JUDGMENT S.H.A. Kaza, J. - Aggrieved against the order dated 2-4-88, contained in Annexure 9, by means of which the Additional City Magistrate, (Rent Control) Lucknow, opposite party no. 2 declared vacancy of the shop in question under Section 12(1)(b) of the U.P. Urban Buildings (Regulation, Letting and Eviction) Act, 1972, (hereinafter called the 'Act' the petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India by preferring the present writ petition. 2. The dispute relates to a shop, situated in a building bearing no. 222/2, Raja Bazar, Lucknow which is owned by opposite party no. 1. In the said building there are three shops in the use and occupation of Sarva Sri Munna Lal, Rajaram and the petitioner in which they carry on the business of manufacture and sale of Batasa, Reori and milk products. 3. It was averred in the writ petition that one shop in question was previously in the tenancy of one Buddhu Lal who used to carry on the business of manufacture and sale of Batasa. Reori etc. As he was alone and aged he sustained loss in the business. Hence, he entered into an agreement with the petitioner on 25-12-71 and started business of milk and milk products with the petitioner in partnership. The said Buddhu Lal, who was issueless, died in the month of January, 1983 at the age of 85 and since then me petitioner alone was carrying on the said business. It was averred that since the petitioner entered into partnership with Buddhu Lal he has been paying rent to opposite party no. 1. 4. It was further averred that opposite party no. 1 who is a lawyer, preferred an application under Section 16(1)(b) of U.P. Act No. 13 of 1972 before the Additional District Magistrate (E). Lucknow, that as the shop in question, after the death of Buddhu Lal, had fallen vacant it might be released to him for the purposes of opening a lawyer's chamber in the said shop. The opposite party no. 2 who is Additional City Magistrate (II) (Rent Control), Lucknow, called for a report of the Inspector. On 8-6-83 the Inspector submitted the report in which he stated that at the time of inspection the petitioner was found to be carrying on the business of milk and curd etc., in the shop in question. The opposite party no. 2 who is Additional City Magistrate (II) (Rent Control), Lucknow, called for a report of the Inspector. On 8-6-83 the Inspector submitted the report in which he stated that at the time of inspection the petitioner was found to be carrying on the business of milk and curd etc., in the shop in question. The tenancy was in the name of Buddhu Lal with whom the petitioner, since last 7 or 8 years, was carrying on partnership business and after his death, 2 or 3 months back, he has been carrying on the said business. He further stated that Buddhu Lal had a nephew who lives in Daliganj. The Inspector further stated that the landlord disclosed to him that rent since January, 1983 was due and when the landlord went to realise the rent it transpired that Buddhu Lal had expired and the petitioner had been in occupation of the said shop in unauthorised manner. The landlord further disclosed to him that he is a lawyer by profession and he want; to run his chamber in the shop in question. Adjacent to the shop lie has a house is in which his elder brother resides but as the house is in a lane the vehicles cannot reach the house. He lives in a house which is situate at Kachcha Hata, Lucknow in which he has a share. In the said house at Kachcha Hata he has his chamber. He had issued receipt to Buddhu Lal for realisation of rent in the month of December, 1982. 5. It is further averred in the writ petition that neither in the release application nor in the affidavit forming part of the release application it was mentioned that since when the shop in question was occupied by the petitioner. 6. The petitioner filed objection against the release application that prior to coming into force of U.P. Act No. 13 of 1972 the petitioner had taken the shop in question and doing business in partnership, as such the shop in question cannot be said to be vacant in the eye of law and the provisions of Section 12 of U.P. Act No. 13 of 1972 are not attracted because Sub Clause (2) is prospective in nature. In support of his contention that he had been carrying on the partnership business with said Buddhu Lal, an agreement which is in the nature of partnership deed was filed by the petitioner. The petitioner also filed affidavit of witnesses in whose presence the said agreement was alleged to have been executed. He also filed a detailed affidavit in support of his objection. But in spite of evidence adduced by him, the opposite party no. 2 declared the shop in question as vacant. 7. The main thrust of the argument of the learned counsel for the petitioner is that Sub-section (2) of Section 12 of the Act, which reads as under, is prospective in nature :- "12(2). 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." 8. It was further averred that the case of admission of partners before the commencement of the Act does not fall within the ambit of sub-section (2) of Section 12 of the Act. The present section brings in its ambit only such cases where a person is admitted as a partner who is not a family member of the tenant after the commencement of the Act and in this regard the petitioner's counsel relied on Kishan Lal and others v. The State of U.P. 1976 AWC, 1; Keshar Bai v. The District Judge Mathura, 1980 ARC 223 (Full Bench), and Prakash Chand Jain v. M/s Jai Narain Ravindra Kumar and others, 1984(2) ARC, 24. 9. In the aforesaid precedents it we held that sub-section (2) of Section 12 is prospective in nature and does not create vacancy if admission of partner is made before the commencement of the Act No. 13 of 1972. The grievance of the petitioner is that without considering the aforesaid precedence the opposite party no. 2 declared the shop in question as vacant. 10. In the case of Smt. Keshar Bai (supra) the Full Bench observed :- "The next point to be determined is with regard to interpretation of Section 12(2). in this provision the legislature has used the word 'admits'. 2 declared the shop in question as vacant. 10. In the case of Smt. Keshar Bai (supra) the Full Bench observed :- "The next point to be determined is with regard to interpretation of Section 12(2). in this provision the legislature has used the word 'admits'. The use of 'admits' is indicative of its intention to provide for a deemed vacancy in a case of non-residential building, where a tenant carrying in business in the building admits a person who is not a member of his family as a partner or a new partner. Even applying the literal interpretation it will not be possible to hold that Section 12(2) covers a case of taking a person as a partner before the enforcement of the U.P. Act No. 13 of 1792. A full bench of this Court was called upon to interpret Section 12(3-A) in Civil Misc. Writ No. 750 of 1979, Khubi Singh Yadav and others v. The District Judge, Allahabad and others, decided on January 21, 1980. It held that sub-section (3-A) of section attracted only where the event of transfer took place after the coining into force of Amending Act No. 28 of 1976 on July 5, 1976. This provision was not retrospective in operation. The view taken in that case applies with full force to the interpretation of sub-section (2) of Section 12." "It may be useful to point out that a controversy relating to taking a partner in his business and carrying it on along with him came up for decision under the old Act. The consistent view of this Court had been that a tenant was entitled to use a premises for whatever business he liked. The position of a partner will only be that of a licence. He could not be deemed to be a sub-tenant. For proving sub tenancy, what was necessary to establish was that some rights in the tenancy must have been transferred in his favour." "It would, thus be found that under the old Act, the position was altogether different. The view was that a mere creation of partnership in the business did not necessarily create any interest in the tenancy and that upon the facts of each case, it had to be seen whether any transfer of interest had been created in the tenement. The view was that a mere creation of partnership in the business did not necessarily create any interest in the tenancy and that upon the facts of each case, it had to be seen whether any transfer of interest had been created in the tenement. Under sub-section (2) of Section 12, however, it is not necessary whether any interest in the tenancy was created. Mere taking of a person as a partner or a new partner is a ground in itself to attract sub-section (2) of Section 12. But as already pointed out above, the use of word "admits" in Section 12(2) shows that the case of admission of partners before the commencement of the Act does not tall within its purview, it takes within its ambit only these cases where a person is admitted as a partner, who is not a family member of the tenant, after the enforcement of this Act. So in our opinion, therefore, Section 12(2) is prospective and cannot be applied to cases where partners had been taken before the commencement of this Act." "The only point that remains to be considered is about clause (a) of sub-section (1) of Section 12. This is a new ground on the basis of which a vacancy can be deemed to have occurred. Such a provision did not find any place in the old Act. From the phraseology used in this section and the context, this provision appears to be prospective and will not apply to cases of removal of effects before the Act. Since this question is covered by the decision in Mangi Lal's case (Supra) we need not state the reasons in this judgment for agreeing with the view taken in that case. This clause is, therefore, prospective." 11. The question as to whether the partnership is genuine transaction and not a cloak to conceal transfer of possession from a tenant to another, is still relevant for purposes of deciding as to whether the partnership existed or not. The present Act puts an embargo to the effect that if a partner or a new partner who has been admitted in partnership business is not a member of the family of the tenant, the tenant shall be deemed to have ceased to occupy the building. The present Act puts an embargo to the effect that if a partner or a new partner who has been admitted in partnership business is not a member of the family of the tenant, the tenant shall be deemed to have ceased to occupy the building. This sub-section was introduced in the present Act to put up a check upon the tenants of non-residential buildings to sub-let the accommodation in an unauthorised manner camouflaging the same into a partnership business. But if partnership is a bona fide and not a camouflage for sub-letting and where an application is preferred by the tenant before the admission of such a partner, the District Magistrate can allot the same afresh to the newly constituted or reconstituted firm under provision (1) to sub-rule (7) of Rule 10 of the present Act. 12. It is pertinent to mention here that under the old Act, as was rightly observed by the Full Bench in Keshar Bai (supra) mere creation of partnership in business did not necessarily create any interest in the tenancy and that upon the facts of each case, it has to be seen whether any transfer of interest has been created in the tenement. Thus the law is very clear on the point that sub-section 2 of Section 12 of the present Act is prospective in nature and cannot be applied to the case where partners have been taken before the commencement of the Act. Although the old Act did not put any embargo on a tenant to enter into partnership business with another, but it has to be seen as to whether the partnership is a genuine transfer and not a clock to transfer of possession from one tenant to another. This is a mixed question of fact and law and it was not always easy to find out whether or not the partnership was a genuine transfer or a device to camouflage the illegal sub-letting. 13. The opposite party no. 2 after carefully examining the said agreement which provided the delivery of exclusive (sic) of the shop, maintenance of accounts and running of the business in shop in question and payment of rent exclusively to the petitioner, found that the partnership agreement was not a bona fide one but was simply a cover to sub-let the shop in favour of the petitioner. The opposite party no. The opposite party no. 2 further gave a finding to the fact that it was not provided as to how much money was invested by late Buddhu Lal as well as the petitioner in the said partnership business. It was also provided in the agreement that the petitioner will maintain monthly accounts but no account was produced before the court, hence the opposite party no. 2 came to the conclusion that sub-letting had been camouflaged into partnership which was not a bona fide transaction. 14. From the averments made it is established that Buddhu Lal, till December, 1982, paid the rent and after his death there existed nothing on record that the rent was paid. The firm never paid any rent not it was accepted. The petitioner has failed to prove that any tenancy was created in favour of the Firm. It is more or less admitted that no document pertaining to said partnership business i.e. the account books, sales tax assessment in favour of the alleged firm, was produced before the court which proved beyond any shadow of doubt that any partnership ever existed. 15. The opposite party no. 2 had given a detailed finding in which it was indicated that the alleged partnership was simply a cover to sub-let the premises in question. It was also urged that this Court while hearing the writ petition under Article 226 of the Constitution of India cannot up-set the finding of the fact recorded by the opposite party no. 2. 16. A perusal of the order passed by the opposite party no. 2 clearly indicates that the alleged partnership was not a bona fide transaction. Except the agreement no document was adduced to support the contention that any partnership existed between the erstwhile tenant Buddhu Lal and the petitioner. It was alleged in the writ petition that Buddhu Lal expired in the month of January, 1983 after coming into force the present Act. If there existed any partnership between the petitioner and late Buddhu Lal, either the petitioner or late Buddhu Lal could have made an application to admit the petitioner as partner before the District Magistrate and the District Magistrate could have allotted the said premises afresh to the said Firm under proviso (1) to sub-rule (7) of Rule 10 of the Rules framed under the Act, but no such application was ever moved. The object of the alleged partnership was simply to cover the sub-letting of the premises in question in an unauthorised manner in the guise of partnership with the petitioner. The opposite party no- 2 has given a well balanced order which does not require any interference by this Court. 17. The writ petition is devoid of merits and is accordingly dismissed. However there shall be no order as to costs.