J.C.GUPTA,J. - (1.) BOTH these writ petitions have been filed against the order of the Rent Control and Eviction Officer dated 14.9.78 declaring the accommodation in question vacant and the order dated 19.11.81 allotting the shop in question in favour of respondent No. 3 as well as the order dated 1.4.82 passed by the and Additional District Judge, Aligarh dismissing the revision filed by the petitioners.
(2.) THE dispute relates to shop No. 123-A Madar Gate, Aligarh, which was under the tenancy of one Gulab Chandra Jain, Dr. R. K. Parashar, respondent No. 3 and one Gopal Krishna applied before the Rent Control and Eviction Officer, respondent No. 2 for allotment of the aforesaid alleging that a vacancy has accrued, as the shop was in unauthorised occupation of the petitioners without any order of allotment in their favour. Petitioner Dinesh Kumar contested the said proceedings alleging that he was in occupation of the shop since 1.6.76 as a tenant with the consent of the landlord and his occupation stood regularised under Section 14 of the U. P. Act No. 13 of 1972, hereinafter referred to as the Act. Respondent No. 2, however, found no force in the objection of the petitioner and vide order dated 4.9.78 notified vacancy. Petitioner Dinesh Kumar as well as the petitioner of the connected writ petition Chandra Pal Varshney, who is the father of Dinesh Kumar, also moved applications for allotment of the shop. By the order dated 19.11.81 the disputed shop has been allotted in favour of respondent No. 3. Revisions filed by the petitioners under Section 18 of the Act have also been dismissed by respondent No. 1. Before this Court learned counsel for the petitioners firstly challenged the order declaring vacancy by contending that since the evidence on record proved that petitioner Dinesh Kumar was in occupation of the shop in question since before the date of commencement of the Act i.e. 15.7.1976, the occupation of the petitioner became regularised under Section 14 of the Act, as such the shop could not be declared vacant. On perusal of the record no substance is, however, found in this submission of the learned counsel. On appraisal of material and the evidence on record categorical findings of fact have been arrived at by both the courts below that the petitioner Dinesh Kumar was not in occupation as a tenant before the relevant dated i.e. 15.7.1976, therefore, he was not entitled to get the benefit of the provisions of Section 14 of the Act and since the occupation of the petitioner Dinesh Kumar was without an order of allotment in his favour, a deemed vacancy occurred under Section 12 of the Act. These findings of fact could not be shown to be erroneous in law. It is worthwhile to mention here that an application was moved under Section 10(6) of the Act for permission to admit Bhoodeo Prasad and Dinesh Kumar of partners with Gulab Chandra Jain, which was dismissed by the order dated 9.11.1976. Dinesh Kumar was never treated as a sole tenant of the shop in question even by the landlord before 15.7.1976. The question of vacancy has been gone into by both the courts below in detail and concurrent findings of fact have been recorded that the occupation of Dinesh Kumar was unauthorised and the shop in question was vacant in the eye of law and was open for allotment. Since there was no application of the landlord for release, the question for allotment arose before the Rent Control and Eviction Officer. There were four applicants before the said authority namely, Dr. R.K. Parashar, respondent No. 3, Chandra Pal Varshney (petitioner of connected writ petition), Dinesh Kumar (petitioner of the present writ petition) and Gopal Krishan Sharma. The Rent Control and Eviction Officer considered the applications and thereafter passed the impugned order of allotment in favour of respondent No. 3.
(3.) THE main ground on which the validity of the impugned order is challenged, is that petitioner's application for allotment has been illegally rejected by the Rent Control and Eviction Officer on untenable grounds. It is contended by the learned counsel for the petitioners that the application of the petitioner Dinesh Kumar for allotment has been rejected merely on the ground that the said application was not liable to be considered because petitioner Dinesh Kumar was held to be an unauthorised occupant and there has been no consideration of the said application on merits. It is argued by petitioner's counsel that there is no absolute bar either under the Act or rules for non- consideration of the application for allotment moved on behalf of an unauthorised occupant. He further urged that the revisional court has committed a manifest error of law in upholding the impugned order of allotment by applying Rule 11, which applies only to a residential building and not to a shop.;