DINESH KUMAR Vs. IIND ADDL. DISTRICT JUDGE

JUDGEMENT

(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.

(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.