The main legal point established in the judgment is that the court relied on assessment records and rent agreements to determine the occupancy of the premises, rejecting the landlord's claim of vacancy under Section 12.

JUDGMENT :

The U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act of 1972, was published and enforced by the Official Gazette dated 01.07.1976. The landlord and tenant, though it has been respectively defined under Section 3 of the Act, but that aspect pertaining to the relationship of the ‘landlord’ and ‘tenant’, since not being in controversy, this Court is not required to venture into it.

2. The only question, which engages consideration and as it has been argued too, is that as to whether there exists a vacancy over the tenement in question, which is the shop in dispute to attract the provisions contained under Section 12 for declaration of vacancy. If Section 12 of the Act, in itself is taken into consideration in its sub Section (5), it deals with the circumstances under which it would be treated, that a vacancy has occurred when the tenant has substantially removed his effects or has permitted the tenement to be occupied by some other person, who is not the member of the family and other aspect which has been provided therein.

3. The facts of the case herein are and as pleaded too by the petitioner, while putting a challenge to the order dated 29.09.2010, as it was passed by the Rent Control Eviction Officer whereby the Application and it was preferred under Section 12 for declaration of vacancy, registered as Rent Control Case No. 26 of 2001 was rejected and consequently there was a refusal by the Rent Control Eviction Officer to declare the tenement as to be vacant. In fact, there happens to be a property lying in Municipal Area of District Dehradun, bearing Municipal No. 60 Ghoshi Gali, Dehradun, which apparently is owned by the present petitioner, who is the landlord.

4. Since the construction of the said building being prior to 1972, the provisions of the same would be applicable to the tenement in question. The landlords’ case is, that initially one Mr. Abul Khaliq was inducted as a tenant on a rent, on month to month basis, carrying a rent of Rs. @ 50/- per month and was running a business under the name and style of M/s Style Tailors.

5. It was contended in the release application and in the writ petition too, that when Abdul Khaliq has left the disputed shop without giving any intimation to the landlord and permitting the same to be occupied by respondent No. 2, who is his brother without there being any written consent of the landlord. He contends that as soon as the possession is given to a person other than the relative, as defined under the Act, there would be a deeming vacancy under sub Clause (b) of sub Section (1) of Section 12 of the Act.

6. The landlord has further contended in his application under Section 12 of the Act, that Abdul Khaliq continued to pay the rent upto 31.12.1980 and thereafter ever since 01.01.1981, he didn’t deposited the rent and consequently, he had issued a notice on 02.12.1997 to Abdul Khaliq, thereby demanding the rent and consequently, terminating the tenancy. It is rather the petitioner’s own case, that said notice as it was issued on 02.12.1997 was received by respondent No. 2, who submitted his reply to it controverting its contends by filing the same on 07.01.1998.

7. It is contended by the petitioner landlord, that it was based upon the said reply which has been submitted by respondent No. 2 i.e. the tenant, it is on that basis, that the respondent No. 2 has claimed to be occupying the tenement in question, which the landlord contends, that respondent No. 2 was illegally occupying the same without any right of vested tenancy and hence it would be a case of deemed vacancy under Section 12, as the accommodation was never let out to the respondent No. 2, as per Act No. 13 of 1972, coupled with the fact that permission of being occupied by him, as it was alleged to be given by Abdul Khaliq was in contravention to sub Clause (b) of Sub Section (1) of the Section 12 of the Act.

8. So far as the respondent No. 3 is concerned, he was a prospective allottee, who is said to