IMPORTANT POINT
An occupant of premises having the consent of the landlord, nay he is in collusion with the landlord, but that by itself would not disentitle him to stand a chance of being considered for purposes of allotment in view of the language of clause (d) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972.

Headnote:Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972-Section 14-U.P. Urban Buildings (Regulation of Letting, Rent and Eviction Rules, 1972-Rule 10(5)(d), 11-Allotment procedure-Unauthorised occupant-When a person has entered into unauthorised occupation of building or any part thereof without written consent of landlord-Ordinarily the building shall not be allotted to him-Respondent in occupation of building having consent of landlord, may be in collusion with landlord- He would neither have any preference on account of being in occupation of the shop nor will he incur any disqualification for having violated Section 13 of the Act-His claim cannot be brushed aside on ground of an unauthorised occupant-He had incurred no disqualification under clause (d) of the Rules-Third respondent in considering claim of respondent 1, under the impression that he being in unauthorised occupation, was ineligible under Rule 10(5)(d) of the Rules, is not correct-High Court was justified in remitting matter to Rent Control and Eviction Officer.
       Held : Section 13 of the Act says that where a landlord or a tenant ceases to occupy a building or part thereof no person shall occupy it in any capacity on his behalf otherwise than under an order of allotment or release under Section 16 of the Act and if a person so purports to occupy it he shall without prejudice to the provisions of Section 31 of the Act be deemed to be an unauthorised occupant of such building or part. Section 31 of the Act provides penalties which can be imposed on any person who contravenes any of the provisions of the Act or any order made thereunder; even an attempt or abetment of such contravention is also made punishable. On conviction, an offender may be sentenced to imprisonment which may extend to six months or fine which may extend Rs. 5,000/- or both. There can be no doubt that a person who has occupied a premises without the permission of the landlord is an unauthorised occupant, a trespasser. The rule making authority is presumed to be aware of two categories of the unauthorised occupation of a building : (i) otherwise than with the written consent of the landlord and (ii) otherwise than under an order of allotment or release. But the scheme of Rule 10(5)(d) of the Rules suggests that the rule making authority has condoned the authorised occupant so declared under Section 13 of the Act and has taken note of only an authorised occupant of a building without the consent of the landlord. Under that rule it is only when a person had entered into unauthorised occupation of the building or any part thereof without the written consent of the landlord then ordinarily the building shall not be allotted to him. (Para 13)
       In the instant case, admittedly, respondent No.1 had the consent of the landlord, may he is in collusion with the landlord as found by the District Supply Officer but that by itself would not disentitled him to stand a chance of being considered for purposes of allotment in view of the language of clause (d) of the Rules. The position is that he would neither have any preference on account of being in occupation of the shop nor will be incur any disqualification for having violated Section 13 of the Act. Thus, his claim cannot be brushed aside on the ground of an unauthorised occupant as he has incurred no disqualification under clause (d) of the Rules. (Para 14)
       So far as clause (b) of sub-rule (8) of Rule 10 of the Rules (quoted above) is concerned it applies to a non-residential building. Sub-rule 8 directs that in making allotment of non-residential buildings regard shall be had to the guiding principles contained in clauses (a) to (c) and that the principles contained therein shall not be departed save for exceptional cases for which reasons have to be recorded. Clause (b) says that preference shall be given to qualified technical personnel such as medical or engineering graduates who want to engage in self-employment. The fact that the appellant is a medical graduate and is carrying on medical practice was taken note of by the third respondent, but, the second respondent and the High Court did not advert to that aspect. However, it appears the third respondent in considering the claim of respondent No. 1, under the impression that he being in unauthorised occupation was ineligible under Rule 10(5)(d) of the Rules, which we have held above, is not correct. (Para 16)

JUDGMENT

Syed Shah Mohammed Quadri, J.- These appeals arise from the common judgment of the High Court of judicature at Allahabad in Civil Miscellaneous Writ Petition Nos. 3951 & 7273 of 1982 passed on October 16, 1997.

2. The petitioner in the first-mentioned writ petition is the son of the petitioner in the second-mentioned writ petition. In the writ petitions, they impugned the order of allotment of Shop No. 123-A, Madras Gate, Aligarh, (hereinafter referred to as the shop ) in favour of the appellant, made by the Rent Control and Eviction Officer, Aligarh (Respondent No. 3) on November 19, 1981 and confirmed by the IInd Additional District Judge, Aligarh (Respondent No. 2) by his order dated April 1, 1982. the High Court allowed the writ petitions and quashed the said orders of respondent Nos. 2 and 3.

3. The facts giving rise to these appeals are briefly set out here. One Bishan Sarup Gupta was the owner of the shop which was in the occupation of the tenant-Gulab Chand Jain. Dinesh Kumar (respondent No.1) with the connivance of the then tenant filed an application for permission to carry on business in partnership in the shop under Rule 10 (6) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (for short the Rules ) with a view to induct respondent No.1 as a tenant. But that application was dismissed by the District Supply Officer on November 9, 1976. The second attempt was made by respondent No.1 by filing an application under Section 14 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act ) for regularisation of his tenancy, alleging that he occupied the shop on June 1, 1976. The District Supply Officer dismissed that petition holding, inter alia, "possession of Dinesh Kumar cannot be regularised under Section 14 of the Act. In the eye of law the disputed shop is vacant. It is, therefore, declared to be vacant and declaration of vacancy be carried out." For consideration of the application for allotment of the shop the case was posted on September 14, 1978. By that date there were four applicants-the appellant herein, respondent No. 1, his father Chandra Pal and one Gopal Krishan Sharma for allotment of the shop. After considering the respective merits of the applicants, the third respondent allotted the shop in favour of the appellant by order dated November 19, 1981. The correctness of that order was questioned by respondent No. 1 and Chandra Pal as well as the heirs of the said lanlord by filing the revision petitions before the second respondent under Section 18 of the Act. The second respondent upheld the order of allotment of the shop in favour of the appellant holding inter-alia that under Rule 11 of the Rules his application being the first in time had priority and dismissed the revision petitions on April 1, 1982. That order was questioned in the aforesaid writ petitions by respondent No. 1 and Chandra Pal before the High Court. By the impugned common order, the High Court allowed the writ petitons set aside the allotment made in favour of the appellant.

4. Mr. R.C. Verma, the learned counsel appearing for the appellant, submitted that efforts of respondent No.1 to regularise his back entry into the shop after unauthorisedly occupying the same were turned down by the competent authority-first by rejecting joint application to permit him to carry on business as a partner of the firm and on the second occasion by dismissing his application to regularise the tenancy under Section 14 of the Act, therefore, allotment of the shop to him will nullify the earlier orders. He submitted that in the order of allotment comparative merits of each of the applicants were considered so he can not complain of non-consideration of his application or that of his father-Chandra Pal. He conceded that Rule 11 had no application but contended that under Rule 10(5)(d) of the Rules respondent No. 1 was ineligible and that the appellant is ent

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