Mam Chandra Agarwal, J. - (1.) BY this petition under Article 226 of the Constitution of India the petitioner challenges an order dated 31.12.991 passed by the Rent Control and Eviction Officer, Kanpur Nagar, declaring the shop in question to be vacant and an order dated 7.10.1992 dismissing the tenant petitioner's application under Section 34 of the U.F. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') read with Rule 22(b). Counter and rejoinder affidavits have been exchanged.
(2.) I have heard Sri A.N. Sinha, learned Counsel for the petitioner and Sri Rajesh Tandon, learned Counsel for the respondents. The petitioner is a tenant on behalf of respondent No. 2 in a shop situate on the ground floor of premises No. 79/10, Latouche Road, Kanpur by virtue of an allotment order dated 6th March, 1974. The respondent landlord has moved an application for release of the said shop in his favour stating that he needs the same for his bona -fide requirements. The said proceedings under Section 21(1)(a) though initiated in the year 1987 and are still pending. The landlord respondent also moved an application under Section 12 and Section 16 before the Rent Control and Eviction Officer alleging that the tenant (petitioner) has stopped his business that was being carried on in the shop in suit and thus, there was a deemed vacancy within the meaning of Section 12 and since he requires the same for his personal need the shop he released in his favour. The Prescribed Authority after issuing notice to the tenant and after getting the shop in question inspected through an Inspector declared the shop to be vacant by the impugned order dated 31.12.1991. The tenant petitioner then moved an application dated 13.1.1992 under Rule 22(b), a copy of the said petition that was accompanied by an affidavit is Annexure '7' to the writ petition. It was stated in the affidavit that no notice of the proceeding was served on the tenant. Rule 22(b) was specifically mentioned in the petition and the prayer was that the Court may be pleased to recall and set aside the order dated 31.12.1991. This application has been rejected by the impugned order dated 7.10.1992. Thereafter the petitioner filed this writ petition. His grievance is that no notice of the proceedings for declaring the shop to be vacant was served on him as required by Rule 8(2) of the Act and that inspection of the shop was not got done in accordance with the Rules. It is also alleged that on 7.10.1992 the Rent Control and Eviction Officer purported to inspect the shop and then passed an order on the same day and that in doing so no compliance of Rules was made. The landlord has filed a counter -affidavit contending that notices were duly served on the tenant petitioner and he has been adopting dilatory tactics with the result that even the landlord's application under Section 21(1)(a) continues to remain pending and that the inspection on 7.10.1992 was made according to Rules.
(3.) LEARNED Counsel for the petitioner placed reliance on Ashok Bhargava v. R.C. and E.O., 1994 (24) ALR 390 in which it was held that where notice was not served on tenant in accordance with Rule 8(2), the order declaring the accommodation to be vacant was illegal. To the same effect is another authority, namely, Kumari Asha Raina v. R.C. and E.O., 1995 (1) ARC 261. Reliance was also placed on B.P. Sewal v. District Judge, 1982 (2) ARC 504, in which it was held that the provisions regarding deemed vacancy under Sections 12(1) and 12(3) of the Act should be strictly complied with. It was also observed that the words 'substantially removed' means something more than the partial removal. Reliance was also placed on Sukhant Gupta v. R.C. and E.O., 1991 (18) ALR 151, in which it was observed that proceedings under Section 12 can be initiated in spite of fact that the proceedings under Section 21(1)(a) are already pending. On the other hand, learned Counsel for the landlord respondent relied inter -alia on M/s. Kashi Ram Kanhaiya Lal v. Additional District Magistrate, 1993 (22) ALR 114, in which it was held that omission to issue a fresh notice under Rule 8(2) after the remand of the proceedings by the High Court would not vitiate the proceedings because after the remand the parties were given full opportunity of hearing.;