OM PRAKASH Vs. R C AND E O

JUDGEMENT

(1.) SUDHIR Narain, J. This writ peti tion is directed against the order of the Additional District Magistrate, Varanasi exercising powers of Rent Control and Eviction Officer declaring the shop in question as vacant.

(2.) THE petitioner is admittedly a tenant in the shop in question. An applica tion was filed to declare the vacancy under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972 (in short the Act) on the allegations that the petitioner has vacated the and he has passed on the possession to one Kishan Chand, who occupied the shop in question. THE Rent Control Inspector submitted a report indicating that Kishan Chand and Leela Ram were found in pos session on the shop in question. THE petitioner filed objection stating that he has not vacated the shop in question and Kishan Chand and Leela Ram are related to him and they are helping him in the business. THE report of the Rent Control Inspector was challenged. Respondent No. 1 relying upon the report of the Rent Control Inspector declared the accom modation in question as vacant by the im pugned order.

(3.) IT has to be further considered that if a person other than the tenant is in occupation of a shop what is his status to occupy such shop, has to be examined on facts. In Jagdish Prasad v. Smt. Angoori Devi, 1984 (1) ARC 679, it has been held that merely from the presence of a person other than the tenant in a shop sub-letting cannot be presumed. There may be several situations in which a person other than the tenant may be found sitting in the shop; for instance, he may be a customer waiting to be attended to ; a distributor who must have come to deliver his goods at the shop for sale; a creditor coming for collection of dues ; a friend visiting for some social purpose or the like. If on the other hand a person is found continuing in possession the onus shifts on the tenant to prove the status of the person who is in possession of the premises in question. In Smt. Kiran Gael v. IInd Additional District Judge, Aligarh, 1993 (1) ARC 326, it was observed that while the initial onus of proving sub letting or transfer of the lease holding is upon the landlord yet once the Court is satisfied that there has been transfer of possession, the onus may shift on the tenant who has special knowledge of the facts whereby he can explain the manner in which such possession was transferred. The Court has to examine all these aspects before recording a finding that there was sub-letting by the tenant.