R.H. Zaidi, J. - (1.) BY means of this petition under Article 226 of the Constitution of India, petitioner challenges the validity of the order dated 17.3.1989 passed by respondent No. 1 declaring the building in question as vacant, as well as the order dated 16.2.1991, whereby the objection filed by the respondent No. 1. As stated in the writ petition, the facts are that the proceedings under Section 16 of the U.P. Act No. 13 of 1972, for short 'the Act' were started on the application filed by the respondent No. 2 for allotment of the portion of the house No. 67/118, Canal Road, Daulat Ganj, Kanpur, hereinafter referred as the building in question. It was urged that Sri Ram Chandra Agarwal, who was tenant of the building in question, built his own house and shifted to 87/217, Acharya Nagar, Kanpur in the year 1980 and the building in question was illegally occupied by the petitioner and the same, therefore, vacant in the eye of law and was liable to be allotted. On the application filed by respondent No. 2 the Rent Control Inspector submitted his report to the effect that the building in question was vacant. Respondent No. 1 Rent Control and Eviction Officer, vide his order dated 17.3.1989 declared the building in question as vacant and fixed 27.3.1989 for further orders. In the meanwhile the petitioner filed an application for recalling the order dated 17.3.1989 on the ground that the said order was passed without affording him an opportunity of hearing and that he was a lawful occupant of the building in question. The order dated 17.3.1989, therefore, was liable to be recalled.
(2.) THE Rent Control and Eviction Officer, relying upon the decision in M/s. Trilok Singh v. District Magistrate, Lucknow and others : 1976 (2) ALR 362 (SC), dismissed the objection of the petitioner vide order dated 27.3.1989 holding that the order dated 17.3.1989 was not illegal. Petitioner, thereafter, filed the present petition. Learned Counsel for the petitioner submitted that the petitioner was not afforded an opportunity of being heard before the impugned order declaring the vacancy was passed by respondent No. 1. Therefore, the said order was liable to be set aside. It was further urged that the view taken by respondent No. 1 that the order declaring the vacancy cannot be challenged on the ground that it was passed without affording an opportunity of hearing on the basis of M/s. Trilok Singh's case (supra), was not correct, in view of the subsequent decision of Supreme Court in Ganpat Roy v. Additional District Magistrate : 1985 (11) ALR 423 (SC).
(3.) I have considered the submission made by the learned Counsel for the petitioner.;