petitioner Sia Ram had not paid rent for three years and notice had been given by the landlord to him terminating his tenancy and in pursuance of the said notice Sia Ram petitioner appeared before the landlord and admitted that his brother Radhey Shyam was doing business from the shop in dispute and he had no objection if the shop was given to Radhey Shyam with effect from 191977.

R.C. and E.O. by order dated 331981, allotted the shop in dispute to Radhey Shyam. R.C. and E.O. also held in its order that petitioner could not show that he paid any rent to landlord for several years. Even though petitioner had denied to have even appeared before the landlord and consented to give shop to Radhey Shyam, however, R.C. and E.O. held that as petitioner had stated that respondent No. 3 Radhey Shyam, his brother was sitting on the shop with his consent as his servant hence it proved that petitioner had permitted a person who was not his family member to occupy the shop. Petitioner filed a revision against the aforesaid order of R.C. and E.O. Mainpuri dated 331981 being Civil Revision No. 42 of 1981. The said revision was dismissed on 481982 by III Additional District Judge, Mainpuri. This writ petition is directed against the said order of Revisional Court and order of R.C. and E.O. dated 331981.

As far as the stand taken by the landlord is concerned it cannot be justified. No positive finding has been recorded either by R.C. and E.O. or by Revisional Court that petitioner willingly handed over possession of the shop in dispute to the landlord and thereafter it was let out by the landlord to respondent No. 3 and possession was delivered by landlord to respondent No. 3. Mere nonpayment of rent and termination of tenancy does not give right to landlord to let out the shop to any other person. A lessor even after termination of tenancy cannot take forcible possession. The only course legally open to him is to obtain possession through decree of ejectment.

As far as question of vacancy on the ground of parting with possession in favour of nonfamily member is concerned, it has to be decided by the Courts that the other person is in exclusive possession. Possession of helper or servant does not give rise to vacancy or subletting. In the normal course of affairs a brother sitting on the shop may be treated only to be helper of the landlord. Possession of total stranger may give rise to a strong presumption of parting with possession hence subtenancy and vacancy. However possession of a brother who is even though not included in the definition of family under the Rent Control Act cannot give rise to such presumption.

In this regard, there is one more important aspect, which has completely been overlooked by both the Courts below. Even if entire case of respondent No. 3 as supported by the landlord is taken to be correct still the shop cannot be allotted to respondent No. 3 as according to his own case he is unauthorized occupant. In fact R.C. and E.O. declared the shop to be vacant on the ground that it was in occupation of respondent No. 3 as unauthorized occupant still shop was allotted to the same unauthorized occupant. This is not permissible under law.

Accordingly writ petition is allowed. Both the impugned orders are quashed.