Full Judgment Text
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PETITIONER:
R. K. PARASHER
Vs.
RESPONDENT:
DINESH KUMAR & ORS.
DATE OF JUDGMENT: 13/03/2000
BENCH:
S.S.M.Quadri, S.N. Phukan
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. 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, Madar 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. 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
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said landlord 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 petitions and set aside the allotment made in
favour of the appellant. 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 entitled to priority in
allotment of the shop under Rule 10(8)(b) of the Rules.
Shri Dhruv Agrawal, the learned counsel appearing for the
respondents, submitted that the third respondent negatived
the claim of respondent No.1 for the reason that he was an
unauthorised occupant and that the revisional authority (the
second respondent) erroneously upheld the allotment in
favour of the appellant under Rule 11 of the Rules, so the
High Court had rightly quashed the same and ordered de novo
consideration. The short point that arises for
consideration is : whether the impugned order of the High
Court warrants interference. A perusal of the order of
allotment, made by the third respondent in favour of the
appellant, shows that the application of Chandra Pal was
considered and rejected on the ground that he failed to
produce any evidence and that he could not prove his need
for allotment of the shop. It was also pointed out that he
being the father of respondent No.1 moved a separate
application simply for continuance of the occupation of the
shop by Dinesh Kumar. There is nothing in the order of the
revisional authority to show that the need of Chandra Pal
has been proved, therefore, his claim for allotment of the
shop can not be countenanced. The High Court is, therefore,
not justified in directing that his case for allotment of
the shop be considered afresh. So far as the case of
respondent No.1 is concerned, we have already noted above
that a joint application of the outgoing tenant and
respondent No.1 for his entry as a tenant of the shop was
rejected by the competent authority. It is also evident
that the application of respondent No.1, under Section 14 of
the Act for regularisation of his tenancy, was rejected by
the District Supply Officer on the ground that he and the
landlord were in collusion and that he was an unauthorised
occupant. He held thus, after considering the entire facts
on record he arrived at the conclusion that in regard to the
possession on the disputed shop by Dinesh Kumar, the owner
was in conspiracy after November 1976. Reverting to the
order of allotment, the third respondent concluded as
follows:- After perusal of all the affidavits and evidence
of the parties and hearing arguments of the learned counsel
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for the parties, I arrive at the conclusion that out of all
the four applicants, (1) R.K. Parashar, (2) Gopal Krishan
Sharma (3) Dinesh Kumar and (4) Chandrapal, the stronger
need is that of Dr. R.K. Parashar. Dr. R.K. Parashar
wants to establish private clinic in disputed shop, which is
in the public interest.
Though the above finding of the third respondent
indicates that all applications were considered on merits,
yet a reading of the whole order gives an impression that
the unauthorised occupation of respondent No.1 was weighed
with the authority while allotting the shop to the
appellant. The revisional authority having noted various
unsuccessful attempts made by respondent No.1 to legalise
his unauthorised occupation of the shop, maintained the
order of allotment in favour of the appellant on the rule of
priority contained in Rule 11 of the Rules. A plain reading
of Rule 11 of the Rules shows that it applies only to the
residential premises and this position is also not disputed
by the learned counsel for the appellant. This takes us to
the consideration of two aspects:(i) whether the order of
allotment in favour of the appellant can be sustained under
Rule 10(8)(b) of the Rules and (ii) whether respondent No.1
is disqualified under Rule 10(5)(d) of the Rules. They read
as follows :- 10. Allotment Procedure
(1) to (4) *
(5) A building shall not ordinarily be allotted to the
following persons or for the following purposes
(a) to (c) *
(d) For accommodating a person who has entered into
unauthorised occupation of the building or any part thereof
without the written consent to the landlord.
(6) to (7) *
(8) In making allotment of non-residential buildings,
regard shall be had to the following guiding principles
which shall not be departed from save for exceptional
reasons to be recorded in writing :
(a) *
(b) Preference shall be given to qualified technical
personnel (such as medical or engineering graduates) who
want to engage in self-employment.
First, we shall take up the question of
disqualification of respondent No.1. Clause (d) of sub-rule
(5) of Rule 10 of the Rules mandates not to allot a building
to accommodate a person who had entered into unauthorised
occupation of the building or any part thereof without the
written consent of the landlord. It would be appropriate to
note here that 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
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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 to 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 has
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.
In the instant case, admittedly, respondent No.1 had the
consent of the landlord, nay he is in collusion with the
landlord as found by the District Supply Officer 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 Rules. The position is that 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.
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. In the view we have
expressed above, it is unnecessary to consider the other
requirements of clause (d). 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. For the foregoing reasons, we
feel that the High Court is justified in remitting the
matter to the Rent Control and Eviction Officer (respondent
No.3) to decide the matter of allotment afresh. We,
therefore, do not propose to express any opinion on the
contentions of the appellant that the attempt of respondent
No.1 in getting an illegal entry into the shop in the guise
of a partner of the business fell to the ground and his
application to have his unauthorised occupation of the shop
regularised under Section 14 of the Act had also failed, so
the shop cannot be allotted to him as that would defeat the
earlier orders. He may be at liberty to raise all
contentions before the third respondent who shall consider
the comparative merits of the appellant and respondent No.1.
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Except to the extent, indicated above, we do not consider it
appropriate to interfere with the order of the High Court.
In the result, Civil Appeal No.1472 of 1998 is dismissed and
Civil Appeal no.1473 of 1998 is allowed. In the facts and
circumstances of this case we make no order as to costs.