JUDGMENT Ravi S. Dhavan, J. - An allotment order under the U.P. Urban Buildings Regulation of Letting, Rent & Eviction) Act, 1972 (U.P. Act No. XIII of 1972) has been set aside by the learned VIIIth Additional District Judge, Meerut in revision under Section 18 of the Act, aforesaid. Having considered the matter at length the District Judge in his judgment of 23rd March, 1987, which has been impugned in the present writ petition came to the conclusion that the possession of the petitioner in the premises she occupies at No. 125-A Soti Ganj (first floor) Begum Bridge, Meerut is illegal, as it was obtained in pursuance of an allotment order which itself was occasioned by adopting clandestine ways'. In effect, the Distinct Judge came to the conclusion that there is neither any deemed vacancy in the premises in question and thus the allotment order passed was without jurisdiction. The learned District Judge also declared that both the orders, in effect of the District Magistrate under the Act aforesaid declaring a vacancy and thereafter passing an allotment order were illegal on the ground that the landlord was never given any notice to contest either the vacancy, or the allotment proceedings. The order declaring a vacancy in the premises aforesaid and the subsequent order allotting the premises to the petitioner were set aside by the District Judge. 3. Before this Court examines the legality of the orders of the District Judge dated 23rd March, 1987 in revision, it is relevant to examine the origin of the set of circumstances which occasioned the allotment order in pursuance of which petitioner took possession of the premises in dispute. Thus the question to find the root of the cause which occasioned (a) the vacancy and (b) an allotment order in favour of the petitioner. The procedure which gives rise to an information upon a vacancy in the premises is set to Rule 8. 3. Unfortunately, the petition is silent on who intimated the vacancy. The Court sought this information from learned counsel for the petitioner and desired to have on record the report of the Inspector on the basis of which he set about to inspect the premises in dispute upon receipt of information that vacancy had occurred. 3. Unfortunately, the petition is silent on who intimated the vacancy. The Court sought this information from learned counsel for the petitioner and desired to have on record the report of the Inspector on the basis of which he set about to inspect the premises in dispute upon receipt of information that vacancy had occurred. Upon the Court seeking the record a certified copy of the report of the Inspector from the office of Rent Control and Eviction Officer was produced before the Court. This report bears out that upon an information given by one Mrs. Kanta Gupta, the Inspector set out to verify whether the premises in question were vacant or not. Mrs. Kanta Gupta is no other than the petitioner. Thus the origin of the declaration of vacancy is an information supplied by the petitioner; she is interested in the accommodation. With this knowledge the Inspector set out for an inspection under Rule 8. 4. No notice was given to the landlord of an inspection which was made in pursuance of an exercise to ascertain vacancy in the premises. The landlord was not present as she could not be when the inspection of the premises was caused on 2nd May, 1985 she was without notice of it. The Inspector records that he found a restaurant running at the premises. The name of the restaurant was 'Marwari Bhoj' and it was intimated to him that it was a business venture between Trilok Chand and the petitioner. The Inspector further records that as a consequence of his inspection he has come to the conclusion that the landlord has permitted the premises to be occupied by the aforesaid Trilok Chand, which act is illegal under Section 12 of the Act aforesaid. According to him, thus, a vacancy had occurred. At this stage it is appropriate to see Section 12 in reference to the context : "12. According to him, thus, a vacancy had occurred. At this stage it is appropriate to see Section 12 in reference to the context : "12. Deemed vacancy of building in certain cases : (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if (a) he has substantially removed his effects therefrom, or (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of non-residential 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........." On the inspection report the Rent Control and Eviction Officer on 6th May, 1985, made an endorsement to the effect that "the vacancy be declared. For objections fixed 20.5.1985. Let all concerned be intimated" (English translation). 5. It is accepted at the Bar on behalf of the petitioner that after the aforesaid order of the Rent Control and Eviction Officer allotment proceedings were initiated and the next step was to consider objections on 20th May, 1985. It is not denied that the matter was not exhibited on the notice board as required under Sub-rule (2) of Rule 8 aforesaid Rule 8 is reproduced : "8. Ascertainment of vacancy [(Sections 12, 16 and 34 (8)] : (1) The District Magistrate shall before making any order of allotment or release in respect of any building which is alleged to be vacant under Section 12 or to be otherwise vacant or to be likely to fall vacant, get the same inspected (2) The inspection of the building as far as possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be posted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such posting, and if in the meantime any objection is received, not before the disposal of such objection..........." Immediately after 20th May, 1985, the date mentioned in the order of the Rent Control and Eviction Officer, an allotment order was passed on 21st May, 1985. 6. The prelude to declaring a deemed vacancy or ascertaining vacancy and the making of an allotment order, are proceedings prescribed under the Act and the Rules, aforesaid. The exercise requires that : (a) Before an inspection, the presence of persons mentioned in Rule 8(2), so far as possible be ensured; (b) there must be an ascertainment of vacancy by inspection (Rule 8(1) : (c) this implies notice to them; (d) an opportunity to object to an order intention to declare vacancy as provided under the first proviso to Section 16(1) aforesaid; (e) the facts set on record of the inspection report should also be elicited from at least two respectable persons of the locality; (f) the inspection report is to be put on the notice board as prescribed; (g) an allotment order is not to be passed before the expiration of three days from the date the notice is published as above; (h) and it is not to be passed (the allotment order) if in the meantime any objections are received and these objections have been considered and disposed; and (i) for the disposal of the objections the objector will have an opportunity to adduce evidence. Thus if Rule 8 aforesaid, and its procedure is examined with the circumstances of the present case, then the aforesaid rule was violated with impunity. The vacancy was declared illegally, likewise an illegal allotment order was made. Thus if Rule 8 aforesaid, and its procedure is examined with the circumstances of the present case, then the aforesaid rule was violated with impunity. The vacancy was declared illegally, likewise an illegal allotment order was made. The facts on record, and not disputed are that before the exercise to consider vacancy or the allotment order, the landlord's presence was not ensured as she was without notice of inspection; the facts set on record had not been elicited from at least two persons, much less to respectable persons of the locality; the inspection report was not on the notice board; the allotment order without a public notice or any other notice to landlord; the date fixed for objections was 20th May, 1985 and the allotment order was passed the next day, 21st May, 1985. 7. The act of declaring vacancy in a premises or subjecting it to allotment under the Act aforesaid has to conform to the procedure prescribed. None of these acts can be occasioned without notice to the owner or landlord of the premises. Either of these acts, if without notice to the landlord, are illegal. The Supreme Court has declared it so in the case of Yogendra Tiwari v. District Judge, Gorakhpur and others, AIR 1984 Supreme Court 1149 and reiterated this view in its recent decision of Dr. Smt. Keshav Devi v. Girdhari Lal Paliwa and others, AIR 1987 Supreme Court 22. 8. On behalf of the petitioner these circumstances have been attempted to be explained. It has been suggested at the Bar that a vacancy had rightly been declared in pursuance of the report by the Inspector of 2nd May, 1985 as the landlord had, after the premises had been released to her, permitted it to be occupied by a person who was not a member of the family. It was submitted hat notwithstanding that there was a partnership deed between the landlord and Trilok Chand in the business of running a restaurant known as "Marwari Bhoj" the landlord could not as a partner, a person who was not a member of her family. It was suggested that as the landlord has taken a partner to run the restaurant business, thus in reference to Section 12 there is a deemed vacancy as the landlord cannot take a partner who is not a member of her family. This argument is misconceived. It was suggested that as the landlord has taken a partner to run the restaurant business, thus in reference to Section 12 there is a deemed vacancy as the landlord cannot take a partner who is not a member of her family. This argument is misconceived. The fact that there is a partnership between the landlord and one Trilok Chand in running a restaurant business has not been denied and is accepted as a matter on record. 9. The constraints in Section 12 are not upon the landlord but on the tenant, in reference to the context. It is the tenant who in the case of non-residential building cannot taken a person, as partner in business, who is not member of his family. Should the tenant do so there would be deemed vacancy and by implication a tenant would be deemed to have ceased to have occupied the building. There is no restriction upon the landlord in reference to a non-residential building, to make use of it in running a business with a partner whether a member of his family or not. Coincidentally, it is difficult for the Court to ignore a decision of this Court on this proposition. The decision was delivered by Hon'ble K.M. Dayal, J., as the then was, and reported Har Prasad v. 3rd Additional District Judge, Kanpur and others, 1982 All L.R. 119. It is a privilege for this Court to hear Mr. K.M. Dayal, as Senior Counsel, Advocate, to advance the proposition otherwise than in the aforesaid decision. In this case the High Court held the provisions of Section 12(2) as being applicable to a tenant; though prospectively from the date of enforcement of U.P. Act No. XIII of 1972. In another decision reported Sagir Ahmad v. District Judge, Agra and others 1981 Alld. (sic) Cases 159 , this Court took the view that the bar of taking a partner in reference to Section 12 of the Act, is only against a tenant and not the landlord. These decisions have been noted by the learned District Judge, in revision. 10. The very foundation of declaring a vacancy of the manner in which vacancy was ascertained and recommended by the Inspector in his report of 6th May, 1985 is illegal and without jurisdiction. Trilok Chand, a name mentioned in the Inspector's report was none other than the partner of the landlord in the restaurant business. 10. The very foundation of declaring a vacancy of the manner in which vacancy was ascertained and recommended by the Inspector in his report of 6th May, 1985 is illegal and without jurisdiction. Trilok Chand, a name mentioned in the Inspector's report was none other than the partner of the landlord in the restaurant business. The business of running restaurant by an arrangement of partnership was in a non-residential accommodation. These premises were inspected for ascertainment of a deemed vacancy. Both the Inspector and the Rent Control and Eviction Officer forgot that only a tenant has been restrained from inducting any person into a non-residential accommodation i.e. if a partner is other than a member of his family. There is no restraint upon a landlord to utilise a non-residential accommodation in partnership no matter who the partner is whether a member of the family or not. 11. It was then suggested on behalf of the petitioner that this Court may examine the partnership deed as the deed is not bonafide and it was submitted that the partnership is surreptitious. The petitioner does not deny that there was a partnership. This Court cannot examine the facts of the partnership when the learned District Judge has even done this, and upon a perusal of the details of the partnership deed between the landlord and Trilok Chand came to the conclusion that it not fake. Upon perusal of the partnership deed the learned District Judge came to the conclusion that the fact that there are lesser obligations on the landlord in the partnership deed than on Trilok Chand in the business of running the restaurant is no ground to hold that the partnership is not bonafide. The learned District Judge was of the view and rightly, that was what the parties had contracted between themselves. 12. The last argument which was made was that before the allotment order was made, the landlord had notice of the allotment proceedings and the District Judge, had erroneously held that she was without it. This argument cannot be accepted. The learned District Judge his committed no error on being satisfied that the landlord was without notice of the allotment proceedings. The last argument which was made was that before the allotment order was made, the landlord had notice of the allotment proceedings and the District Judge, had erroneously held that she was without it. This argument cannot be accepted. The learned District Judge his committed no error on being satisfied that the landlord was without notice of the allotment proceedings. The learned District Judge upon a careful scrutiny of facts came to the conclusion that even if it was accepted that a peon had attempted to effect service of notice upon the landlord even then a solitary report of the report which can be accepted by the Court to the effect that notice had in fact been served and not accepted. The learned District Judge says that in case it was stated that notice had not been accepted, then the process server should have pasted the notice in front of the landlord's house and verified this fact with the report of two witnesses of the locality and this had not been done. The District Judge felt that it was not possible to accept a mere report of a peon alleging that notices were served but not accepted. The learned District Judge was not wrong in being dissatisfied of the manner in which notice was alleged to have been served. The observations of the learned District Judge in not accepting the service of notice are in keeping with the spirit of the mode of service of notice as laid down in Order 5, Rules 17 and 18 of the Code of Civil Procedure. 13. Trilok Chand was a partner along with landlord in the business which runs a restaurant known as "Marwari Bhoj". He abandoned the occupation of the premises and permitted it to be occupied by the petitioner notwithstanding the controversy that the allotment order in favour of the petitioner has been found to be illegal by the District Judge, which decision is correct. There is personal interest which the petitioner has in the accommodation. It is for this reason that the District Judge observed that the allotment order was occasioned in a clandestine manner. The petitioner is Trilok Chand's sister. This is on record of the order of the District Judge which has been impugned a fact not denied. This is also on record in the short counter affidavit filed before this Court by the respondent landlord. The petitioner is Trilok Chand's sister. This is on record of the order of the District Judge which has been impugned a fact not denied. This is also on record in the short counter affidavit filed before this Court by the respondent landlord. The petitioner is now carrying on the restaurant business against the wishes of the landlord. The petitioner legally objects to the occupation of the premises by Trilok Chand. She calls this act of the landlord irregular and is instrumental in initiating proceedings, firstly for a deemed vacancy and consequently an allotment. But, she has no hesitation in carrying on the same business, which according to her was illegally being carried on by the landlord. 14. Trilok Chand may have obtained occupation of the premises but so far as he was in the restaurant business it was with the consent of the landlord and in partnership with her. The induction of the petitioner into the premises in question is illegal and an action which is not clean as the allotment order has been passed by violating every principle under the law. Trilok Chand, a kinsman of the petitioner occasioned a vacancy without intimation to the landlord. The landlord remained ignorant of a deemed vacancy in the premises which is occupied with a business venture in which the landlord has an interest. The business is passed on to a stranger being Trilok Chand's sister who is the petitioner. The occupation is attempted to be given a certificate of legality by an allotment order which is not in accordance with law. The details have already been given above and are not being repeated here. 15. The learned District Judge has arrived at a correct decision in the impugned judgment of 20th May, 1987 (a) quashing the allotment order of 21st May, 1985 and (b) declaring that there is no deemed vacancy in the premises in question. 16. A portion of the learned District Judge's order in the last sentence reads "Let the record be sent back to A.D.M. (CS)/Delegated Authority, Meerut to dispose of the allotment application afresh according to law". This part of the direction of the learned District Judge is being corrected by a writ, order or direction in the nature of certiorari. 16. A portion of the learned District Judge's order in the last sentence reads "Let the record be sent back to A.D.M. (CS)/Delegated Authority, Meerut to dispose of the allotment application afresh according to law". This part of the direction of the learned District Judge is being corrected by a writ, order or direction in the nature of certiorari. This direction is otherwise not compatible with the correct judgment which the District Judge has delivered by declaring that '(a) the allotment is illegal and (b) no deemed vacancy has occurred in the premises'. As the judgment has been certified to be correct and there is no vacancy in the premises and an erroneous allotment order has been quashed as illegal there is no occasion to send the record back to the Additional District Magistrate (C)/Delegated Authority to exercise any powers on the allotment application afresh. The application for allotment stands disposed of ipso facto, as there was never any vacancy in the premises in dispute. The premises, shall remain released to the landlord alongwith possession, consistent with the situation that there is no vacancy and thus no allotment application can be entertained in a reference to these premises in the facts and circumstances of the present case. 17. The petition is thus dismissed with costs.