R.R.K. Trivedi, J. - (1.) IN this petition counter and rejoinder affidavits have been exchanged. Both the learned counsel for parties have agreed that petition may be decided finally at this stage. Facts giving rise to this petition are that petitioner is tenant of shop in ground floor in House No. 8/204, Arya Nagar, Kanpur City, on rent of Rs. 100/ - per month. This shop was allotted to petitioner by allotment No. 106, dated 10.3.1976. The landlord of the shop in dispute was Smt. Shaila Mitra, mother of respondent No. 3. From the date of allotment, petitioner was continuing as tenant and paying rent. On 2.7.1990 respondent No. 2 moved an application before respondent No. 1 for allotment of the shop in dispute in his favour alleging that same is lying vacant. On this application Rent Control Inspector was directed to make an inspection and submit his report. The Rent Control Inspector submitted his inspection report on 21.7.1990 on which basis Rent Control and Eviction Officer declared the shop in dispute vacant by his order dated 1.8.1990. Thereafter the shop in dispute was allotted in favour of respondent No. 2 vide order dated 7.8.1990.
(2.) AGGRIEVED by the order of the Rent Control and Eviction Officer, petitioner filed a revision under Section 18 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act, registered as Revision No. 130 of 1990. This revision was allowed by learned 8th Additional District Judge, Kanpur Nagar on 27.5.1992 and the case was remanded to respondent No. 1 for deciding afresh in accordance with law. After remand, respondent No. 1 by his impugned order dated 30.5.1994, annexure '9' to the writ petition has again confirmed the order dated 1.8.1990 declaring vacancy. Aggrieved by this order, petitioner has approached this Court under Article 226 of the Constitution of India. I have heard learned counsel for parties. Learned counsel for petitioner has submitted that the impugned order is illegal and arbitrary as no reasons have been recorded for declaring vacancy. Material evidence filed by petitioner and the report of the Rent Control Inspector have been ignored which clearly established that the shop in dispute is not vacant and petitioner is still carrying on his business from the said shop. It has also been submitted that the order dated 1.8.1990 was set aside in revision by learned 8th Additional District Judge by his order dated 27.5.1992. However, respondent No. 1 has illegally assumed that the order dated 1.8.1990 has not been set aside. It has been submitted that petitioner was not given any opportunity of hearing while passing the order dated 1.8.1990. The provisions of R.8(2) of the Rules were not complied with. The order declaring vacancy was a nullity. It has also been submitted that petitioner applied for electric connection in his own name but the landlord respondent No. 3 is creating obstacles and for this reason, the electric connection has not been given and petitioner is running his business with the help of generator. It has been submitted that the impugned order is illegal and arbitrary and suffers from manifest errors of law and is liable to be quashed.
(3.) LEARNED counsel for respondents, on the other hand, has submitted that no revision lies against the order declaring vacancy and hence it could not be set aside in revision against the order of allotment. Reliance has been placed in case of Ganpat Rai versus Additional District Magistrate and others, 1985 (2) A.R.C. 73. The submission of the learned counsel for respondents is that in view of the legal position expressed by Hon'ble Supreme Court, the view taken by the Rent Control and Eviction Officer cannot be said to be illegal as the revisional court had no jurisdiction to set aside the order declaring vacancy in revision against the order of allotment. Learned counsel has further submitted that petitioner has closed the shop. The electric connection was in the name of previous tenant which has been disconnected and thereafter petitioner has not been able to obtain electric connection on which the Rent Control and Eviction Officer has rightly inferred that shop in dispute is vacant as petitioner has closed his business. Vacancy was rightly declared on the basis of the report of the Rent Control Inspector dated 21.7.1990 and the revisional court could not assume jurisdiction to set aside the order declaring vacancy which had already become final. Reliance has been placed in cases of Raghunandan Lal and others versus District Judge, Bulandshahr and others : 1978 A.R.C. 347, Bhawani Shankar v. The District Judge, Tehri Garhwal and others, 1983 (1) A.R.C. 586 and Debi Dayal v. Rent Control and Eviction Officer, Ghaziabad and others, 1983 (1) A.R.C. 63.;