JUDGMENT K.C. Agarwal, J. - These two connected writ petitions arise from a judgment of the District Judge, Dehradun dated 16-8-1977. 2. Shop No. 5, Nirmal Ashram situated in Kulari, Mussoorie belongs to Mahant Narain Singh. The shop was let to P. C. Jain, the petitioner. He had been the tenant of the said accommodation for the last 28 years. It is situated at the most important junction in the business market place in Mussoorie. In 1970, the petitioner started a restaurant and named it as 'Satkar Madras Restaurant. The actual supervision and management of the said restaurant had been entrusted to one K. K. Uni. It, however, appears that K. K. Uni had to leave Mussoorie in 1975. Thereafter C. P. Sethi approached the petitioner and represented to him that he had experience of the hotel business and he was prepared to take it on Theka. In May 1975. the petitioner gave the restaurant to C. P. Sethi along with all its fittings and furniture as well as cutlery utensils, electric fitting and almirahs. 3. On 27-3-1976 an application for allotment was made by Harish Chandra, one of the respondents on the allegation that the building should be deemed to be vacant in view of the provisions of Section 12 (1) (b) of U. P. Act No. 13 of 1972. being allowed to be occupied by a person who was not a member of the family of the petitioner. This was followed by another application made by C. P. Sethi for allotment on 17-4-1976. On 14-6-1976, the Rent Control Inspector submitted his report. It was accompanied by the statements recorded by the Rent Control Inspector at the spot. After being satisfied that the shop in dispute was vacant, the Rent Control and Eviction Officer notified the vacancy and finally allotted the shop to C. P. Sethi on 17-6-1977. In holding that the shop was vacant, the Rent Control and Eviction Officer found that C. P. Sethi was not a member of the family of the petitioner and as such his possession was unauthorised. Against the aforesaid judgment, the petitioner preferred a Revision No. 133 of 1977. As Harish Chandra Sharma was also aggrieved by the rejection of the application, filed by him for allotment, he filed Revision No. 135 of 1977. Both of these revisions were decided on 16.8.1977. Against the aforesaid judgment, the petitioner preferred a Revision No. 133 of 1977. As Harish Chandra Sharma was also aggrieved by the rejection of the application, filed by him for allotment, he filed Revision No. 135 of 1977. Both of these revisions were decided on 16.8.1977. By the said order, the District Judge set aside the allotment order made in favour of C. P. Sethi and directed the Rent Control and Eviction Officer, to decide the same afresh. He, however, dismissed the claim of the petitioner that the premises was not vacant. Aggrieved, the petitioner filed Writ Petition No. 1462 of 1977 whereas C. P. Sethi preferred Writ Petition No. 1562 of 1977. 4. Before dealing with the points, it appears appropriate to deal briefly with the scope of Section 12 (1) (b) of the Act, with which we are concerned in the present writ petition. Section 12 of the Act deals with deemed vacancy. Sab-sections (1), (2), (3) and (3A) and (3B) provide the different contingencies when a premises would be deemed to be vacant. Sub-section (4) lays down that any building or part which a landlord or tenant has ceased to occupy shall, for the purposes of this Chapter, be deemed to be vacant. 5. The facts of the present case were that P. C. Jain, the petitioner was the tenant. He started a restaurant in a portion of this building in 1970. Thereafter he handed over the possession of the restaurant along with its fittings and furniture to C. P. Sethi. It was thereafter that an application for allotment of the said premises was made under cl. (b) of sub-sec. (1) of Section 12 which reads as under: - "12. Deemed vacancy of building in certain cases. - A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if: - (b) he has allowed it to be occupied by any person who is not a member of his family." 6. The Courts below found that the shop in dispute had been permitted to be occupied by a person who was not a member of the family of the petitioner. There is no dispute that C. P. Sethi was not a member of the family within the meaning of that term defined in Section 3 (g) of U. P. Act No. 13 of 1972. There is no dispute that C. P. Sethi was not a member of the family within the meaning of that term defined in Section 3 (g) of U. P. Act No. 13 of 1972. The dispute only was whether the occupation of C. P. Sethi would attract cl. (b) of sub-s. (1) of Section 12 of the Act. 7. Sri S. N. Misra, the counsel for the petitioner contended that as C. P. Sethi was the Thekedar of the petitioner he was merely a licensee and as such his possession was that of the petitioner. He contended that for all practical purposes the possession of C. P. Sethi was that of the petitioner. 8. The word 'occupy like many English words has various meanings, depending on how it is used. In my judgment since occupation includes possession as its primary element, it must be held that the premises has been occupied by another person if the possession has been transferred to him. A dwelling house may be said to be occupied while it is dwelt in. Similarly a non-residential building could be said to have been occupied when it is in possession of a person found to be in its occupation. A fact that a person is in possession would necessarily mean that this person has control over the property. 9. In the instant case the finding given was that the possession of the premises had been transferred to the petitioner C. P. Sethi. That being so, cl. (b) of subsec. (1) of Section 12 of the Act clearly applied. It is not correct to argue that simply because C. P. Sethi had been given the restaurant on Theka, the provisions of cl. (b) of sub-s. (1) of Section 12 would not be attracted. C. P. Sethi was in possession of the premises in his own right. He was neither the agent nor a servant of the petitioner. The possession of C. P. Sethi cannot be said to be on behalf of the petitioner. The present is not a case where C. P. Sethi was being used by the petitioner to perform certain tasks on his behalf. Accordingly, the submission of the learned counsel for the petitioner that the possession of C. P. Sethi would be deemed to be of the petitioner cannot be accepted. The present is not a case where C. P. Sethi was being used by the petitioner to perform certain tasks on his behalf. Accordingly, the submission of the learned counsel for the petitioner that the possession of C. P. Sethi would be deemed to be of the petitioner cannot be accepted. In Upper Ganges Sugar Mills Ltd. v. Khalilur Rehman, ( AIR 1961 SC 143 ) : (1961 All LJ 27), the Supreme Court was called upon to consider the scope of expression of occupant used in Section 20 of the U. P. Zantindari Abolition and Land Reforms Act. The law, laid down by the Supreme Court in the said case, does not assist us in understanding the scope of cl. (b) of sub-s. (1) of Section 12 of Act No. 13 of 1972. 10. Looking at the context as well as the meaning of the word 'occupy used in cl. (b), sub-s. (1) of S.12 it is not possible to say that the possession of C. P. Sethi was not covered by the aforesaid provision. 11. Sri S. N. Misra, the learned counsel for the petitioner, next contended that the aforesaid clause applies only to a residential building and since does not apply to a non-residential building the Courts below committed an error in holding that the premises could be declared to be vacant under the aforesaid provision. The submission made i: devoid of substance. The opening provision made in sub-s. (1) of Section 12 clearly shows that it applies to a building. The word building has been defined in Section 3 of the Act. It includes both residential and non-residential buildings. The use of the word 'building in sub-s. (1) o Section 12 indicates that the application of els. (a) and (b) of sub-s. (1) of Section 12 cannot be confined to residential buildings. As a matter of fact wherever the legislature intended to confine the applicability of a particular provision to residential buildings and some other provision to non-residential buildings clear provisions were made to that effect. This is borne out from Section 12 itself. Some of the sub-sections apply to residential buildings exclusively and that has been so mentioned in those provisions. Similar is the case with respect of non-residential buildings. It is, therefore, not possible to say that cl. (b) of sub-s. (1) of Section 12 did not apply to the present case. 12. This is borne out from Section 12 itself. Some of the sub-sections apply to residential buildings exclusively and that has been so mentioned in those provisions. Similar is the case with respect of non-residential buildings. It is, therefore, not possible to say that cl. (b) of sub-s. (1) of Section 12 did not apply to the present case. 12. On the view taken above, T find that Writ Petition No. 1462 of 1977 is devoid of substance and is liable to be dismissed. 13. The other writ petition had been filed by Chandra Prakash Sethi. As has been noted above the premises had been allotted to him. This allotment order was, however, set aside by the District Judge on the ground that as he was unauthorised occupant under R. 10 (5) (d) of the rules framed under the Act the shop could not be allotted to him. The relevant provision of the aforesaid rule reads as under :- "(5) A building shall not ordinarily be allowed to the following persons or for the following purposes. (d) For accommodating a person who has entered into unauthorised occupation of the building or any part thereof without the written consent of the landlord." This rule came into force in May, 1977. This rule was in operation when the allotment order was made by the Rent Control and Eviction Officer in favour of C. P. Sethi. It, however, appears that the Rent Control and Eviction Officer passed the allotment order without considering the same. It was in the revision that the attention of the Court was invited to the said rule. The Court found that as C. P. Sethi was in unauthorised occupation, the premises could not be allotted to him. 14. The learned counsel appearing for C. P. Sethi, however, contended that the District Judge committed an error in holding that the aforesaid rule applied invariably to all the cases irrespective of the fact and circumstances where a person may be entitled to the allotment despite the fact that he was in unauthorised occupation. The learned counsel contended that the aforesaid interpretation made by the District Judge suffers from manifest error. It is true that the use of the word 'ordinarily, indicates that that rule laid down therein is capable of being deviated or departed in a fit case. The learned counsel contended that the aforesaid interpretation made by the District Judge suffers from manifest error. It is true that the use of the word 'ordinarily, indicates that that rule laid down therein is capable of being deviated or departed in a fit case. I have an occasion to consider the import of the word 'ordinarily in H. C. Dwivedi v. Addl. District Judge, (1978 All LR 875) : (1978 All LJ 1184). I find in that case that the word 'ordinarily, means that normally an unauthorised person should not be allotted a premises of which he has taken illegal possession. The word 'ordinarily means habitually and not casually. It cannot obviously mean 'always. Therefore, each case will have to be considered on merits; for holding that whether an allotment order should be passed in favour of as person who has taken 'unauthorised occupation of a building. 15. In Union of India v. Majji Jahgammayya, ( AIR 1977 SC 757 ) the Supreme Court had to consider the scope of the expression 'ordinarily in connection with a service rule. It held that the use of the said expression shows that the requirement of experience was capable of deviation. 16. Hence I find substance in the sub-mission of the learned counsel for C. P. Sethi that the learned Additional District Judge committed an error in giving) a wrong interpretation to the aforesaid cl. (d) of sub-r. (5) of R. 10 in holding that the case of C. P. Sethi for allotment was liable to be ignored as he was in: an unauthorised occupation. But I am, I however, not inclined to accept that the allotment order made in favour of C. P. Sethi should be upheld. Inasmuch as it is clear that the Rent Control and Eviction Officer passed the allotment order in ignorance of the aforesaid rule. As he did not notice the aforesaid rule and made the allotment order, the Rent Control and Eviction Officer cannot be said to have considered the circumstances which justified the passing of the allotment order in his favour. In this view of the matter, the allotment made in favour of C. P. Sethi cannot be upheld. This matter has to be considered by the Rent Control and Eviction Officer afresh. 17. In this view of the matter, the allotment made in favour of C. P. Sethi cannot be upheld. This matter has to be considered by the Rent Control and Eviction Officer afresh. 17. Sri K. D. Agrawal counsel for C. P. Sethi, however, urged that the District Judge committed an error in holding that only a part of the premises was liable to be declared vacant. The submission made was that as cl. (b) of sub-s. (1) of Section 12 of the Act applied, the whole of the premises has to be declared vacant under sub-s. (4) of Section 12. I am unable to accept the said submission. Sub-sec. (4) applies to any building or part, which a landlord or tenant has ceased to occupy. In the instant case, as only a part of the building had been permitted to be occupied by C. P. Sethi the; vacancy could be declared only in respect of that part. 18. For all the above reasons, Writ Petition No. 1462 of 1977 is dismissed. Whereas Writ Petition No. 1562 of 1977 succeeds partly and is allowed to the extent indicated above. In the circumstances, I direct the parties to bear their own costs in both the writ petitions.