JUDGMENT S.P. Srivastava 1. Being aggrieved by an order passed by the respondent no. 1 declaring the premises in question to be vacant and available for allotment/release in the proceedings under section 16 read with section 12 of the U. P. Act. no. 13 of 1972 the petitioner-tenant has approached this Court by means of this writ petition for redress seeking the quashing of the aforesaid order. 2. The facts necessary for the disposal of this writ petition lie in a narrow compass. The petitioner is a practising lawyer and had been utilishing the accommodation in dispute in connection with his legal profession as a chamber, ft appears that the petitioner had moved an application seeking allotment of the accommodation in dispute in his favour alleging that the said accommodation was to be deemed to be vacant as the said accommodation was being occupied by the landlord without an order of release in his favour who was running a business in cloth were in the name of his mother Smt Krishna Devi. On the receipt of the aforesaid application the Rent Control and Eviction officer issued a notice requiring the concerned parties including the sitting tenant to be present at the premises in dispute on 2-3-83 on which date local inspection was to be done. The Kent Control Inspector submitted a report dated 7-3-84 wherein it was stated that the inspection of the premises in dispute was done by him on 3-3-84. In his report the Inspector has noted the presence of several persons at the time of inspection excepting the sitting tenant. In his report the Rent Control Inspector stated that the wife of the sitting tenant was running a cloth business in the premises in dispute for the past two years and ten months. He noted in his report that one Mukesh Kumar was present in premises who disclosed himself to be the servant of Smt Krishna Devi who used to sit in the shop occasionally. It was further reported that no chamber of a lawyer was being run in the said premises. The Rent Control Inspector, however, recommended that the decision about the existence or otherwise of the vacancy in respect of the accommodation in dispute be taken after summoning the parties concerned and affording them an opportunity of being heard. It was further reported that no chamber of a lawyer was being run in the said premises. The Rent Control Inspector, however, recommended that the decision about the existence or otherwise of the vacancy in respect of the accommodation in dispute be taken after summoning the parties concerned and affording them an opportunity of being heard. On coming to know of the aforesaid report, the petitioner submitted an objection asserting that the report was absolutely wrong and had been submitted in flagrant disregard of the mandatory requirements as envisaged under rule 8 of the Rules framed under the Act which contemplate an inspection in the presence of the sitting tenant/occupant, It was pointed out in the objection that although in the notice dated 25-2-89 it has been specifically mentioned that inspection shall be done on 2-3-84 no inspection was done on that date and no information at all was given to the sitting tenant on 3-3-84 when the premises in dispute were allegedly inspected. In his objections the petitioner asserted that the premises in dispute was being continued to be utilised as a chamber of the objector and his law-books and files of the cases were already lying there. However it was further asserted that the business of cloth was being carried on in a portion of the said accommodation by his wife Smt. Krishna Davi. In the aforesaid proceedings the prospective allottees the landlord as well as the sitting tenant were given fall opportunity to lead evidence in support of their respective cases. The Rent Control and Eviction Officer himself inspected the premises in dispute as is apparent from his inspection report dated 11-4-84. In his inspection report the Rent Control and Eviction Officer noted that the disputed accommodation was being utilised for tunning the business in the name and style of Krishna Vastra Bhandar and that there was no name-plate showing that the premises was being utilised as a Chamber of any lawyer. However it was noted that in the premises in dispute in a portion thereof some law-books were also being kept and certain old files of cases were also there. However it was noted that in the premises in dispute in a portion thereof some law-books were also being kept and certain old files of cases were also there. It was also noted that a cashmemo dated 1-3-84 was brought to his notice which did not bear the signature of any person After affording an opportunity of hearing to the parties concerned, the Rent Control and Eviction Officer came to the conclusion that the tenant had established the shop in the name of his wife which was being run by the landlord. Being of the view that the tenant was not utilising the accommodation in dispute for the purposes of running his Chamber and it was the landlord who was running the cloth business therein, the Rent Control and Eviction Officer came to the conclusion that the conditions contemplated under section 12 of the U. P. Act no. 13 of 1972 stood satisfied in the present case and the premises in dispute was liable to be declared vacant. The premises in dispute was, therefore, declared as vacant under the impugned order. 3. During the pendency of the writ petition a supplementary affidavit was filed by the petitioner annexing therewith the true copy of the affidavit filed by the landlord Priya Datt in the proceedings as well as the true copy of the reply of Sri C. D. Misra. Advocate the sitting tenant which had been filed in the proceedings giving vise to the petition. Inspite of sufficient opportunity having been afforded, no counter affidavit has been filed by the respondents in reply to the aforesaid supplementary affidavit denying or controverting the assertions made therein. 4. I have heard Sri P.M. Misra for the petitioner and Sri Yogesh Agrawal for the newly impleaded respondent no. 4 the prospective allottee. Learned counsel for the petitioner has asserted that in the facts and circumstances, proved and established on record in the present case, there could be absolutely no justification for holding the;] premises in dispute to be deemed to have become vacant and the conclusions reached by the Rent Control and Eviction Officer in this regard are manifestly erroneous and based on absolutely wrong assumptions which justify the quashing of the impugned order. 5. 5. Learned counsel for the respondent on the other has urged that the mere fact that the tenant had substantially removed his effects from the premises in dispute and had allowed it to be occupied by a person who was not a member of his family was more than sufficient for deeming the tenant to have ceased to occupy the building; in question attracting thereby the provisions contained in section 12 (4) of the U. P. Act no. 13 of 1972 and the conclusion of the Rent Control and Eviction Officer to the effect that the building in question was to be deemed to be vacant for the purpose of Chapter III of the Act does not suffer from any such infirmity which may justify any interference by this Court. 6. I have given my anxious consideration to the rival contentions of the learned counsel for the parties ami have carefully perused the impugned order and the relevant record. As pointed by this Court in its decision in the case of Ganpat Roy v. Additional District Magistrate. 1992 (2) ARC 494 the word 'occupy' as used in section 12 (1) (b) and section 12 (2) of the Act is quite significant. This word is a word of uncertain meaning and some times denotes legal possession in the technical sense:. However, at other times it denotes nothing more than the physical presence in a place for a substantial period of time. Its precise meaning in any particular statute must depend on the purpose in which and the context in which it is used. Under the scheme of U. P. Act No. 13 of 1972 the word 'occupy' as used in section 12 (1) and 12 (2) of the Act appears to have been made connoting different meanings. This word so far as section 12 (1) (b) is concerned denotes physical possession while the word as used in section 12 (2) of the Act denotes legal possession in the technical sense. It was clearly observed In the case of Ganpat Roy (Supra) that in order to attract section 12 (b) it has to be established that the tenant has allowed the demised premises or any part thereof to be physically occupied by any person who is not a member of his family. 7. It was clearly observed In the case of Ganpat Roy (Supra) that in order to attract section 12 (b) it has to be established that the tenant has allowed the demised premises or any part thereof to be physically occupied by any person who is not a member of his family. 7. In the present case, It lis not disputed that the business in the name and style of Krishna Vastra Bhandar which was being run in the premises in dispute was being run on the strength of a licence granted in favour of Smt. Krishna Devi Misra, the wife of the sitting tenant, on the terms and conditions contained in the licence issued by the District Supply Officer, Aligarh. In the report submitted by the Rent Control and Eviction Officer dated 7-3-84 it has been clearly mentioned that it was Smt. Krishna Devi who had been running the business in the premises in dispute and she also used to sit occasionally in the shop. In the affidavit which was filed by the landlord in the proceedings before the Rent Control and Eviction Officer it had been clearly asserted by him that he was not the proprietor of the business being run in the name and style of M/s. Krishna Vastra Bhandar nor had any concern whatsoever with that business. He, however, further asserted that in order to learn the running of business in cloth he was occasionally sitting con an honorary basis with the consent of the tenant in the premises in dispute. He also asserted that the tenant was still utilising the premires in dispute for Chamber purpose and his Library was also there and the business in the name and style of M/s Krishna Vastra Bhandar was being run and managed by Smt. Krishna Devi alone. 8. When the premises in dispute was inspected by the Rent Control and Eviction Officer on 11-4-84, he also found that the business in the name and style of Krishna Vastra Bhandar was being run in the premises in dispute and also found some, law-books being kept in the said premises. As has already been indicated above the only ground on which the premises in dispute was sought to be held vacant as set up by the prospective allottee was that the said premises) was being occupied by the landlord without an order of release. As has already been indicated above the only ground on which the premises in dispute was sought to be held vacant as set up by the prospective allottee was that the said premises) was being occupied by the landlord without an order of release. In support of this assertion the prospective allottee sought to place reliance on a cash memo dated 1-3-84 which according to him was signed by the landlord P. D. Misra. The Rent Control and Eviction Officer who had inspected the premises in dispute on 11-4-84 had clearly noted that the cash-memo which was found on that date in the premises in dispute did not bear the signature of any person. The only documentary evidence relied upon by the prospective allottee in support of his case, therefore was of no use as it could not be connected with Sri P. D. Misra. In view of the report of the Rent Control Inspector as well as the Rent Control Eviction Officer himself which are on record there can be no manner of doubt that Sri P. D. Misra, the landlord could not be deemed to be in exclusive physical possession over any portion of the premises in dispute so as to attract section 12 (1) (b) of the U. P. Act no 13 of 1972. Further the running of the business in a portion of the premises in dispute by the wife of the sitting tenant could not attract the aforesaid provision inasmuch as considering the definition of the word "family' as contemplated under section 3 (g) of the Act Smt Krishna Devi fell within the ambit thereof and consequently it could not be said that the tenant had allowed the premisses in dispute to be occupied by any person who was not a member of his family. So far as the question relating to the accrual of vacancy under section 12 (1) (a) of the Act is concerned suffice it to say that In his affidavit filed by the prospective allottee, there is nothing which could have attracted that provision. A perusal of the affidavit of the prospective allottee shows that the only ground for deeming the accommodation in dispute as vacant put up by him was its occupation by the son of the sitting tenant as envisaged under section 12 (1) (b) and not on any ground envisaged under section 12 (1) (a). A perusal of the affidavit of the prospective allottee shows that the only ground for deeming the accommodation in dispute as vacant put up by him was its occupation by the son of the sitting tenant as envisaged under section 12 (1) (b) and not on any ground envisaged under section 12 (1) (a). In the circumstances therefore, it was not open to the respondent no. 1 to shift the ground for holding the declaration of vacancy in respect of the accommodation in dispute from section 12 (1) (b) to 12 (1) (a) without affording an opportunity to the sitting tenant of being heard is this regard which opportunity does not appear to have been provided. 9. It further appears that there was absolutely no evidence on the record which could establish or lead to an inference that the landlord P. D. Misra was in actual physical possession of any portion of the demised premises as envisaged under section 12 (1) (b) of the Act. The Rent Control and Eviction Officer has altogether ignored that there was no evidence on record which could lead to an inference that the business being run in the name and style of M/s Krishna Vastra Bhandar and its stock-in-trade was owned by Sri P. D. Misra, the landlord. The Rent Control and Eviction Officer has completely misread and misconstrued the affidavit of Sri P. D. Misra and C. D. Misra as well as inspection report of his predecessor-in-office dated 1.1-4-84 which has led to a manifestly erroneous conclusion vitiating the impugned order. 10. The Apex Court in its decision in the case of Harbansh Lal v. Jag Mohan Saran, 1985 (2), ARC 55) had observed that the occupation of a person envisaged under section 12 (1) (b) of the Act cannot possibly include the occupation by any person as the agent of the tenant and that it cannot be conceived that the U. P. Legislature intended a person occupying a building as tenant, to live or operate in such a building with members of his family and no one else. It was further clarified in that case that when a person sits in a premises and carries on a business on behalf of and for the original occupant it cannot be said that the original occupant has thereby, allowed the accommodation to be occupied within the meaning of section 12 (1) (b). It was further clarified in that case that when a person sits in a premises and carries on a business on behalf of and for the original occupant it cannot be said that the original occupant has thereby, allowed the accommodation to be occupied within the meaning of section 12 (1) (b). In its another decision, in the case of Jagdish Prasad v. Smt. Angoori Devi, 1984 (1) ARC 679, the Honourable Supreme Court observed that there may be several situations in which a person other than the tenant may be found sitting in a shop and as long as the control over the premises is kept by the tenant and the business run in the business is of the tenant the question of sub-letting the premises flowing from the presence of a person other than the tenant in the shop cannot be assumed. It may be noticed that the legal fiction comtemplated under the explanation to section 25 relating to sub-tenancy is available only if the ingredients of sections 12 (1) or 12 (2) are satisfied. Obviously, therefore, when the aforesaid factors cannot give rise to a legal fiction of sub-tenancy they cannot give rise to the fiction relating to deemed vacancy envisaged under section 12 (1) (A) or (b) of the Act. The Rent Control and Eviction Officer in his order in question has noted that the tenant had asserted that he was a sleeping partner in the business being run under the licence issued in favour of his wife Smt. Krishna Devi, There is nothing on the record to indicate that Sri P. D. Misra had any control whatsoever in the said business or that the tenant or his wife had vacated the premises in dispute or was not in the control of the business being run in the name and style of Krishna Vastra Bhandar therein. The Rent Control and Eviction Officer appears to have clearly misdirected himself and has ignored the scope and effect of the provisions contained in section 12 of the Act and his approach to the case stands vitiated in law. 11. In the circumstances indicated above, I have no hesitation whatsoever in concluding that the approach of the respondent no. 1 was wholly against the weight of evidence on record and it is impossible to approve the same. 12. 11. In the circumstances indicated above, I have no hesitation whatsoever in concluding that the approach of the respondent no. 1 was wholly against the weight of evidence on record and it is impossible to approve the same. 12. In view of my conclusions indicated hereinbefore this writ petition succeeds and allowing the same, the impugned order dated 26-11-84 is quashed. There shall however, be no order as to costs.