SUDHIR NARAIN, J. ( 1 ) THIS writ petition is directed against the order of the respondent No. 1 dated 8. 5. 1985 whereby the disputed shop was held to be vacant. ( 2 ) THE factual matrix of the case is that one Radhey Shyam was owner of the shop of which Ram mohan was a tenant. Ram Mohan died on 13. 9. 1965 leaving behind him five sons, four daughters and his widow as his heirs and legal representatives. Dhruv Narayan. petitioner No. 2 is one of his sons and Smt. Sharda Devi is one of his daughters. Vijay Kuinar, petitioner No. 1 is husband of Smt. Sharda Devi. Radhey Shyam, the landlord filed Suit No. 454 of 1966 against the heirs of Ram Mohan for recovery of arrears of rent, ejectment and damages with the allegations that after the death of Ram Mohan. his heirs became tenants of the disputed shop. They have sublet it to Vijay Kumar. husband of Smt. Sharda Devi. the daughter of the tenant. The defendants contested the suit. The trial court framed an issue as to whether defendants had sublet the premises in suit to Vijay Kumar. The trial court, on consideration of material evidence on record, came to the conclusion that the shop was not sublet to Vijay Kumar by the defendants. On these findings, the suit was dismissed on 13. 12. 1968. ( 3 ) ONE Hariraj Saran filed an application for allotment of the shop in question on the allegations that Vijay Kumar was in its occupation. This application was rejected by the Rent Control and eviction Officer on 26. 5. 1966 holding that Vijay Kumar has been working in partnership with dhruv Narayan son of Ram Mohan and there was no vacancy and the application was rejected by his order on 26. 5. 1966. Radhey Shyam, the owner of the property sold the disputed shop to om Prakash Saraswat, respondent No. 2 by registered sale deed on 16. 6. 1972. After the purchase of the property, he filed an application against the heirs of Ram Mohan on the allegations that he requires the shop to establish his sons in business. This application was rejected by the prescribed Authority on 13. 3,1977. He filed an appeal against this order. The appeal was also dismissed. 6. 1972. After the purchase of the property, he filed an application against the heirs of Ram Mohan on the allegations that he requires the shop to establish his sons in business. This application was rejected by the prescribed Authority on 13. 3,1977. He filed an appeal against this order. The appeal was also dismissed. He further filed Writ Petition No. 1560 of 1977 in this Court which was dismissed on 2. 11. 1979. ( 4 ) THE landlord-respondent No. 2 after dismissal of his application under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (in short the Act) filed the application for release under Section 16 (1) (b) of the Act with the allegations that the disputed shop be treated as a vacant on the ground that petitioner Nos. 2 and 3 have transferred the possession to Vijay Kumar. petitioner No. 1 and be released In his favour as he needs it bona fide for the purpose of business. The Rent Control and Eviction Officer rejected this application by his order dated 6. 6. 1983 on the ground that there was no vacancy. Respondent No. 2 preferred a revision against this order. Respondent No. 1 allowed the revision holding that the disputed shop shall be deemed as a vacant as Vijay Kumar, petitioner No. 1 is also carrying on business in it. This order has been challenged in the present writ petition. ( 5 ) I have heard the learned counsel for the parties. ( 6 ) THE core question is whether on the facts and circumstances of the case, the shop in question shall be deemed as vacant. There are two aspects- (1) who are the tenants of the disputed shop and (2) whether such tenants have either vacated the shop or it should be deemed as a vacant within the meaning of Section 12 of the Act. Radhey Shyam, the erstwhile landlord had filed the suit for ejectment against the heirs of Ram Mohan impleading petitioner Nos. 2 and 3 also as his heirs treating them as tenants. Respondent No. 2 after purchasing the property from Radhey shyam. filed an application under Section 21 (1) (a) of the Act against the heirs of Ram Mohan, the deceased tenant impleading petitioner Nos. 2 and 3 as tenants. 2 and 3 also as his heirs treating them as tenants. Respondent No. 2 after purchasing the property from Radhey shyam. filed an application under Section 21 (1) (a) of the Act against the heirs of Ram Mohan, the deceased tenant impleading petitioner Nos. 2 and 3 as tenants. ( 7 ) ADMITTEDLY Ram Mohan was a tenant of the disputed shop. After his death, the tenancy rights will devolve on the heirs of the tenant. Section 3 (a) of the Act defines tenant, it defines that a tenant, in relation to a building, means a person by whom its rent is payable, and on the tenants death : (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death ; (2) in the case of a non-residential building, his heirs : the shop in question is a non-residential building. The tenancy right on the death of Ram mohan will be inherited by all his heirs. It is admitted that petitioner Nos. 2 and 3 are his heirs. ( 8 ) THE next question is whether these tenants have vacated the accommodation or the shop in question shall be deemed as a vacant under Section 12 of the Act. Ram Mohan was admittedly carrying on business in the disputed shop. Respondent No. 2 filed application for release impleading the petitioners as parties in the application. They filed objection and in support of their objection, they filed affidavits and other evidence. Dhruv Narayan filed affidavit, a copy of which is Annexure-8 to the writ petition. He categorically stated that he was carrying on business of arohat in partnership with Vijay Kumar, husband of Smt. Sharda Devi, the daughter of the deceased tenant Ram Mohan since prior to the enforcement of the Act. Vijay Kumar filed affidavit stating that his wife Smt. Sharda Devi is tenant of the disputed shop and he had been sitting in the shop on her behalf and he is not sub-tenant of the disputed shop. Smt. Sharda Devi also filed an affidavit and in para 2 of the affidavit, it was categorically stated that her husband vijay Kumar is sitting in disputed shop and is carrying on business on her behalf. He had already been working in partnership with his brother Dhruv Narayan. Smt. Sharda Devi also filed an affidavit and in para 2 of the affidavit, it was categorically stated that her husband vijay Kumar is sitting in disputed shop and is carrying on business on her behalf. He had already been working in partnership with his brother Dhruv Narayan. ( 9 ) THE Rent Control and Eviction Officer found that the disputed shop cannot be deemed as a vacant as the tenants were themselves carrying on business in the disputed shop. This finding has been reversed by the revisional court taking the view that it has not been proved that the partnership business was being carried on by Vijay Kumar and Dhruv Narayan after the death of ram Mohan in the said shop. Vijay Kumar being the son-in-law of Ram Mohan is not a member of his family. Smt. Sharda Devl is daughter of Ram Mohan and Vijay Kumar, her husband is not entitled to carry on business in the said shop. The view taken by respondent No. 1 is manifestly erroneous in law. Smt. Sharda Devi and Dhruv Narayan are admittedly tenants. Dhruv Narayan is carrying on business in the shop in question. Smt. Sharda Devi categorically stated that her husband is carrying on business in partnership with Vijay Kumar on her behalf. Ram Mohan. the tenant was admittedly carrying on business in the disputed shop after his death the same business is alleged to be carried on in the disputed shop. If the tenants are carrying on business in the shop and the husband of one of the tenants is carrying on business on her behalf in the disputed shop it cannot be held to be vacant. ( 10 ) THE meaning of the word "occupation" referred to in clause (D) of sub-section (1) of Section 12 of the Act must relate to exclusive occupation of a person who is not a member of the family. Dhruv Narayan is carrying on business but he has not transferred the possession of the shop exclusively to Vijay Kumar. the husband of Smt. Sharda Devi. Secondly, if the tenant has transferred the possession to any person who is not a member of the family, it can be deemed as a vacant but when such person carried on business who is himself a family member of the tenant, it cannot be deemed as a vacant. the husband of Smt. Sharda Devi. Secondly, if the tenant has transferred the possession to any person who is not a member of the family, it can be deemed as a vacant but when such person carried on business who is himself a family member of the tenant, it cannot be deemed as a vacant. The word family has been defined under Section 3 (g) of the act. which includes a spouse. Vijay Kumar, the husband of Smt. Sharda Devi. the tenant is her family member. In these circumstances, the disputed shop cannot be treated as vacant in law. ( 11 ) IN view of the above, the writ petition is allowed and the order dated 8. 5. 1985 is hereby quashed. ( 12 ) IN the facts and circumstances of the case, however, the parties shall bear their own costs. .