JUDGMENT B.K. Rathi, J.
1. This petition has been filed for quashing the order declaring vacancy passed under Section 12 of U. P. Act XIII of 1972 on 24.3.2001 by the Additional District Magistrate/Rent Control and Eviction Officer. Kanpur Nagar.
2. The premises in dispute is house No. 46/156, Halsi Road. Kanpur Nagar, which is commercial. Anil Mehrotra, opposite party No. 5, applied for the allotment of the said premises alleging that it is vacant. Therefore, the report was called from Rent Control and Eviction Inspector, who reported that the premises is vacant and M/s. Cawnpore Metal Stores, petitioner, is illegal occupant of the same. Thereafter notices were issued to the parties and ultimately the shop was declared vacant by the Impugned order. Aggrieved by it, the present petition has been filed.
3. I have heard Sri S. K. Gupta, learned counsel for the petitioners and Sri K. K. Arora, learned counsel for the opposite parties and have perused the affidavits.
4. In this case, It is undisputed that the disputed shop and another shop were allotted to late Ravinder Nath Gupta, father of the petitioner No. 2 by the District Magistrate/Rent Control Officer, Kanpur Nagar on 12.11.1964 and he was tenant of both the shops and was paying rent. Sri Ravindra Nath Gupta died on 8.1.1992, After the death of Sri R. N. Gupta, his heirs were carrying on the business in the disputed shop as well as in another shop.
5. The learned Rent Control Officer has held that there had been partition between the sons of Sri Ravindra Nath Gupta and the business of the disputed shop was given In the share of the petitioner No. 2, who alone is carrying on the business in the disputed shop In the name and style of Cawnpore Metal Stores, petitioner No. 1. The other shop was given to the share of the other brothers of the petitioner No. 2 and they are carrying a separate business In that shop.
6. The Rent Control and Eviction Officer has declared the shop as vacant only for the reason that all the heirs of late R. N. Gupta are not carrying out the business in the disputed shop and they have removed their effects from the shop and the petitioner alone is carrying on business In the same.
7. In my opinion, the approach of the learned Rent Control and Eviction Officer Is totally against the principles of law. After the death of the tenant, It is not necessary that all the heirs of the tenant should carry on the business in the shop In the tenancy of the tenant. If one of the heirs is carrying on the business, he Is legal tenant and for the reason that other heirs are not carrying on business or have no concern with the business, it cannot be deemed to be vacant under Section 12 of the Act. The word "tenant" has been defined in Clause (a) of Section 3 of the Act 13 of 1972, (hereinafter referred to as "Act") to mean a person by whom the rent is payable and on the tenant's death - in case of a non-residential building, his heirs. Therefore, after the death of R. N. Gupta, the petitioner, became the tenant and is not an Illegal occupant of the disputed shop.
8. In view of the above, I find that the approach of the Rent Control and Eviction Officer has been totally erratic in this matter and he has erred in declaring the shop as vacant. The same cannot be held to be vacant.
9. The learned counsel for the opposite party has referred to the decision of the Apex Court in Mohammed Kasam Hatt Gulambhat v. Bakerah Fatehali. AIR 1988 SC 3214. In that case, the premises In question was a shop. It was let out to the tenant. The tenant entered into a partnership with his four sons for carrying on the business of sale of medicines in the suit premises and a partnership deed was executed between them. The partnership was at will and under Clause (7) thereof, it was provided that "only the tenant-father will be the exclusive proprietor and owner of the goodwill of the business place of the business and all other rights of the business. Subsequently a new partnership deed between two sons of the tenant was executed and in terms thereof the tenant-father and his two other sons retired from the business of the partnership. Various clauses of the new partnership deed clearly showed that after the tenant-father retired from the earlier partnership, he was to have no concern right, title or interest in the new partnership which was now carrying on business In the suit premises, though in the same name. The rent was also paid by one of the two partners of the new partnership. The landlord filed a suit for eviction on ground of sub-letting.
On these facts it was held :
"...under the new partnership, It was the sons of the tenant-father who were in complete control of the suit premises and were exercising exclusive possession for the same to the exclusion of the tenant-father. That tenant-father would occasionally visit the shop premises does not advance the case that he (tenant-father) could exercise his rights over the shop premises."
10. I have considered the law laid down in the case and am of the view that this authority has no application to the facts of the present case. Firstly, because in this case the original tenant Sri R. N. Gupta had died on 8.1.1992 and thereafter the petitioner No. 2 started his exclusive business in the disputed shop as his heir. The second reason is that the cited case relates to Bombay Rents. Hotel and Lodging House Rates Control Act (57 of 1947). The provisions of the same does not appear to be similar to the provisions of the U. P. Act XIII of 1972. Word 'family' has been defined in Clause (g) of Section 3 of the Act and it includes male lineal descendants. Therefore, the petitioner No. 2 is also the member of the family of the tenant and the occupation of the disputed premises by him does not show that he is an illegal occupant.
11. The vacancy has been declared under Section 12 of the Act. According to Clause (b) of Section 12, a landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if he has allowed it to be occupied by any person who is not a member of his family.
12. The petitioner No. 2 is the member of the family of the tenant, as such, there is no vacancy under Section 12 of the Act.
13. The petition is, accordingly, allowed and the impugned order of the Additional District Magistrate/ Rent Control and Eviction Officer. Kanpur Nagar, dated 24.3.2001 declaring the shoo as vacant is quashed.