ORDER R.P. Singh, J. - By means of this writ petition under Article 226 of the Constitution, the petitioner has prayed for quashing of the order passed by the 1st Addl. District Judge, Allahabad, dated 7-3-1987 and the order passed by the Rent Control and Eviction Officer, dated 30-7-1986 by which the accommodation in dispute was allotted in favour of the respondent No. 3. 2. The facts of the case, briefly, are that Smt. Sarla Rastogi is a tenant of the disputed accommodation i.e., back side of 22, Hamilton Road, Allahabad regarding which various persons applied for allotment on the ground that the disputed accommodation has fallen vacant as the tenant Smt Sarla Rastogi has vacated the accommodation having gone to America. The Rent Control Inspector on 29-5-1981 submitted a report stating that the landlord could not be contacted as he stays in Kanpur and he found one person living there, who refused to disclose his name and told that the accommodation is in possession of Smt Sarla Rastogi and her family and that the accommodation was not vacant. The Rent Control and Eviction Officer thereafter passed a short and cryptic order, dated 17-7-1981 that in view of the report of the process server and the report of the Rent Control Inspector, dated 29-5-1981, vacancy of the accommodation has been established and hence declared the vacancy in respect of the disputed accommodation. Thereafter Smt Sarla Rastogi filed a writ petition before this court challenging the order of declaration of vacancy passed by the Rent Control and Eviction Officer and this court, vide its order, dated 8-2-1983, held that the writ petition merely against the order of declaration of vacancy was premature and hence dismissed the writ petition as premature. The petitioner then filed an objection on 23-7-1983 that he was in occupation of the disputed accommodation since January, 1976 as tenant along with Smt. Sarla Rastogi who had temporarily gone to America and that the rent of the disputed accommodation was being regularly paid to the landlord K.C. Bajpai, respondent No. 5, in the case. The petitioner then filed an objection on 23-7-1983 that he was in occupation of the disputed accommodation since January, 1976 as tenant along with Smt. Sarla Rastogi who had temporarily gone to America and that the rent of the disputed accommodation was being regularly paid to the landlord K.C. Bajpai, respondent No. 5, in the case. The petitioner also produced a copy of the letter of the landlord K.C. Bajpai, respondent No. 5, dated 21-12-1975 giving his consent to the occupation of the petitioner and in this letter written to the tenant B.R. Rastogi, the husband of Smt. Sarla Rastogi, the landlord had stated that he had no objection if the petitioner R.P. Dubey is allowed to continue in occupation of the premises in dispute and on this basis the petitioner set up a case that he was in possession as sub-tenant with the consent of the landlord. However, the Rent Control and Eviction Officer holding that the petitioner was in possession only as a trespasser, vide his order, dated 30-7-1986 ordered the allotment of the accommodation in favour of K.N. Khusaria, respondent No. 3 Feeling aggrieved, the petitioner went up in revision before the 1st Addl. District Judge who dismissed the revision, vide his order, dated 7-3-1987 which orders are in challenge in the present writ petition. 3. Heard Sri Ravi Kant for the petitioner and -Sri S.P. Srivastava for the respondent No. 3. 4. Sri Ravi Kant, the learned counsel for the petitioner, firstly contended that the inspection made by the Rent Control Inspector was in violation of R. 8(2) of the Rules framed under the Act inasmuch as no notice of the proposed inspection was served on the landlord and the tenant or even the petitioner, who was the occupant of the disputed accommodation. Hence the inspection was not made in presence of the landlord and the tenant or even the petitioner who was the occupant of the accommodation and further the facts mentioned in the report should have been elicited from at least two respectable persons of the locality but inspection report did not indicate that any attempt was made to elicit information from at least two respectable persons of the locality and hence there is a clear breach of the provisions of R. 8(2) of the Rules framed under the Act. Secondly, the learned counsel contended that in view of the letter of the landlord sent to the tenant giving his consent subletting the accommodation in favour of the petitioner, the petitioner had become sub-tenant of the disputed accommodation with the consent of the landlord and hence could not be treated as a trespasser and.hence also the disputed accommodation was not vacant. Thirdly, he contended that in view of the fact that the petitioner-was in occupation of the disputed accommodation as a sub- tenant since January, 1976 with the consent of the landlord, he is entitled to the protection of S. 14 of the Act and his tenancy is liable to be regularised and hence also the orders passed by the respondents Nos. 1 and 2 treating the petitioner to be a trespasser are clearly vitiated. 5. Now taking the first point canvassed' regarding violation of R. 8(2) of the Rules, it has been contended by the learned counsel for the petitioner that no notice of the inspection was given to the landlord or tenant or even the petitioner, who was an occupant. Rule 8(2) reads as follows : "The inspection of the building, so far possible, shall be made in the presence of the landlord and the tenant or any other occupant. The facts mentioned in the report should wherever practicable, be elicited from at least two respectable persons in the locality and the conclusion of the inspection report shall be pasted on the notice board of the office of the District Magistrate for the information of the general public, and an order of allotment may be passed not before the expiration of three days from the date of such pasting and if in the meantime any objection is received, not before the disposal of such objection." 6. The learned counsel for the petitioner in support of his contention relied on the case of Kailash Chandra v. Kailash Narain reported in 1982 All Rent Cas 285 in which it was held by Hon'ble N. D. Ojha, J. (as he then was) that sub-rule (2) of R. 8 makes it incumbent upon the Rent Control Inspector to make an effort to contact the landlord at the time of inspection and in absence of any material to indicate that it was not possible for him to do so, the report given on the basis of inspection in absence of the landlord was in violation of R. 8 of the Rules. In this view of the matter, not only the order declaring vacancy passed" by the Rent Control and Eviction Officer but also the order of allotment subsequently made and also the order passed by the Addl. District Judge dismissing the revision were held to be vitiated and set aside. In the present case neither any notice had been given to the landlord nor the tenant nor even the occupant of the disputed accommodation and hence it is contended that the report submitted by the Rent Control Inspector on the basis of which the vacancy was declared was clearly vitiated. The learned counsel for the petitioner also relied on the case of S.K. Das v. Rent Control and Eviction Officer I Allahabad, reported in (1986) 1 All Rent Cas 237 where the order of declaration of vacancy and allotment was passed without issuing notice to the heirs of the tenant. The order was held to be vitiated and unsustainable. It was further held that mere fact that the heirs had knowledge of the proceedings will be of no consequence. 7. The learned counsel for the respondent No. 3 in reply submitted that the landlord or the tenant has not filed the present writ petition and hence they have not made any grievance of the declaration of vacancy and hence the violation of R. 8(2), even if there is any breach in complying with these rules, will not affect the merits of this case. I see no merits in this submission. I see no merits in this submission. The compliance of sub-rule (2) of R. 8 has been held to be mandatory and the tenant Smt Sarla Rastogi had in fact challenged the order declaring vacancy by filing a writ petition before this Court which was, however, dismissed at that time on 8-2-1983 on the ground that the writ petition against mere declaration of vacancy was pre-mature. Hence it cannot be said that the tenant had not challenged the declaration of vacancy. Moreover, the petitioner in his capacity as an occupant of the disputed accommodation has also as much right to receive notice of the inspection made as much as the tenant or the landlord is entitled to. Hence in my opinion in view of the clear provision in sub-rule(2) of R. 8 that the notice is to be given to the occupant of the building also, the petitioner was certainly entitled to the inspection being made in his presence after due notice being given to him and the same having not been done, there is a clear violation of sub-rule (2) of R. 8 of the Rules framed in the present case. 8. The learned counsel for the petitioner further submitted that no orders of allotment could be passed without giving prior opportunity of hearing to the landlord and submitted that sub-rule (3) of Rule 9 clearly provides that immediately after the receipt of intimation of vacancy, the District Magistrate shall enter the same in his register and the same shall be notified for the information of general public by pasting a copy of the list of vacant buildings on the notice board and he shall also issue a notice to the landlord intimating him the date so fixed. The learned counsel for the petitioner contended that there was no due service of notice on the landlord before passing the order of allotment and in support of his contention, he relied on the case of Yogendra Tiwari v. District Judge, Gorakhpur reported in AIR 1984 SC 1149 : (1984 All LJ 498) where it was held : "Under Rule 9(3) the District Magistrate is required to serve a notice on the landlord intimating him of the date on which the question of allotment will be considered. The landlord may, in response to the notice issued to him under Rule 9(3), make out a case for release of the building or part thereof or any land appurtenant thereto, for occupation by himself or any member of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, calling etc........ the impugned order of allotment passed by the Rent Control and Eviction Officer having made without affording to the appellant an opportunity to have his say in the matter was clearly a nullity." 9. The learned counsel for the respondent in reply submitted that notice was sent to the landlord and in any case the landlord has not made any grievance of the declaration of vacancy or the order of allotment and hence it is not open to the petitioner to make any grievance of it. No doubt the landlord has not made any grievance on account of an order of allotment being passed without sending any notice to the landlord intimating him of the date fixed on which date the question of allotment would be considered, but since I have already held earlier that the vacancy was ascertained without giving any notice to the petitioner of the date of the inspection as contemplated by sub-rule (2) of R. 8 of the Rules and hence the order of allotment made without first determining the vacancy after complying with the provisions of R. 8. will be bad in law. 10. The learned counsel for the petitioner next contended that the order declaring vacancy is a very cryptic order showing no application of mind and disclosing no reasons for holding that the disputed accommodation is vacant. The order declaring vacancy, dated 17-7-1981 which is annexed as Ann. 4' to the writ petition merely states that in view of the report of the process server. dated 17-6-1981 and the report of the Rent Control Inspector, dated 29-5-1981, vacancy is established, and, therefore, vacancy is declared. The report of the process server, dated 17-6-1981 only shows that Smt. Sarla Rastogi was not found on the spot and he learnt that she had gone to America for 6-7 months. The report of the Rent Control Inspector, dated 29-5-1981 also does not indicate that the accommodation was found to be vacant. The report of the process server, dated 17-6-1981 only shows that Smt. Sarla Rastogi was not found on the spot and he learnt that she had gone to America for 6-7 months. The report of the Rent Control Inspector, dated 29-5-1981 also does not indicate that the accommodation was found to be vacant. In the report it is only stated that the inspector learnt that Smt. Sarla Rastogi was in possession of the same and the person present there told that the house was no vacant. Hence merely on the basis of the report of the process server and that of the Inspector, no inference could be drawn that the house was vacant. The order declaring vacancy as such appears to be an arbitrary order passed by the Rent Control and Eviction Officer without applying his mind to the question about the vacancy of the disputed accommodation and giving reasons for his conclusion. Hence in my opinion there is substance in the submission of the learned counsel for the petitioner that the order declaring vacancy dated 17-7-1981 is itself vitiated and arbitrary and has been passed by the Rent Control and Eviction Officer without application of his mind to the question of vacancy of the accommodation in dispute. 11. Now coming to the question as to in what capacity the petitioner was in possession of the disputed accommodation, the learned counsel for the petitioner relied on the letter written by the landlord K. C. Bajpai to the tenant B.R. Rastogi (the deceased husband of Smt. Sarla Rastogi), dated 21-12-1975 in which he had written that in response to the request of the tenant to permit R. P. Dubey to remain in possession of the disputed accommodation, the landlord wrote that he had no objection if the tenant allows the petitioner to remain in occupation of the same. The learned counsel for the petitioner also relied on an affidavit of Smt Sarla Rastogi in which in para 2', it was stated that since K. C. Bajpai, the landlord, had agreed to the proposal of the tenant, hence the petitioner continued to live in the said accommodation as a sub-tenant with the consent of the landlord since January, 1976. The learned counsel for the petitioner also relied on an affidavit of Smt Sarla Rastogi in which in para 2', it was stated that since K. C. Bajpai, the landlord, had agreed to the proposal of the tenant, hence the petitioner continued to live in the said accommodation as a sub-tenant with the consent of the landlord since January, 1976. The learned counsel for the petitioner contended that in view of this, the petitioner is clearly a sub- tenant with the consent of landlord and hence he is entitled to the protection of S. 14 of -the Act and his sub-tenancy is entitled to be regularised, he being in possession with the consent of the landlord immediately before the commencement of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976. The learned counsel in support of his contention relied on the case of Kripa Ram v. Addl. District Judge reported in 1976 All WC 528 wherein the facts were that Rameshwar Dayal was the owner and landlord of the premises who let them out to one Manohar Lal. Manohar Lal in his turn let out the premises to Kripa Ram. Manohar Lal, however, died and on his death Kameshwar Dayal sold the premises to Rameshwar Dayal who filed an application for release of the premises under S. 16(1) of the Acton the ground that the sole tenant was dead and the occupation of Kripa Ram after the death of Manohar Lai became unauthorised. Hon'ble K. C. Agrawal, J. overruled the contention of Rameshwar Dayal and held that Kripa Ram, the sub-tenant, acquired the right to continue in possession of the property so long as the original lessee continued as a lessee directly from the owner and landlord and was entitled to hold the building under tenancy on the same terms and conditions as the original lessee or the tenant-in-chief. In Rajendra Nath Tiwari v. III Addl. District Judge, Allahabad, reported in 1981 All Rent Cas 271 : (1981 UPLT NOC 78), it was held that the benefit of S. 14 of the Act ought to be available even to the sub- tenants who were in occupation of the building under tenancy on the relevant date with the consent of the landlord. District Judge, Allahabad, reported in 1981 All Rent Cas 271 : (1981 UPLT NOC 78), it was held that the benefit of S. 14 of the Act ought to be available even to the sub- tenants who were in occupation of the building under tenancy on the relevant date with the consent of the landlord. It was held that 'sub- tenant' clearly falls within the definition of the term 'tenant' as defined in S. 3(a) of the Act as a sub-tenant is a person by whom the rent is payable to the tenant-in-chief. The court observed in (illegible) to S. 14 of the Act that "It speaks 'of a tenant in occupation of a building with the consent of the landlord'. I find no warrant upon the plain terms of the section, to limit the operation of the Act only to tenants of the owners. I see no distinction between tenants and sub-tenants in the context of S. 14, if there is the consent of the owner to the occupation of the sub-tenant. on the relevant date. I am, therefore, of the view that on the fact found by the courts below, the petitioners were entitled to the benefit of S. 14 of the Act and the courts below have wrongly held that the building in question was liable to be deemed vacant." 12. lam in respectful agreement with the view expressed above and in view of the discussion made above, it is clear that the petitioner, who was also in occupation of the premises as a sub-tenant with the consent of the landlord on the relevant date, is also entitled to the benefit of S. 14 of the Act and the petitioner could not be treated as a trespasser. On the contrary his tenancy is liable to be regularised under S. 14 of the Act, keeping in view the discussion made above. 13. The learned counsel for the respondent contended that the petitioner is not entitled to the benefit of S. 14 of the Act inasmuch as his case is that he was in possession as a tenant along with Smt Sarla Rastogi. 13. The learned counsel for the respondent contended that the petitioner is not entitled to the benefit of S. 14 of the Act inasmuch as his case is that he was in possession as a tenant along with Smt Sarla Rastogi. However, in my opinion, in view of the affidavit of Smt Sarla Rastogi herself in which she has clearly stated that the petitioner was in possession of the accommodation as a sub-tenant with the consent of the landlord since the year 1976 and further the letter written by the landlord to the tenant giving his consent to the occupation of the petitioner of the premises in dispute, it is clear that the petitioner is in possession of the disputed accommodation as a sub-tenant with the consent of the landlord and being in possession on the relevant date as contemplated by S. 14 of the Act, is entitled to the benefit of regularisation of his tenancy. The respondents Nos. 1 and 2 have wrongly treated the petitioner to be in occupation as a trespasser. In fact the respondents Nos. 1 and 2 have not considered and properly appreciated the implications of the letter sent by the landlord to the tenant signifying his consent to the occupation of the petitioner of the disputed premises nor have they considered the effect of the affidavit of the tenant Smt Sarla Rastogi in which she averred that the petitioner is living in the disputed accommodation as a sub-tenant since January, 1976. It was incumbent on the respondents Nos. 1 and 2 to have considered the effect of those two documents and then arrive at a finding regarding the status of the petitioner who was found to be in occupation of the disputed premises. 14. The learned counsel for the petitioner then contended that the accommodation could not be deemed to be vacant unless there was a finding recorded under sub cl. (a) sub-s. (1) of S. 12 of the Act that the tenant has substantially removed his effect from the disputed accommodation. The learned counsel has relied on the case of Smt. Maddi Devi v. Addl. (a) sub-s. (1) of S. 12 of the Act that the tenant has substantially removed his effect from the disputed accommodation. The learned counsel has relied on the case of Smt. Maddi Devi v. Addl. District Judge, Kanpur, reported in 1981 All Rent Cas 167: (AIR 1981 NOC 76) where it was held that by S. 12, a legal fiction has been created that property would be deemed vacant in certain circumstances and in absence of a specific finding that the landlord has substantially removed his effects therefrom; the property cannot be deemed to be vacant under the provisions of S. 12(1)(a) of the Act. It was further held that mere fact that the property is locked or the mere fact that the landlord has temporarily gone to another place to live with another person, it could not by itself be taken that the property is vacant as the legislature used specifically the word "effects". In the circumstances, a finding has to be recorded.that from the examination of the facts, all the necessary effects have already been removed. Reliance was also placed by the learned counsel for the petitioner on the cases of Dr. S. N. Ghosh v. Rent Control and Eviction Officer reported 'in 1976 All LJ 256 and Surendra Kumar Bishnoi v. 1st Addl. District Judge reported in 1979 U.P.R.C.C. 634 in which the same view has been taken. In this view of the matter also, the order declaring vacancy was clearly vitiated as the necessary ingredients for passing the order declaring vacancy were not taken into consideration by the Rent Control and Eviction Officer. 15. The learned counsel for the respondent submitted that the sub-tenant's right can be no more than that of the tenant and if a tenant is liable to ejectment under the Actor has relinquished his tenancy rights, the sub-tenant can also be evicted if the sub- tenant continues to remain in the premises. In support of his contention, the learned counsel for the respondent has relied on the case of Abdul Samis v. Lakshman Das, reported in 1955 All LJ 259, where it was held that merely from the fact that during the subsistence of his tenancy, the tenant could not eject the sub-tenant, it would not follow that the tenant was debarred from relinquishing his own tenancy right. This case cited by the learned counsel for the respondent does not apply to the facts of the present case as it is not a case of relinquishment of tenancy. On the contrary, in the present case, the petitioner has set up a case of creation of sub-tenancy with the consent of the landlord and being in possession on the relevant date he is claiming to be entitled to the protection of S. 14 of the Act. 16. Since the respondents Nos. 1 and 2 have passed the impugned orders without taking into consideration the implications of the letter written by the landlord to the tenant signifying his assent to the occupation of the petitioner of the premises in dispute and further have failed to take into consideration the effect of the affidavit filed by the tenant Smt Sarla Rastogi in which it is averred that the petitioner was continuing in possession as sub-tenant with the consent of the landlord since 1st January, 1976, the impugned orders passed by the respondents Nos. 1 and 2 cannot be sustained. In the result, the writ petition succeeds and is allowed and the impugned orders, dated 30-7-1986 and 7-3-1987 passed by respondents Nos. 2 and 1 respectively are quashed. Since the impugned orders have been passed without taking into consideration the material facts as stated above which have material bearing on the point in issue, the case is sent back to the Rent Control and Eviction Officer, respondent No. 2, to decide the case afresh and in accordance with law keeping in mind the observations made above. In the circumstances of the case, however, the parties shall bear their own costs.