JUDGMENT K.N. Singh, J. - This is a petition under article 226 of the Constitution of India challenging the order of the Area Rationing Officer, Rent Control Agra, dated 3rd July, 1976 allotting the premises in dispute to Mohan Lal Agrawal, Advocate, respondent No. 3 and also the order of the Additional District Judge, Agra dated 17-1-1975 dismissing the petitioners' revision. 2. Briefly, the facts giving rise to this petition are that the premises in dispute 1/54 Jauhari Bazar, P.S. Kotwali, Agra consists of one hall on the first floor of the building. Raman Lal Agrawal is landlord of the premises. Harmukh Rai, the petitioner and his brother Banwari Lal have been the tenant of the premises. After the death of Banwari Lal, his legal heirs, respondent Nos. 5 to 10 have been tenants of the premises in dispute alongwith Harmukh Rai and for the last twenty years they have been carrying on business of selling 'Biris' on a wholesale basis. Girdhar Garg son of the petitioner obtained a licence for selling drugs in the premises in dispute. The tenants have been regularly paying rent to the landlord and there has been no dispute between them. The tenant do not reside in Agra instead they are residents of Aligarh. The petitioners' business was looked after by his son, Girdhar Garg. On 4th January, 1976, Mohan Lal, Agrawal who is a practising Advocate at Agra made an application before the Area Rationing Officer, respondent No. 2 for allotment of the premises in dispute for the purpose of setting up his chamber on the allegation that the tenants had vacated the premises, they had removed their goods and closed down their business at Agra. The Area Rationing Officer directed the Rent Control Inspector to make an inspection and submit his report in accordance with Rule 8. The Rent Control Inspector could not inspect the premises as it was looked at the time of his inspection. On the basis of some enquiry, he submitted, a report that the tenants who had been carrying on business had substantially removed their effects but their son sometimes resides in the premises but he was not available at the time of inspection. Since the premises were locked, he could not state anything further about vacancy. He suggested that notices be issued to the landlord and the tenants for determining the vacancy. Since the premises were locked, he could not state anything further about vacancy. He suggested that notices be issued to the landlord and the tenants for determining the vacancy. The Area Rationing Officer thereupon issued notices to the tenants but no notice appears to have been served on the landlord. 3. The petitioner filed objection denying the allegation that he had ever vacated the premises in dispute or that he had any intention to do so. He asserted that he had not removed any of his goods from the premises. He also asserted that he has been using the premises for his business purposes and stocks of Biris and other publicity materials have all along been kept inside the premises in question and his son, Girdhar Garg, who was looking after the business, was frequently staying in the premises. Thereafter, an enquiry was held by the Area Rationing Officer to determine the vacancy on 19-6-76. The Area Rationing Officer accepted affidavits tiled on behalf of respondent No. 4 and closed the evidence and rejected adjournment application made on petitioner's behalf and fixed 26th June, 1976 for orders. On 26th June, 1976, the petitioners' son, Girdhar Garg, appeared and requested the Area Rationing Officer to take up the case after sometime in the day as his counsel was delayed on account of the illness of his son. The Area Rationing Officer rejected his request and declared vacancy in the premises in question. On 30-6-1976 the petitioner made another application for setting aside the order dated 19th June, 1976 to proceed ex-parte against the petitioner-tenant and also the order dated 26th June, 1976 declaring vacancy in the premises in dispute. The Area Rationing Officer rejected the same by his order dated 3-7-1976 and allotted the premises to Mohan Lal Agrawal. respondent no. 4. 4. The petitioner took up the matter in revision before the Additional District Judge challenging the allotment order. The landlord Ramanlal, Agrawal, respondent No. 4, also filed a revision against the order of allotment on the ground that he was not given any notice and even if there was any vacancy, he was entitled to notice to enable him to file application for release of the accommodation. Both the revisions were consolidated and the Additional District Judge by a common order dismissed both the revisions. Aggrieved, the petitioner filed this petition under Article 226 of the Constitution. 5. Both the revisions were consolidated and the Additional District Judge by a common order dismissed both the revisions. Aggrieved, the petitioner filed this petition under Article 226 of the Constitution. 5. Raman Lal Agrawal, landlord of the premises in dispute has also challenged the order of allotment as well as the order of the Additional District Judge dismissing his revision, by means of writ petition No. 1329 of 1978. Both these petition have been heard together. 6. Learned counsel for the petition, Harmukh Rai contended that there was no vacancy in the premises in dispute and the same could not legally be allotted to respondent No. 3. I find considerable force in the contention. On the admitted facts, the Area Rationing Officer declared vacancy on the ground that the tenant-petitioner had substantially removed his effects from the premises. Section 12 of the U.P. Act No. 13 of 1972 makes provision for deemed vacancy in a building on the existence of circumstances enumerated therein. It is not necessary to consider various sub-sections of section 12 as the instant case admittedly fails within section 12 (1)(a). Section 12(1)(a) lays down a legal fiction according to which if a landlord or a tenant substantially removes his effects from a building, it shall be deemed that such landlord or tenant has ceased to occupy the building or part thereof and a vacancy would arise in the premises. The expression "substantially removed his effects" is of great significance. It does not contemplate removal of some house-hold effects. On the contrary, it envisages that for all practical purposes, the landlord or tenant, as the case may be, should have practically removed the goods or his house-hold effects from the premises and he does not intend"to continue in occupation of the premises. The real test to determine vacancy under the deeming provision of section 12(l)(a) is the intention of the tenant which can be inferred from the proved facts and circumstances. The deeming provisions cannot be pressed into service if it is found that only some part of the goods or belongings of the tenant are removed and his furniture and other luggage and belongings are still kept in the premises (see S.N. Ghosh v. Rent Control and Eviction Officer, 1976 A.L.J. 256. The deeming provisions cannot be pressed into service if it is found that only some part of the goods or belongings of the tenant are removed and his furniture and other luggage and belongings are still kept in the premises (see S.N. Ghosh v. Rent Control and Eviction Officer, 1976 A.L.J. 256. While considering this question, it is necessary for the authorities to bear in mind that a heavy burden lies on the person who may be claiming vacancy in the premises to prove that the tenant has substantially removed his effects from the premises. 7. The authority entrusted with the duty of determining vacancy and allotting the premises must satisfy itself that the person invoking the legal fiction enacted under section 12(J)(a) of the Act has discharged the burden. If the tenant is found absent from the premises or if he looks the premises for sometimes of if he removes some of his effects from the tenanted accommodation the legal fiction as envisaged under the said provision will not be applicable. Before the legal fiction comes into play, it must be proved by cogent evidence to show that the tenant or the landlord, as the case may be, has removed all his goods and other belongings in a substantial manner indicating a clear intention of vacating the premises. An allotment order passed on the basis of deemed vacancy would be rendered invalid if it is found that the landlord or the tenant has not substantially removed his effects from the premises in question. 8. In the instant case, the Area Rationing Officer, by his order dated 3-7-1976 repelled the petitioner's contention that there was no vacancy in the premises on the findings that the affidavits filed on behalf of respondent No. 3 clearly indicated that the petitioner had kept the premises locked for the last several years and that he has been carrying on his business at Aligarh. The Area Rationing Officer, however,failed to record any finding that the petitioner had substantially removed his effects from the disputed accommodation. In revision, the Additional District Judge held that there was vacancy under section 12(1)(a) of the Act as the petitioner had failed to take steps for getting a commission issued for inspection of the accommodation to prove his contention that his goods were stored in the premises. In revision, the Additional District Judge held that there was vacancy under section 12(1)(a) of the Act as the petitioner had failed to take steps for getting a commission issued for inspection of the accommodation to prove his contention that his goods were stored in the premises. The Additional District Judge further held that as there was no electric connection in the premises in dispute and as the petitioner had failed to produce Sales Tax or Income Tax papers to show that any business was carried on in the premises and further as no ration card or the correspondence was produced, the petitioner had ceased to occupy the premises. He placed reliance on the affidavits of the persons carrying on business in the neighbourhood of the premises in dispute in coming to the conclusion that the petitioner had removed his goods substantially from the premises and had closed his business for the last many years and was residing and carrying on business at Aligarh. The Additional District Judge committed patent error in placing burden of proof on the petitioner. As disclosed earlier, the burden to prove that the petitioner had substantially removed his effects from the premises in question was on Mohan Lal, respondent No. 3 as he had invoked the deeming provision of section 12(l)(a) for obtaining allotment of the premises. 9. The Area Rationing Officer as well as the learned Additional District Judge both placed strong reliance on the affidavits of Mohanlal Kripa Shanker, Chandra Shekhar, Om Prakash and Padam Chand filed in support of respondent No. 3. The deponents of these affidavits were cross-examined by the petitioner before the Area Rationing officer. Certified copies of their statement were placed before me. In his cross-examination, Mohan Lal Agrawal stated that he had made his application as he had come to know that the premises had been lying vacant since long and no business was carried on in that premises. All the other witnesses, Kripa Shanker, Chandra Shekhar, Om Prakash and Padam Chand Jain, in their cross-examination, admitted that none of them had gone inside the premises in question and they did not know as to whether any goods or belongings of the petitioners-tenant was kept there. Each one of them stated that since they had seen the premises locked, they had come to the conclusion that the premises was vacant. Each one of them stated that since they had seen the premises locked, they had come to the conclusion that the premises was vacant. The testimony of these witnesses was wholly irrelevant as they had no knowledge about the existence of the essential question of fact, as to whether the petitioners' goods furniture's and other materials were still kept inside the premises or he had removed the same. On the mere statement that the premises was kept under lock for most of the time, it could not be presumed that the tenant had substantially removed his effects. The findings of the Additional District Judge suffers from manifest error of law. 10. The petitioner throughout asserted that he never vacated the premises and that stock of 'biris' and publicity materials connected with the business were kept in the premises and that a licence for carrying on drug business was obtained in the name of his son in respect of the premises. The landlord also supported the tenant and asserted that the petitioner had been paying rent to him throughout. There was no cogent evidence on record to show that the petitioner had removed his effects substantially. Since Mohan Lal Agrawal, respondent No. 3 was claiming vacancy in the premises, burden lay on him to prove that the petitioner had substantially removed his effects from the premises in question. It was, therefore, for the respondent No. 3 to have a commission issued for the inspection of the premises in question. He failed to get the premises inspected. The learned Additional District Judge wrongly placed this burden on the petitioner. Neither the Rent Control Inspector nor any of the witnesses who filed affidavits on behalf of respondent No. 3 had any occasion to go inside the tenanted room, and as such they could not and they did not depose that the petitioner had removed his effects from the premises. 11. In view of the above discussion, I hold that there was no vacancy in the premises and the Area Rationing Officer had no jurisdiction to allot the premises to respondent No. 3. The order of allotment is rendered invalid. 12. 11. In view of the above discussion, I hold that there was no vacancy in the premises and the Area Rationing Officer had no jurisdiction to allot the premises to respondent No. 3. The order of allotment is rendered invalid. 12. Learned counsel for the respondent urged that since suit No. 32 of 1978 filed by the petitioner is pending in the court of Additional Munsif, Agra challenging an order of the Area Rationing Officer declaring vacancy and the order of allotment, the petitioner is not entitled to any relief It is true that the petitioner had filed a suit for injunction in the Munsifs court at Agra but on legal advice he made an application before the Munsif for withdrawal of the suit before filing this petition. This fact was stated in the writ petition. It is strange to note that the Additional Munsif rejected the petitioner's application. The petitioner thereupon made another application on 8th March, 1978 for recalling the order dismissing his application for withdrawing the suit. The application was duly supported by an affidavit copies of which have been filed as annexures 'R. 10' and R. 11' to the rejoinder affidavit. The Munsif fixed 12th May, 1978 for passing orders on his application. Meanwhile, the injunction application came up for orders before the Munsif on 9th March, 1978 and on that date, the counsel for the petitioner made a statement that he would not press the injunction application in view of the fact that the plaintiff had already moved application for the withdrawal of the suit. These facts leave no room for any doubt that the petitioner has been pressing for the withdrawal of the suit but the Munsif on one ground or the other has kept the suit alive and he did not pass any final order on the application of the petitioner. Whenever an application is made by a plaintiff to withdraw his suit, it is the duty of the court to dispose of the same as early as possible. In the instant case, the Additional Munsif has without any reasonable grounds kept on the proceedings alive despite the petitioners' application for withdrawal of the suit. The fact, however, remains that the petitioner took steps for the withdrawal of his suit before filing the present petition. In the instant case, the Additional Munsif has without any reasonable grounds kept on the proceedings alive despite the petitioners' application for withdrawal of the suit. The fact, however, remains that the petitioner took steps for the withdrawal of his suit before filing the present petition. In the circumstances, the respondents' contention that the petitioner has been pursuing his remedy in the suit cannot be accepted. 13. In the result, I allow the petition and quash the impugned orders of the Area Rationing Officer dated 26th June, 1976 and 3-7-1976 and also the order of the Additional District Judge dated 17-1-1976. The petitioner is entitled to his costs.