JUDGMENT : - Shitla Pd. Srivastava, J. This petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 19-9-1995 passed by the respondent No. 1 (Rent Control and Eviction Officer, Kanpur Nagar) and further for a writ of mandamus restraining the respondents not to interfere with the petitioner's possession over two rooms, one varandah and tin shed of the house No. 8/110, Arya Nagar, Kanpur. 2. THE brief fact, as stated in the petition, are that the husband of the petitioner late Puran Chand, was tenant of two rooms, one varandah and a tin shed of house No. 8/110, Arya Nagar, Kanpur on behalf of Kunj Behari. It is stated that one Karan Singh was the owner of the property in question and the said house was purchased by one Ajit Kumar, who use to purchase the rented accommodation on a throw away price and sold them on exorbitant price. It is stated that respondent got the proceeding initiated by the petitioner that the Rent Control Inspector submitted a report dated 8-7-1993. THE allegations are that the respondent No. 3 gave a written statement to the Inspector that the petitioner has illegally occupied one room of Algo Mistri and one room of Smt. Kasturi Devi. It is stated that the respondent No. 2 took a frivolous stand that the petitioner is not the wife of Puran Chand and is an unauthorised occupant. The petitioner filed her affidavit through her son stating that Algo Mistri is none else but her own brother and is living with her because she is widow and her son is minor. It is stated that the respondent No. 1 found that the petitioner is not wife of Sri Puran Chand and she does not live in house in question lawfully is false and held that the wife of late Puran Chand and is legal occupant of the house in question. It is stated that the respondent No. 1 has illegally held that the petitioner is tenant of one room only and another room is in her unauthorised occupation. It is stated that the respondent No. 1 has not recorded any finding as to when the petitioner surrendered her tenanted one room, when she is recorded as tenant of two rooms in assessment year 1973-78. It is stated that the respondent No. 1 has not recorded any finding as to when the petitioner surrendered her tenanted one room, when she is recorded as tenant of two rooms in assessment year 1973-78. Further the contention of the petitioner is that in the Assessment Year 1977-87 the recording of one room tenancy in the name of Algo is prima facie wrong. Algo was residing admittedly with the petitioner because of her being widow and he was non-else than her own brother. 3. A counter affidavit has been filed by the contesting respondent, Kunj Behari. In para 4 of the said counter affidavit, it is stated that the accommodation in question was vacated by the unauthorised occupant Algo Mistri, therefore, the allotment application was moved by some per sons of the locality. It is stated that the allegations made by the petitioners are in correct. It is further submitted that the Rent Inspector submitted two reports dated 8-9-1993 and other dated 13-9-1994. In the assessment year 1987-92 one room with tin shed was found in occupation of Algo Mistri and one room was found in occupation of Smt. Kasturi. The allegations of the respondents are that it appears that during the assessment year 1987-92, Algo Mistri vacated the room in his occupation and it was illegally and un-authorisedly occupied by the petitioner, therefore, there was a vacancy in respect of that room which was left by Algo Mistri and allotment order was rightly passed by the respondent No. 1. 4. A rejoinder affidavit was also filed. Supplementary counter affidavit was filed annexing therewith a copy of the counter affidavit filed by Ashok Kumar son of the petitioner, before the Rent Control and Eviction Officer. The question involved in the present case is as to whether the petitioner was tenant of the portion which she inherited after the death of her husband and kept Algo, her brother, as her helper in other room or Algo is a different person, who was tenant of one room and he left that room and thereafter the petitioner occupied that particular room in un authorised way and there shall be a vacancy. The dispute is in respect of only one room, which is alleged by the respondent to be in occupation of Algo Mistri in his independent right. The parties filed their affidavits and document with regard to their respective contentions. The dispute is in respect of only one room, which is alleged by the respondent to be in occupation of Algo Mistri in his independent right. The parties filed their affidavits and document with regard to their respective contentions. The Rent Control Inspector also submitted report regarding possession of the disputed portion. 5. THE Rent Control and Eviction Officer held that Algo Mistri was in occupation of one room and the petitioner without any allotment occupying the same in illegal manner, therefore, there was a vacancy. THE Petitioner has challenged this order of declaration of vacancy. 6. SRI AN. Sinha, learned counsel for the petitioner has urged that the husband of the petitioner was tenant of two rooms and varandah etc. and after his death, this tenancy was inherited by the petitioner and his son, Ashok, and as Ashok was minor, petitioner permitted his brother Algo to live with her in one room and it was neither sub-letting nor Algo was tenant but he was residing only for the help of the petitioner, therefore, even if Algo was living separately his tenancy shall be deemed to have been regularised under Section 14 of the U. P. Act No. XIII of 1972. In support of his contention, he has placed 1983 (2) ARC 38 (Ziaul Haq v. 1st Addl. District Judge, Nainital and others), in which it was held that the brother though not member of the family, but living with the family shall be deemed to be tenant. Further the reliance was placed on 1982 (2) ARC 523 and 1985 (2) ARC 420 and 1995 (2) ARC 454 (Shyam Sunder Mishra v. Vlth Additional District Judge, Kanpur and others). He has further submitted that the landlord has not come with clean hands and he denied that the present petitioner is widow of the earlier tenant, therefore, a person who has not come with clean hands and challenged the identify of the petitioner to be wife of Puran Chand is not entitled to any relief. For that purpose, he has placed reliance on 1983 (2) ARC 225 (Mahamj Kumarivimla Devi v. Rent Control and Eviction Officer, Mussorie and anther). Sri S. M. Dayal, learned counsel for the respondent ultimately submitted that Section 14, of the Act is not applicable in the present case. For that purpose, he has placed reliance on 1983 (2) ARC 225 (Mahamj Kumarivimla Devi v. Rent Control and Eviction Officer, Mussorie and anther). Sri S. M. Dayal, learned counsel for the respondent ultimately submitted that Section 14, of the Act is not applicable in the present case. His contention is that to comply with the provisions of Section 14, it is necessary that the person should be a tenant of the disputed accommodation and should have permitted the other per sons to live with him and there should have been a consent of the landlord as in the present case, Algo Mistri was not living with the consent of the landlord and he was living in his independent right, therefore, he cannot be a person covered by Section 14 of the Act. He has placed reliance on the admission made by Ashok Kumar in his affidavit which has been filed along with the. Supplementary counter affidavit, wherein in para 7 of the affidavit, he has stated that in Panchshala year 1963-68, his father Pooran Chand is entered as tenant of one Kothari, one tin-shed on payment of Rs. 5 per month as rent and this will amount admission made by the son of the deceased tenant that his father and there after his mother, were the tenant of one room and not two rooms, therefore, second room which has been occupied by the petitioner which was left by Algo Mistri is in her authorised occupation and therefore, there was a vacancy which has been rightly declared. He has further said that there was no evidence that Algo was the brother of the petitioner and it cannot be accepted that Algo was living with widow even it is accepted that two rooms were in her tenancy. His further submission was that Algo was not produced to prove the relationship and if there was a license then he could only live only for a short term as provided under the Act. He further submitted that application was filed under Section 12 of the Act, there fore, the authorities were to see as to whether there was deemed vacancy or not. 7. He further submitted that application was filed under Section 12 of the Act, there fore, the authorities were to see as to whether there was deemed vacancy or not. 7. AFTER hearing the learned counsel for the parties, I am of the view that the question which was to be determined in this case by the prescribed authority is as to whether there was any vacancy for which application was filed and if there was any vacancy, whether the accommodation in question was open for allotment, as stated above. The controversy was with regard to the portion occupied by Algo also. On behalf of the petitioner, it was stated that Algo was her brother and he was living with her as she had a minor child and she was a widow to look after her and he shall be deemed to be a tenant of the accommodation in question, therefore, there was no vacancy. The prescribed authority on the basis of the report of the Inspector has held that the room in possession of Algo Mistri was occupied by the petitioner without any allotment and there was vacancy. 8. IN view of the fact that Algo was living there and he was the brother of the petitioner, the question was as to whether he shall be deemed to be a tenant or not. The case relied upon by the learned counsel for the petitioner 1982 (2) ARC 38 (supra), says that the brother though not a member of the family living in the family shall be deemed to be a tenant. As this point does not appear to have been considered by the prescribed authority while declaring the vacancy, therefore, I think even if the Algo was not a person whose tenancy could have been regularised under Section 14, of the Act but if he is otherwise tenant, then there will not be vacancy. As this point was not considered, I think it is a fit case in which the order passed by the prescribed authority should be set aside and the matter be sent back to him to decide it afresh keeping in view of the judgments cited as well as on the basis of the law of the land. As this point was not considered, I think it is a fit case in which the order passed by the prescribed authority should be set aside and the matter be sent back to him to decide it afresh keeping in view of the judgments cited as well as on the basis of the law of the land. Accordingly, I set aside the judgment and order dated 19-9-1995 passed by the respondent No. 1 and remand the case to the prescribed authority to decide it afresh after giving proper opportunity to the parties for hearing. With the aforesaid directions, the writ petition is disposed of. There will be no order as to costs. Petition disposed of.