JUDGMENT K. N. Misra, J. - These writ petitions arise out of proceedings under Section 16 of the U.P. Act No. XIII of 1972 (for short, the Act) in respect of shop No. 1087 situate in Motibagh, Subhash Nagar, district Faizabad of which the opposite party No. 5, D. A. Reneanxe is the landlord. This shop was occupied by one Gayadin as its tenant. He is said to have vacated the shop and inducted one Mohd. Mobin, who occupied it without obtaining any order of allotment. The status of Mohd. Mobin was challenged as being unauthorised occupant. The opposite party No. 3 Mohd. Kalim, and opposite party No. 4 Abdul Jabbar had moved an application for alloliru.it on 13th March, 1978 and 14th March, 1978 respectively with the a'legation that Mohd, Mobin was an unauthorised occupant. It appears that Mohd. Mobin had contested the application for allotment asserting that he was admitted as partner in business by Gaya Din and his tenancy stood regularised under theprovisions of Section 14 of the Act. An affidavit of landlord dated 1.2.1979' was also filed admitting the fact that Gaya Din had in the year 1977 admitted Mohd, Mobin as partner in the business and since then he had been paying, rent to him. The opposite party No. 3 Mohd. Kalim filed objection to the above on 2.2.1979 controverting said fact. He had also got his allotment application renewed on 3.1.1979. Later on the opposite party No. 3 Mohd. Kalim, moved an application on 26.12,1979 before the opposite party No. 2, A. D. M./Rent Control and Eviction Officer, Faizabad stating that Mohd, Mobin has vacated the shop in question and has put the petitioner in possession illegally. The petitioner is, thus, in unauthorised occupation over the said shop as he holds no allotment order in his favour. The opposite party No. 3, thus, prayed that the shop in question be allotted to him, Subsequently an application was also moved by the landlord on 11.6.1980 under Section 16 (1) of the Act for release of the shop in his favour for his own use and occupation stating that he wants to do business of sale of electrical equipments therein on his retirement, 2. The Prescribed Authority/R. C. E. O. after taking into consideration all facts and material on record declared vacancy in respect of the shop in question vide order dated 3.2,1982, The petitioners, thereupon preferred application for allotment. The opposite party No. 3 Mohd. Kalim and opposite party No. 6 Manohar Lal Jain, who is one of the partners of the petitioner firm Messers Sangita Oswal Hosiery also applied for allotment of the shop in question. The opposite party No. 2 first dealt with application for release moved by the landlord and found it to be devoid of any merit and rejected it by order dated 11.4.1984. And thereupon proceeded to consider the matter regarding allotment of shop in question and after due notice and hearing to all concerned parties, allotted it to the opposite party No. 3 Mohd, Kalim vide order dated 30.4.1984 (Annexure No. 1). Aggrieved by it, the petitioner preferred revision under Section 18 of the Act before the District Judge, Faizabad, This revision was heard and dismissed by the III Additional District Judge, Faizabad vide order dated 21.10.1986, The petitioners have preferred Writ Petition No. 7524 of 1986 against these orders. The landlord Denil Anthony Reneanxe had also preferred revision under Section 18 of the Act against order dated 11.4.1984 by which his application for release of the shop in question in his favour was rejected by the opposite party No. 2. This revision has also been dismissed vide order dated 21.10.1986 passed by the III Additional District Judge, Faizabad. This order is challenged in Writ Petition No. 8301 of 1986. 3. Since in both these writ petitions similar question of fact and law are involved for consideration, and, as such, these are taken up together and are decided by this common order. 4. I have heard learned counsel for the parties and have perused the impugned orders very carefully. 5. Learned counsel Sri. 3. Since in both these writ petitions similar question of fact and law are involved for consideration, and, as such, these are taken up together and are decided by this common order. 4. I have heard learned counsel for the parties and have perused the impugned orders very carefully. 5. Learned counsel Sri. A. N. Verma, appearing for the petitioners Messrs Sangita Oswal Hosiery urged that since application moved by opposite party No. 2 in the year 1978 was renewed only for once on 3.1.79 and thereafter it was not renewed in subsequent years, and, as such, he could not be given preference and relative priority in allotment of the shop in question in comparison to the petitioners, who had applied for allotment on 3.2.1982 just after vacancy of the shop was declared by the Rent Control Officer, Faizabad on that date. It was further contended by the learned counsel that since the petitioner was in actual physical possession on the date he had applied for allotment, and, as such, preference should have been given to him while considering the applications for allotment. Learned counsel also urged that since the petitioners are in possession ever since Mohd. Mob in had vacated the shop in the year 1982 and he has been doing his business therein, and, as such, it would be quite just and proper to allot the premises in question to the petitioner so that he may not be uprooted from the place wherein he has been doing business ever since 1979. Learned counsel further contended that although the petitioners' possession was treated to be unauthorised over the shop in question and its vacancy was declared vide order dated 3.2.1982, but since his application for allotment moved on 3.2.1982, was prior in time than the other applications though moved for allotment by the opposite parties No. 3 and 6 on the same day, and, as such, the premises should have been allotted to the petitioners in comparison to opposite party No. 3 keeping in view the principle first come first serve . Learned counsel strenuously contended that since the petitioners had occupied the premises bona fide and without any deliberate intention to commit breach of the provisions of the Act and the Rules, and, as such, the petitioners' prayer for allotment of shop in question would not deserve to be rejected under subclause (d) of clause (5) of Rule 10 of the Rules, I have considered these submissions, but I find no force in these arguments. 6. It is not disputed that the petitioner's had occupied the shop in question without obtaining any allotment in their favour. It appears that the outgoing tenant had inducted the petitioners in the shop in question without any lawful authority. Thus, the possession of the petitioners over this shop was rightly treated to be unauthorised and its vacancy was validly declared on 3.2.1982 by the Rent Control and Eviction Officer, Faizabad, The order declaring vacancy was not challenged by the petitioners. They submitted to it and moved application for its allotment on that very date. Since the petitioners had occupied the premises illegally and without securing any allotment order in respect of it, and, as such, their possession over the premises in question was altogether unauthorised and absolutely illegal and unwarranted in law. It, therefore, could not be looked with impunity while considering the matter regarding allotment of the premises in question. The relevant provisions s of clause (5) of Rule 10, which was substituted by Notification dated May 25, 1977 provides that a building shall not ordinarily be allotted to persons enumerated in clause (a) to Clause (d). Rule 10 (5) (d) is quoted hereunder : 10 (5) A building shall not ordinarily be allotted to the following persons or for the following purposes (a) . (b) . (c) . (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. 7. In the instant case it is not disputed that the petitioners had occupied the shop in question on being inducted therein in unauthorised manner by Mohb. Mobin without any allotment order no? they had occupied it with the written consent of the landlord. It is not disputed that the landlord had not given any written consent. He had rather applied for release of the shop in question in his favour under Rule 16, as referred to above. Mobin without any allotment order no? they had occupied it with the written consent of the landlord. It is not disputed that the landlord had not given any written consent. He had rather applied for release of the shop in question in his favour under Rule 16, as referred to above. Thus, there is no escape from the conclusion that the aforesaid provision Rule 10 (5) (d) would get attracted to the present case and the petitioner would not be entitled to get allotment of the shop in his favour as they had entered into unauthorised occupation over it. 8. Learned counsel had laid much stress on the word 'ordinarily' appearing in subRule (5) of Rule 10 and urged that this Rule is merely directory and not mandatory so as to be applied in each and every case for refusing prayer for allotment of a person who has occupied the premises bona fide though his occupation may be treated to be unauthorised as he had entered into possession over the premises without written consent of the landlord, and without securing allotment order in his favour. I do not find any merit in this contention as well. 9. In Umesh Chandra Srivastava vs. Sheo Murti Lal and others (1982 (1) All Rent Cases 741) it has been observed : It is true that the word 'ordinarily' has been used which would indicate that the jurisdiction of the Prescribed Authority to pass an allotment order is not completely barred. However, in view of the use of word 'ordinarily' the Prescribed Authority will have to indicate some circumstances justifying allotment in favour of a person who comes within the prohibited category. 10. I am in respectful agreement with the view expressed in Umesh Chandra's case (Supra) and I find that the use of word 'ordinarily' in SubRule (5) of Rule 10 itself emphasises the fact that normally a premises shall not be allotted to a trespasser but the Prescribed Authority is not bound to refuse allotment in all the cases. The authority will still possess jurisdiction and can allot the premises even to a person who has entered into unauthorised occupation over the premises in question in some extra ordinary circumstances justifying the allotment in his favour. The authority will still possess jurisdiction and can allot the premises even to a person who has entered into unauthorised occupation over the premises in question in some extra ordinary circumstances justifying the allotment in his favour. But the discretion is to be exercised with great care and caution and the Prescribed Authority will have to indicate reasons justifying allotment in favour of such person. Thus, if the Prescribed Authority has, in view of said provision, refused to make allotment of the premises to a person who has entered into unauthorised occupation of the premises in question, the order cannot be taken to be illegal and without jurisdiction. 11. In the present case, I do not find any mitigating circumstances which may be taken into account for making allotment of the shop in question to the petitioners by deviating from the aforesaid Rule which provides that a building or part thereof shall not ordinarily be allotted to a person who has intered into unauthorised occupation without the written consent of the landlord. 12. Further, so far as the argument regarding renewal of application of allotment every year as required under Rule 10 (4) of the Rules is concerned, 1 am of the opinion that if same proceedings were taken before the expiry of the year in which application for allotment was made or was renewed for that year, then no renewal would be required for treating it to be a subsisting application. This view finds support from the decision in Brij Raj vs. District Judge, Kanpur and others (1985 (2) All R C 447) wherein it has been held; Where an application is such which has not been rejected as not maintainable and in respect whereof some proceeding was taken before the expiry of the year in which it was made, no renewal was called for before treating it to be a subsisting application. 13. In the present case application for allotment movedin.1978 by the opposite party No. 3 was got renewed on 3.1.1979. The opposite party No. 3 had moved application on 26.12.1979 before the Prescribed Authority that the shop has fallen vacant as Mohd. Mobin has vacated it and the petitioners are in unauthorised occupation of the same and on it the proceedings were initiated, and ultimately the vacancy of the shop was declared on 3.2.1982. The opposite party No. 3 had moved application on 26.12.1979 before the Prescribed Authority that the shop has fallen vacant as Mohd. Mobin has vacated it and the petitioners are in unauthorised occupation of the same and on it the proceedings were initiated, and ultimately the vacancy of the shop was declared on 3.2.1982. Thus, since proceedings had started in the year 1979 on the application moved byopposite party No. 3, as already referred to above, and., as such, renewal of application was not necessary. It was after declaring vacancy of shop and also after considering and rejecting the application for release moved by the landlord that the Prescribed Authority had allotted the shop in question toOpposite Party No. 3 by the impugned order after' considering all facts and circumstances. Thus, I find no merit in the above contention of the learned counsel for the petitioner nor the order can be said to be illegal and without justification on the said ground urged by the learned counsel. 14. Learned counsel had next urged that since the opposite party No. 3 is in occupation of another shop in the building as a tenant thereof, and, as Such, he could not have been allotted the shop in question in preference to the 'petitioners., who would be put at great loss and sufferance by vacating the shop wherein they are doing their business since 1979, I do not find any merit in this contention as well. 15. It is not borne out From record that the opposite party No. 3 is in occupation of any other shop in the building in question or that he has got any other shop in his tenancy elsewhere in the city. It was urged that father 'of opposite party No, 3 is occupying a shop as tenant thereof but it has not been established at all that the opposite party No. 3 is doing business therein or that he has got any share or interest in the business carried by his father, It has been asserted by the opposite party No. 3 that he is separated from his father and has nothing to do with his business and I do not find anything on record to disbelieve it. Thus, in my opinion the fact that the father of the opposite party No. 3 has got a shop in his tenancy in which he is doing business Cannot be taken to be a mitigating circumstance justifying allotment in favour of the petitioners, who have been found to be in unauthorised occupation of the shop in question. The provisions of Rule 10 (5) (d) of the Rules have been tightly applied in the instant case and the prayer of the petitioners for allotment of the shop in question in their favour has been rightly Rejected. 16. Learned 'Counsel for the petitioners had next contended that the priority Rule contained in Rule 10 (1) (11?) has been violated by the Prescribed Authority by making allotment to the opposite party No, 3 in preference to the petitioners who had moved their application on 3.2.1981 It was urged that the application of the petitioners for allotment was prior in time than the applications moved by the opposite parties No, 3 and 6'although moved on sameday, and, as such, the shop in question should have been allotted to the petitioners irrespective of the provisions contained in Rule 10 (5) (d) of the Rules. I do not find any merit in this contention as well. 17. As observed above, the petitioners who were in unauthorised occupation of the shop in question could not as of a right claim allotment of that shop in view of the provisions contained in said Rule 10 (5) (d). Thus, what could not be claimed as of a right diretly, the same cannot be claimed and achieved indirectly by taking shelter behind Rule 11 of the Rules, and urging that since the application for allotment moved by the petitioner was of prior in time and, as such, the premises should have been allotted to them in preference to the opposite party No. 3. Besides that the said fact has been hotly disputed that the petitioners' application for allotment was of prior in tune and so no decision can be based on disputed questions of fact in the writ petition. Thus, the said contention of the learned counsel is, accordingly rejected. 18. Besides that the said fact has been hotly disputed that the petitioners' application for allotment was of prior in tune and so no decision can be based on disputed questions of fact in the writ petition. Thus, the said contention of the learned counsel is, accordingly rejected. 18. In view of the above there appears to be no error of fact, law or jurisdiction in the impugned order of allotment of shop in question to opposite party No. 3 so as to call for interference by this Court in exercise of powers under Article 226 of the Constitution. 19. In the result, the writ petition No. 5724 of 1986 fails being devoid of merits, and, it is accordingly dismissed. 20. Learned counsel for the petitioner Denil Anthony Reneanxe in writ petition No. 8301 of 1986 urged that the petitioner who was in service in the U.P. Electricity Board, Faizabad retired on 5th June, 1980. In the building in question there are ten shops, but all of them were occupied by the tenants except the one which was occupied in an unauthorised manner by the petitioners Messrs Sangita Oswal Hosiery. The outgoing tenant Mohd. Mobin had put them in occupation in an unauthorised manner without his consent. The petitioner after his retirement had applied on 11.6.1980 for the release of the shop under Rule 16 of the Rules on the ground that he wants to establish his own business of electrical instruments etc. During his employment he was 'Mistry' in the Electricity Department and so he has got the expertise and knowledge for successfully doing said business. The Prescribed Authority after considering all facts and material on record rejected the said application vide order dated 11.4.1984 holding that the need of the landlord for releasing the shop in his favour is not genuine and bona fide. This order has been confirmed in revision by the III Additional District Judge by judgment and order dated 21.10.1986. A finding has been recodred that besides the shop in question there are nine other shops and a motor garage, which are all in occupation of tenant*; and the landlord is maintaining himself from that income. This order has been confirmed in revision by the III Additional District Judge by judgment and order dated 21.10.1986. A finding has been recodred that besides the shop in question there are nine other shops and a motor garage, which are all in occupation of tenant*; and the landlord is maintaining himself from that income. It has also been mentioned that a very short time age prior to applying for release of the shop in question, the other tenant Abdul Shamad, who was tenant of one of the shops had vacated it and the landlord has letout the same on the monthly rent of Rs. 100/ to Mushtaq Khan. Thus, considering this fact, the Prescribed Authority has held that the alleged need of the landlord for doing business in the shop in question is neither genuine nor bona fide. I do not find any error in this finding. If the petitioner wanted a shop for doing business therein, then he should not have let out the shop which was vacated by Abdul Shamad and he should have occupied it himself for starting his own business therein. This finding has been Confirmed by the revisional court, and it has also been mentioned in the order that two shops, namely shop Nos. 1088 and 1081 had also fallen vacant, but the petitionerlandlord had given his consent for their allotment in favour of the applicants seeking allotment of these shops which had fallen vacant. It is, thus, quite apparent that the need of the petitionerlandlord for the release of the shop in question is neither bona fide not genuine and, thus, his application for the release of the shop in question has been rightly rejected. 21. Learned counsel for the petitioner had, however, urged that the prospective allottee could not 'Contest the application for release, and, as such the aforesaid evidence which was produced opposing the release application could not be admitted nor the impugned orders could be based on that evidence rejecting the release application. This argument appears to have been raised before the opposite party No. 1 and he has observed, and in my opinion quite correctly, that the opposite party has merely provided material on record for considering on merits whether need of the applicant lanlord for release is bona fide and genuine or not. This argument appears to have been raised before the opposite party No. 1 and he has observed, and in my opinion quite correctly, that the opposite party has merely provided material on record for considering on merits whether need of the applicant lanlord for release is bona fide and genuine or not. This evidence, which has been brought on record 'clearly indicated that if the landlord genuinely needed the shop in question for starting his business, he could have occupied the shop which had fallen Vacant on being vacated by Abdul Samad and he should not have let it out to Messrs Mushtaq Shoe Makers on monthly rent of Rs. 100/. Further, if his need was bona fide and genuine, he should have occupied and applied for release the other two shops which had fallen vacant and should not have given his consent for the allotment of said shops to other applicants. Thus, in my opinion, the 'opposite parties No. 1 and I have 'committed no error in taking into consideration the said material 'evidence which was brought on record while Considering on merits the application for release. 22. Thus, in view of the above, I find no legal infirmity n6r any error of fact, law or jurisdiction in the impugned orders so as to call for interference by this Court in exercise of powers under Article 226 of the Constitution. 23. In the result, the writ petition fails and is accordingly dismissed being devoid of merits. 24. Learned counsel Sri A. N. Verma, Advocate appearing for the petitioners Messrs Sangita Oswal Hosiery and another in Writ Petition No. T::24 of 1986 had in the end made an oral prayer that the petitioners be given six. months, time to vacate the shop in question, namely, shop No. 1087 situate in Motibagh, Subhash Nagar, Faizabad so that they may make arrangement during this period and vacate the premises. Learned counsel urged that the petitioners are prepared to give undertaking in this regard. Learned counsel for the opposite party No. 3 urged that the time prayed for by the petitioners is too long period and if the Court is inclined to consider the prayer, a shorter period may be allowed to the petitioners to vacate the premises. 25. Learned counsel urged that the petitioners are prepared to give undertaking in this regard. Learned counsel for the opposite party No. 3 urged that the time prayed for by the petitioners is too long period and if the Court is inclined to consider the prayer, a shorter period may be allowed to the petitioners to vacate the premises. 25. Giving my anxious consideration to these submissions, I find it appropriate to allow time to the petitioners till 31st July, 1987 to vacate the premises and deliver vacant possession to the opposite party No. 3 over the shop in question provided the petitioners furnish written undertaking within two weeks from today to the Prescribed Authority/Rent Control and Eviction Officer, Faizabad to the effect that they will abide by the order of the Court and will vaeate the shop in question by 31st July, 1987 and deliver vacant possession to the opposite party No. 3. They will also give an undertaking that during this period they will not sublet the shop in question or part thereof, nor they will put anyone else in possession as lessee, licensee or in any other capacity whatsoever by any arrangement, deed or document, and, that they will not cause any damage or make any alteration in the shop in question, of any nature whatsoever. In case the undertaking is not filed by the petitioners within the time allowed, or if any of the conditions in. the undertaking is broken, then there will be instant eviction and the opposite party No. 3 will be entitled to obtain possession in pursuance of the allotment order. 26. No order as to costs. (Petitions dismissed)