Judgment : SUDHIR Narain, J. 1. Petitioner has filed this writ petition against the order dated 6.2.1993, declaring the vacancy of the premises in question consisting of three rooms, varandah, kitchen, bathroom and common latrine on the first floor of house No. 108/109 Gandhi Nagar Kanpur. 2. ADMITTEDLY, petitioner's father Raghunath Prasad Dixit, was tenant of the disputed premises. Respondent No. 3 had purchased the entire house No. 108/109, Gandhi Nagar Kanpur from its previous owner namely, Shri Harish Chandra Gupta on 7.3.1990. A notice of vacancy was purported to have been given by Shri Raghunath Prasad Dixit before the Rent Control and Eviction Officer stating that he had vacated the premises in dispute and shifted to his original house in the village and the vacancy may be declared. On this application, the Rent Control and Eviction Officer, directed the Rent Control Inspector to submit report. The Rent Control Inspector submitted report that the premises in question was locked-up. He appears to have handed over the possession to some other persons and the accommodation in question may be treated as vacant. 3. SHRI Raghunath Prasad Dixit on coming to know of the proceedings for declaration of vacancy and intimation dated 10.10.1990, filed objection dated 6.4.1991 before the Rent Control and Eviction Officer alleging that he had never intimated the vacancy on 10.10.1990. He also filed an affidavit dated 29.7.1991 in support of his objection. Respondent No. 2 filed reply to the objection of Raghunath Prasad Dixit. 4. RAGHUNATH Prasad Dixit died on 17.11.1992. On 21.11.92 the Rent Control and Eviction Officer passed an order directing RAGHUNATH Prasad Dixit to appear before him on 5.12.1992. RAGHUNATH Prasad Dixit had already died on 17.11.1992 and the order was passed in ignorance of this fact. On 4.2.1993, counsel for RAGHUNATH Prasad Dixit, Shri Klb. Tiwari moved an application intimating the respondent No. 1 that RAGHUNATH Prasad Dixit died on 17.11.92 alongwith photostat copy of death certificate and requested that note be made that RAGHUNATH Prasad Dixit could not put appearance on 5.12.1992. On the same date respondent No. 1 passed the order that RAGHUNATH Prasad Dixit had died and photostat copy of death certificate be placed on record. He heard the arguments advanced by the counsel for the respondent No. 2 and fixed 6.2.1993 for orders. On the same date respondent No. 1 passed the order that RAGHUNATH Prasad Dixit had died and photostat copy of death certificate be placed on record. He heard the arguments advanced by the counsel for the respondent No. 2 and fixed 6.2.1993 for orders. On 6.2.1993, the petitioner filed application for impleadment on the ground that he is one of sons of Raghunath Prasad Dixit and he should be impleaded. This application was rejected by respondent No. 1 on the same date and by another order on the same date he declared the vacancy of the premises in question. He took the view that one of the sons of Raghunath Prasad Dixit, namely, Shri Ashok Kumar Dixit had constructed his own house at plot No. 130, (Block 'p) Yashoda Nagar, Kanpur, therefore, the premies in question would be deemed as vacant. This order has been challenged in the present writ petition. 5. I have heard the learned counsel for the parties. The Rent Control and Eviction Officer proceeded to declare the vacancy on the basis that Ashok Kumar Dixit one of the sons of Raghunath Prasad Dixit has constructed his own house. The proceeding for vacancy started on the basis of intimation alleged to have been given by Raghunath Prasad Dixit subsequently, it appears that it was also brought to the notice of the Rent Control and Eviction Officer that Ashok Kumar Dixit had constructed his house as mentioned above. The petitioner, another son of Raghbunth Prasad Dixit filed application for his impleadment in the proceedings but the same has been rejected without assigning any reason. The vacancy may be actual vacancy or deemed vacancy. The proceedings for declaration of the vacancy started on the basis of the intimation alleged to have been given by Raghunath Prasad Dixit. He is said to have retired from service and shifted to his village. Raghunath Prasad Dixit filed objection that he never intimated the vacancy and his signatures on the letter of intimation of the vacancy were forged. He also filed affidavit in support of his version. He died on 17.11.1992. The respondent No. 1 passed order dated 21.11.1992 directing Raghunath Prasad Dixit to appear before him. Before the aforesaid order was passed, he had already expired. He also filed affidavit in support of his version. He died on 17.11.1992. The respondent No. 1 passed order dated 21.11.1992 directing Raghunath Prasad Dixit to appear before him. Before the aforesaid order was passed, he had already expired. The Rent Control and Eviction Officer has not decided the question as to whether Raghunath Prasad Dixit had actually vacated the premises in question and shifted to his village. The Rent Control and Eviction Officer should have recorded finding as to whether he had shifted to his village after his retirement and vacated the premises in question. 6. ANOTHER question is as to whether petitioner has inherited tenancy rights. Raghunath Prasad Dixit expired on 17.11.1992 and after his death it was to be ascertained as to who is actually living in the premises in dispute. The petitioner claims himself as heir of Raghunath Prasad Dixit. He is to establish that he is tenant as defined under Section 3 (a) of U. P. Act No. XIII of 1972, and was normally residing with Raghunath Prasad Dixit in the premises at the time of his death. The Rent Control and Eviction Officer should have allowed his application for impleadment after giving opportunity of hearing. In case Raghunath Prasad Dixit has himself intimated the vacancy and had shifted to his village the petitioner will not get any right as his father had already vacated. In case it is found that Raghunath Prasad Dixt had not vacated the accommodation, then the Rent Control and Eviction Officer has to examine as to whether the petitioner was residing in the disputed accommodation and before the death of Raghunath Prasad Dixit, he was normally residing with him. Second question is as to whether there is deemed vacancy, even if Raghunath Prasad Dixit had not vacated the accommodation. 7. LEARNED counsel for the respondent No. 2 has placed reliance upon sub section (3) of Section 12 of the Act which provides that in case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same City, Municipality, Notified Area or Town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. 8. 8. EXPLANATION (b) of sub-section (3) of Section 12 of the Act puts condition that such member of the family will not include a person who has neither been normally residing with nor is wholly dependent on such tenant. Respondent No. 1 declared the vacancy on the basis that Ashok Kumar Dixit one of the sons of tennat-Raghunath Prasad Dixit had constructed the house at plot No. 130, Block 'p' Yashodha Nagar, Kanpur. He has not recorded finding as to when he had constructed the house and whether Ashok Kumar Dixit was normally residing with Raghunath Prasad Dixit or was dependent upon him. Secondly the petitioner was not afforded any opportunity to file objection in the proceedings for declaration of the vacancy. 9. IN view of the discussion made above, the writ petition is allowed. The order dated 6.2.1993 is hereby quashed. Respondent No. 1 is directed to decide the question of vacancy of the premises in question afresh keeping in view the observations made and in accordance with law within three months from the date of production of a certified copy of this order before him. 10. PARTIES shall bear their own cost. Petition allowed.