Suman Wahal vs Mukti Sen and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 2531994 whereby the disputed accommodation has been declared as vacant and the order of release dated 841994 passed in favour of landlord Respondent No. 1.

Admittedly Respondent No. 1 is the landlady of the disputed premises. The father of the petitioner was its tenant. Dr. Rajendra Nath Sen and Sri Durga Das Sen, predecessorsininterest of Respondent No. 1, filed suit for eviction of the petitioner''s father before the Judge Small Causes Court on the ground that he has sublet the shop in dispute to West Bengal State Handloom Weavers Cooperative Society Ltd., Respondent No. 3. The defendant contested the suit with the allegations that the premises was not sublet but the defendant was carrying on sale of products of Respondent No. as commission agent. The trial Court dismissed the suit on 2351985. The plaintiffs filed revision against this judgment under Section 25 of Small Causes Court Act, which is still pending.

Respondent No. 1 moved an application under Section 16 (b) of U.P. Act No. XIII of 1972 for release of the shop in occupation of the petitioner with the allegations that the petitioner had removed his effects from the disputed shop. Shri J.C. Wahal, father of the petitioner, was carrying on business in the name of M/s. Suman Corporation but he, without permission, permitted it. to be occupied by others and now the business is being done in the name of Tantu Sarecs. On this application the Rent Control and Eviction Officer called for a report from the Rent Control Inspector. He submitted the report on 2531994 that on the spot Respondent No. 3, was carrying on business and therefore the accommodation can be treated as vacant. The notice was sent in the name of Sri J.C. Wahal. As none appeared on behalf of J.C. Wahal the accommodation was declared as vacant on 2351985. Subsequently on the application of Respondent No. 1, considering her need, it was released in her favour on 841994. These orders have been challenged in the present writ petition.

I have heard Sri P.N. Saxena learned counsel for the petitioner and Sri V.K.S. Chaudhari, learned Senior Counsel, for the Respondent No. 1.

Learned counsel for the petitioner contended that the petitioner was not served with any notice. The notice was issued to J.C. Wahal who has died long ago before issue of notice. This fact has not been denied that J.C. Wahal has died prior to issue of notice in his name.

The petitioner has filed an application for review/recalling the order on the ground that Respondent No. 3 is not carrying on business and he was not served, with a notice and, therefore, the order declaring vacancy and the subsequent order of release passed on the basis that the disputed accommodation is vacant be recalled. The learned counsel for the respondent contended that as the review application under Section 16 (5) is pending and secondly the revision under Section 18 of the Act is also maintainable, the writ petition is not maintainable and deserves to be dismissed.

Admittedly the petitioner was not served with the notice. The notice was sent in the name of his father who had already expired. In these circumstances the order declaring vacancy is to be recalled.

The next question is as to whether the disputed accommodation is vacant. The contention of the learned counsel for the petitioner is that the husband of Respondent No. 1, Dr. R.N. Sen, had filed suit against his father on the ground of subletting and the suit having been dismissed, it cannot be held that the petitioner had sublet the disputed accommodation to Respondent No. 3.

The vacancy can be declared either under Section 15 of the Act when the tenant vacates or is likely to vacate it and it can also be declared vacant under Section 12 of the Act when the conditions mentioned therein exist. If the tenant has substantially removed his effects from the disputed accommodation or has allowed it to be occupied by any person who is not member of his family or in 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.

The dispute is as to whether the petitioner is carrying on business in the disputed premises. The Rent Control and Eviction Officer can make himself local inspection or appoint an Amin/Advocate Commissioner to make local inspection. It will also examine the record as to whether the petitioner is carrying on business. It will also summon the record from Respondent No. 3 or any person who is in possession of the record of respondent No. 3.

As the matter is old the Rent Control and Eviction Officer, Respondent No. 2, shall decide the matter within three months from the date of production of a certified copy of this order. In case it is held that there was a vacancy, the order of release which has already been passed on 841994 shall remain operative. In case, however, it is found that there is no vacancy, the release order dated 841994 shall be treated as set aside.

In view of the above the writ petition is allowed. The order dated 831994 is hereby quashed. Respondent No. 2 is directed to decide the matter afresh as directed above. Petition allowed.