JUDGMENT Devendra Kumar Upadhyaya, J. – Heard Sri Ravi Shanker Tiwari, learned counsel for petitioner and Sri Alok Kumar Sinha, learned counsel representing respondent no.2. 2. In these proceedings under Article 227 of the Constitution of India, the petitioner has challenged the validity of preliminary order dated 22.04.2015, passed by the Rent Control and Eviction Officer/Additional City Magistrate-VI, Lucknow whereby the vacancy has been declared in respect of a shop, admeasuring 10 x 18 sq. fts, situated in House no.291/10kha/1, Lakshman Nagar, Talkatora Main Road, Lucknow. 3. Admittedly, the respondent no.2 is the landlord of the premises in question which was earlier in the tenancy of one Ramjan Ali who used to do business of selling ready made garments prior to his death. The earlier tenant Ramjan Ali died on 14.01.2013 whereupon an application was moved by respondent no.2 under Section 12/16 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for declaring the shop to be vacant. 4. On the application so moved by respondent no.2, the Rent Control Inspector/Tehsildar (Judicial), Sadar, Lucknow submitted his report on 29.01.2014 stating therein that the premises in question is an old one and was constructed prior to the year 1972. He further stated in the said report that during the course of inquiry, it was found that the shop in question bears a sign board in the name of Siddiqui Cloth and in the shop, business of selling garments is being done. It was also reported by the Rent Control Inspector that the shop in question was found to be open at the time of inspection and on inquiry, it was revealed that the shop in question is 50 years old which was earlier in the tenancy of Ramjan Ali. It was also reported by the Tehsildar that along with Ramjan Ali one of his servants, Mohd. Safi was also helping him in the said business. The said report further stated that Ramjan Ali died on January, 2013 and after his death, Mohd Safi is running the shop. 5. On the aforesaid application, the petitioner filed his objections stating inter alia therein that late Ramjan Ali was issue less who had executed registered will in favour of the petitioner bequeathing all his properties. The said report further stated that Ramjan Ali died on January, 2013 and after his death, Mohd Safi is running the shop. 5. On the aforesaid application, the petitioner filed his objections stating inter alia therein that late Ramjan Ali was issue less who had executed registered will in favour of the petitioner bequeathing all his properties. It was further pleaded in the said objections by the petitioner that he is a legal heir of the deceased Ramjan Ali and in view of the provisions contained in Section 3 (1) (g) of U.P.Act No.13 of 1972, he is a member of the family of the deceased being his male lineal descendant and as such it is not a case of deemed vacancy in terms of the provisions contained in Section 12 (1) (b) of the Act. The petitioner further pleaded that he has duly succeeded the tenancy rights and as such there cannot be any vacancy as is being claimed by the respondent no.2. 6. In support of his case, the petitioner has annexed various documentary evidences including the death certificate issued by Lucknow Nagar Nigam establishing the death of Ramjan Ali, the electoral roll, the death certificate of Peer Bux who was brother of the deceased Ramjan Ali etc. It was pleaded that Ramjan Ali and Peer Bux were real brothers being son of Late Bulaqee which was apparent from perusal of the death certificates filed by the petitioner. In respect of Peer Bux and Ramjan Ali, various other documentary evidences were also filed by the petitioner claiming the inheritance of tenancy rights in his favour after the death of Ramjan Ali. 7. Learned counsel for the petitioner has submitted that however, the learned Rent Control and Eviction Officer has not taken into account the objections made by the petitioner to the application moved by the respondent no.2 while passing the preliminary order declaring the vacancy in respect of shop in question. 8. I have given my thoughtful consideration to the arguments advanced by counsel of the respective parties and have perused the records. 9. What all has been stated by the Rent Control and Eviction Officer in the impugned order dated 22.04.2015 is that on the basis of material available in the form of report submitted by the Rent Control Inspector it is apparent that the vacancy in the premises in question has occurred. 9. What all has been stated by the Rent Control and Eviction Officer in the impugned order dated 22.04.2015 is that on the basis of material available in the form of report submitted by the Rent Control Inspector it is apparent that the vacancy in the premises in question has occurred. He has also considered the submissions made by learned counsel appearing for Mohd. Safi. In fact, Mohd Safi, the alleged servant of Late Ramjan Ali, who is said to be running the shop in question, never appeared before the learned Rent Control and Eviction Officer. Apparently the submissions made by learned counsel for the petitioner before the Rent Control and Eviction Officer have been attributed to the learned counsel appearing for Mohd. Safi, though the said fact is wrong. No objections by Mohd Safi were ever filed before the Rent Control and Eviction Officer. 10. Any building or premises in occupancy of a tenant can be declared to be vacant on the grounds mentioned in Section 12 of U.P. Act No.13 of 1972. The grounds given in the said provisions are that a landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof, if (1) he has substantially removed his effects therefrom; or (2) he has allowed it to be occupied by any person who is not a member of his family; or (3) in the case of a residential building, he along with members of his family have taken up residence, elsewhere. 11. Thus, one of the grounds available for declaration of a vacancy is whether the building in question has been allowed to be occupied by any person who is not a member of family of the tenant or not. 12. The submission made by the petitioner by filing objections to the application moved by respondent no.2 was that he is the nephew of the deceased tenant Ramjan Ali and as such he has occupied the shop in question being member of his family, hence there cannot be a case of deemed vacancy in the shop in question. 13. Section 3 (1) (a) of the Act defines a tenant, according to which the tenant means a person by whom its rent is payable. 13. Section 3 (1) (a) of the Act defines a tenant, according to which the tenant means a person by whom its rent is payable. It further provides that on the death of tenant, only such of his heirs will be tenant as normally resided with the original tenant in case of residential building and in case of non-residential building, his legal heirs will be the tenant. 14. The case set up by the petitioner before the Rent Control and Eviction Officer was that he, being the nephew, is the male lineal descendant of the deceased Ramjan Ali, as such he would be a tenant within the meaning of said word as defined in Section 3 (a) (2) of the Act. 15. From perusal of the order passed by the Rent Control and Eviction Officer, it is abundantly clear that no consideration of any issue raised by the petitioner has been made while passing the impugned order. He has not even discussed the case set up by the petitioner. In such a situation, this Court is left with no other option but to set-aside the order dated 22.04.2015 and direct the learned trial court to consider the application moved by the respondent no.2 along with objections raised and the documents relied upon by the petitioner and decide the same afresh. 16. Accordingly, the petition is allowed and the order dated 22.04.2015 passed by the Rent Control and Eviction Officer/Additional City Magistrate-VI, Lucknow in Case No. 13 of 2014; Raj Kishore v. State of U.P is hereby set-aside. The entire matter is remitted to the Rent Control and Eviction Officer for deciding the application moved by the respondent no.2 in accordance with law and also taking into account the objections submitted by the petitioner along with documentary evidence adduced by him. The Rent Control and Eviction Officer/Additional City Magistrate-VI, Lucknow shall keep in mind the observations made herein above in this judgement while deciding the matter afresh. The proceedings of the application preferred by the petitioner shall be expedited and concluded by the Rent Control and Eviction Officer/Additional City Magistrate-VI, Lucknow within a period of three months from the date of production of a certified copy of this order. 17. There will be no order as to costs. Petition allowed.