JUDGMENT M.P. Saxena, J. - This is a petition under Article 226 of the Constitution for quashing the order dated 2.4.1976 passed by the learned Additional District Judge, Dehradun, allotting the building in dispute to opposite party No. 1. 2. Briefly stated the facts are that Flat No. 3/1 forms part of B.B.C. building Kulri, Mussorie, Admittedly one Miss C. Ram was a tenant of this flat. It is a residential quarter Miss C. Ram vacated the same and placed the opposite party No. 1 in possession of it. The Rent Control Inspector made an enquiry and reported that the opposite party No. 1 had occupied the flat in an unauthorised manner. The building was declared as vacant and allotment application were invited. The petitioner, opposite party No. 1, and one Sri J.P. Singhal applied for allotment. Since Sri J.P. Singhal did not take any interest in this matter he is not in the picture at all. The controversy remains between the petitioner and the opposite party No. 1. From the judgment of the learned District Judge it is evident that the application moved by the petitioner was prior in point of time to the application moved by the opposite party No. 1. The Rent Control and Eviction officer allotted the premises to the present-petitioner against which the opposite party No. 1 filed an appeal under section 18 of U.P. Act XIII of 1972, as it stood at that time. 3. After going through the entire matter the learned Additional District Judge, Dehradun, came to the conclusion that A. Prasad is no doubt in unauthorised occupation of the building but he will suffer considerable hardship if he is made to vacate it. Besides it, he is a public servant and entitled to preference under rule 11. Accordingly the appeal was allowed and the Flat was allotted to A. Prasad, opposite party No. 1. The rival claimant, namely, Sushil Kumar has filed this petition. Notice of this petition was duly served on the opposite party but he has not appeared to contest it. 4. I have heard the learned counsel for the petitioner and given my anxious consideration to the whole matter. Three things are manifestly clear which show that the learned Additional District Judge fell into an error of law apparent on the face of the record. 4. I have heard the learned counsel for the petitioner and given my anxious consideration to the whole matter. Three things are manifestly clear which show that the learned Additional District Judge fell into an error of law apparent on the face of the record. There is no denying the fact that Miss C. Ram was originally in possession of this building. There is no controversy that she vacated it inducting opposite party No. 1 in possession of it obviously in an unauthorised manner. The latter neither took consent of the landlord nor obtained any allotment order. The Rent Control Inspector found him in unauthorised occupation and reported vacancy. The Rent Control and eviction Officer declared vacancy and invited applications for allotment. It is further clear from the order of the learned District Judge that the present petitioner moved he application for allotment earlier than opposite party No. 1. The first point which arises for consideration is whether the allotment could be made in favour of opposite party No. 1. No formal application for allotment appears to have been made by the opposite party No. 1. Besides it, rule 10 sub-rule (5) clauses (c) and (d) stare the opposite party No. 1 in his face. Clause (c) of this rule reads :- "A building shall not ordinarily be allotted for residential accommodation of a person already occupying a building governed by the Act ..............." in the instant case the petitioner filed documentary evidence to show that the opposite party No. 1 was occupying another building for residential purposes and was not entitled to have the disputed building allotted in his favour, Annexure VI is a photostat copy of a receipt regarding payment of rent by opposite party No. 1 in respect of Pushpa Batika, Mussoorie dated 28.6.1975 and goes to show that rent upto the end of March 1975 was paid by the opposite party in respect of that building. Annexure VII' is a letter by the owner of Pushp Batika which shows that cottage No. 1 in the Pushp Batika is in possession of A. Prasad and the members of his family. It is dated 29.3.1976. These documents go a long way in proving that the opposite party No. 1 is in possession of another building for residential purposes and is paying its rent. It is dated 29.3.1976. These documents go a long way in proving that the opposite party No. 1 is in possession of another building for residential purposes and is paying its rent. The learned District Judge committed manifest error of law by holding that the opposite party No. 1 will be thrown on the street if the building in dispute is not allotted in his favour. In view of clause (c) reproduced above, this building could not be allotted to the opposite party No. 1. Clause (d) of the same rule says that no building shall be allotted for accommodating a person who has entered into unauthorised occupation of the building or any part there of without the written consent of the landlord. Both the lower authorities have held the possession of A. Prasad over the disputed building as unauthorised. There is not an iota of evidence to show that he has obtained written consent of the landlord. Therefore, in view of clause (d) also the building could not be allotted in his favour and the learned Additional District Judge committed manifest error of law by not taking this position into consideration. 5. In the second place the petitioner's application for allotment was prior in point of time to the application moved by opposite party No. 1. On this score also preference could not be given to the opposite party. He could not get preference on the basis of being a public servant since he is in occupation of this building in an unauthorised manner. 6. Lastly, on the basis of need also the petitioner's case as stronger than that of the opposite party. He is in possession of a very small flat and is living most uncomfortably. On the other hand the opposite party No. 1 has got a flat in Pushp Batika in his possession in which he is living with the members of his family. In view of all these facts and circumstances the order passed by the learned District Judge suffers from manifest errors of law and is liable to be quashed. 7. In the result the order dated 2.4.1976 passed by the learned Additional District Judge, Dehradun is quashed. No order as to costs.