Holding

A person who has the landlord’s written consent is not an unauthorised occupant under Rule 10(5)(d) and therefore is not disqualified, and the High Court’s remand for fresh consideration is justified.

Summary

The appellant, Dr. R.K. Parashar, was allotted Shop No.123‑A by the Rent Control and Eviction Officer, a decision later upheld by the Additional District Judge. Respondent No.1, Dinesh Kumar, who had earlier attempted to regularise his occupation of the same shop through applications under Rule 10(6) and Section 14 of the Uttar Pradesh Urban Buildings Act, was denied and the shop was declared vacant. The High Court set aside the allotment to the appellant, prompting appeals. The Supreme Court examined whether Dinesh Kumar was disqualified under Rule 10(5)(d) for unauthorised occupation without landlord consent and whether the appellant was entitled to preference under Rule 10(8)(b) as a qualified medical graduate. It held that because Kumar had the landlord’s consent, he was not an unauthorised occupant within the meaning of the rule and thus not disqualified, and that the High Court was justified in remitting the matter for fresh consideration. Consequently, one appeal was dismissed and the other allowed.

Issues considered

Whether a person who occupies premises with the landlord's consent is disqualified under Rule 10(5)(d) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972.
Whether the appellant, as a qualified medical graduate, is entitled to preference under Rule 10(8)(b) in the allotment of a non‑residential building.
Whether the High Court was correct in setting aside the allotment order made in favour of the appellant.

Legislation cited

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 13, s. 14, s. 16, s. 31
Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972s. 10(5)(d), s. 10(6), s. 10(8)(b), s. 11

Subjects

rent controlevictionunauthorised occupationlandlord consentpreferential allotmenttechnical personnelUttar Pradesh Urban Buildings ActRule 10Rule 11regularisation of tenancy

Judgment

R.K. PARASHER A
v.
DINESH KUMAR AND ORS.

MARCH 13, 2000

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B

Rent Control & Eviction :

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Evic-
tion) Act, 1972/Uttar Pradesh Urban Buildings. (Regulation of Letting, Rent
and Eviction) Rules, 1972: Sections 13 & 14/Rule lO(S)(d), 10(6) & 10(8)(b)-
c
An Application under Rule 10(6) of the Rules made by respondent No. 1 in
connivance with the then _tenant for his induction as a tenant in the shop was
dismissed by the District Supply Officer-Another application made by Re-
spondent Nv. 1 under Section 14 of the Act for regularisation of his tenancy
also dismissed by the District Supply Officer-The shop declared to be vacant D
by the District Supply Officer and ordered for re-allotment-Shop allotted to
appellant by the Rent Control and Eviction Officer-Challenge to the said
allotment order by way of a revision before the Additional District Judge
failed-Order of the Additional District Judge challenged by way of a writ
petition before the High Court-High Court set aside the allotment made in
E
favour of the appellont-On appeai, Held : Rules l 0( 5)( d) of the Rule takes
note of only the unuuth01ised occupants of a building without the written
consent of the landlord and ordinarily a building is not allotted to them-
Respondent No. 1 had the consent of landlord as he was found to be in
collusion with the landlord by the District Supply Officer-Hence his claim
could not be brushed aside on that ground. F
Respondent No. 1, with the connivance of the then tenant of a
disputed shop, filed an application under Rule 10(6) of Uttar Pradesh
Urban Buildings (Regularisation of Letting, Rent and Eviction) Rules,
1972 with a view to induct himself as a tenant which was dismissed by the
District Supply Officer. Again filed an application under Section 14 Uttar G
Pradesh Urban Building (Regularisation. of Letting, Rent and Eviction)
Act, 1972 for regularisation of his tenancy, alleging that he occupied the
shop in June, 1976. However, the said application was also dismissed by
the District Supply Officer declaring the shop to be vacant in the eyes or
law. The said Officer also ordered for consideration of the application for H
255
256 SUPREME COURT REPORTS [2000] 2 S.C.R.
A allotment of the shop. Four applicants including Respondent No. 1, his ....
' father and the appellant applied for the same. Respondent No. 3 i.e. Rent
Control and Eviction Officer allotted the shop in favour of the appellant.
The said order was challenged in re\ision before the Addi. District Judge
by Respondent No. 1, his father and the heirs of the owner of the shop. The
revision application was dismissed on the ground that the application .of
B
the appellant being first in time, he was entitled to allotment under Rule
11 of the said Rules. Challenge to the said order was allowed by the High
Court in a writ petition, by setting aside the allotment made in favour of '
,....

the appellant. Hence this appeal.

c The appellant contended that the order of allotment having consid-
ered the comparative merits of the applicants, the applicant cannot com-
plain of non-consideration of his application or that of his father. It was
also submitted that under Rule 10(5)(d) of the Rules R-1 was ineligible
while appellant was eligible under Rule 10(8)(b).

D Disposing the appeals, the Court

· HELD : 1. · 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 occupants of a building : (i) otherwise than with the written
E consent of the landlord and (.ii) otherwise than under an order of allotment
or release. But the scheme of Rule 10(5)(d) of Uttar Pradesh Urban
Buildings (Regularisation of Letting, Rent and Eviction) Rules, 1972
suggests that the rule making authority has condoned the authorised
-1'

occupant so declared under Section 13 of the Uttar Pradesh Urban Build-
F ings (Regularisation of Letting, Rent and Eviction) Act, 1972 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. [261-G"H]
G
2. 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 consid-
ered for purposes of allotment in view of the language of clause (d) of Rule ..,,

H 10(5). The position is that he would neither have any preference on account
(

R.K. PARASHER v. DINESH KUMAR 257
of being in occupation of the shop nor will he incur any disqualification for A
having violated Section 13 of the Act. Thus, his claim cannot be brushed
aside on the ground of an unauthorised occupant as he had incurred no
disqualification under clause (d) of Rule 10(5). (262-B-C]

3. Rule 10(8)(b) applies to a non-residential building. It says that
preference shall be given to qualified technical personnel such as medical B
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 R-3; but R-2 and High Court did not avert to that
aspect. However, it appears that R-3 while considering the claim of R-1 was
under the impression that R-1 was in unauthorised occupation and there- c
fore, was ineligible under Rule 10(5)(d) of the said Rules. [262-E-F]

·CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1472-1473
of 1998,

From the Judgment and Order dated 16.10.97 of the Allahabad High D
Court in C.M.W.P. Nos:39Sl and 7273 of 1982.

R.C. Verma, M.P. Shorawala for Mis. Dhillon and Katiyar Co. for the
Appellant.

B.D. Agrawala, Sr. Adv., Dhruv Agrawal, Praveen Kumar and Prakash E
Krishan for the Respondents. ·

The Judgment of the Court was delivered by

SYED SHAH MOHAMMED QUADRI, J. These appeals arise from
the common judgment of the High Court of Judicature at Allahabad in Civil p
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, G
/ (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 Ilnd Additional District Judge, Aligarh
(Respondent No.2) by his order dated April I, 1982. The High Court
allowed the writ petitions and quashed the said orders of respondent Nos. H
258 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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-Guiab Chand Jain. Dinesh Kumar (respondent No.1) with the
connivance of the then tenant filed an application for permission to carry on
B
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.l 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.I by filing an
c application under Section 14 of the Uttar Pradesh Urban Buildings (Regu-
lation of Letting, Rent and Eviction) Act, 1972 (for sho1t '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
D 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.l, his father Chandra Pal and one Gopal Krishan Sharma for
E 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 c01Tectness of that order was
questioned by respondent No. I and Chandra Pal as well as the heirs of the
said landlord by filing the revision petitions before the second respondent
under Section 18 of the Act. The second respondent upheld the order of
F
allotment of the shop in favour of tl1e 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. l and Chandra Pal before
the High Court By the impugned common order the High Court allowed the
G 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 th.e same were turned down by the
competent authority - first by rejecting joint application to permit him to
H
R.K. PARASHER v. DINESH KUMAR [QUADRI, J.] 259

carry on business as a partner of the firm and on the second occasion by · A
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 B
11 had no application but contended that under Rule 10(5)(d) of the Rules
respondent No. I 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."! for c
the reason that he was an unauthorised occupant and that the revisional
authority (the secm::.d respondent) effoneously 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 nova consideration.

The short point that arises for consideration is : whether the impugned D
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 tllat the application of Chandra Pal was
considered and rejected on the ground that he failed to produce any evidence
E
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. l moved a sepacate
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 ·comt is, therefore, not F
justified in directing that his case for allotment of the shop be considered
afresh.

So far as the case of respondent No. I is concerned, we have already
noted above that a joint application of the outgoing tenant and respondent
No. I for his entry as a tenant of the shop was rejected by the competent G
authority. It is also evident that the application of respondent No.I, under
Section I4 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 amved at the conclusion that in H
260 SUPREME COURT REPORTS [2000] 2 S.C.R.
A regard to the possession of 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:-

B "After perusal of all the affidavits and evidence of the parties and
hearing arguments of the learned counsel 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
c 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. l was
D weighed with the authority while allotting the shop to the appellant.

The revisional authority having noted various unsuccessful attempts
made by respondent No. I to legalise his unautho1ised 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
E Rules shows that it applies only to the residential premises and this position
is also not disputed by the learned counsel for the appellant.

TI1is takes us to the consideration of two aspects:(i) whether the order
of ~llotment in favour of the appellant can be sustained under Rule 10(8)(b)
of the Rules and (ii) whether respondent No. I is disqualified under Rule
F IO(S)(d) of the Rules. They read as follows :-

"IO. Allotment Procedure -

(1) to (4) *** *** ***

G (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
H occupation of the building or any part thereof without the written
R.K. PARASHER v. DINESH KUMAR [QUADRI, J.] 261
consent to the landlord. A
(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 : B

(a) *** *** ***
(b) Preference shall be given to qualified technical personnel (such
as medical or engineering graduates) who want to engage in self-
employment." c
First, we shall take up the question of disqualification of respondent
No.I. 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 D
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 E
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
r be sentenced to imprisonment which may extend to six months or fine which F
may extend to Rs.5,000/- or both. TI1ere 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 G
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 H
262 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 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. I had the consent of the 1
landlord, nay he is in collusion with the landlor~ as found by the District
B
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 t4e 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
c claim cannot be brushed aside on the ground of an unauthorised occupant
as he ~as 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).
D So far as clause (b) of sub-mle (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
E 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 canying on medical practice was taken note of
by the third respondent; but, the second respondent and the High Court did
F 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
G 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
H have his unauthorised occupation of the shop regularised under Section 14
...(

R.K. PARASHER v. DINESH KUMAR [QUADRI, J.] 263
of the Act had also failed, so the shop cannot be allotted to him as that A
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. I. 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 B
Appeal No.1473 of 1998 is allowed. In the facts and circumstances of this
case we make no order as to costs.

R.C.K. Civil Appeal No. 147211998 dismissed.
Civil Appeal No. 1473/1998 allowed.