Judgment : R. H. Zaidi, J. 1. Present petition is directed against the order dated 17.6.1996 passed by the Rent Control and Eviction Officer, Kanpur Nagar/addl. City Magistrate, (VI), Kanpur Nagar, declaring the shop in dispute situated on the ground floor of Building No. 111-A/19, G. T. Road, Kanpur (hereinafter referred to as 'the shop in dispute') as vacant, under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act' ). 2. THE brief facts of the case pertaining to the controversy involved in the case are that the aforesaid building (No. 111-A/19, G. T. Road, Kanpur) was constructed in two phases. In the first phase in 1962-63, the ground floor i.e. 5 shops including the shop in dispute and other residential portion were constructed. In the second phase in 1984-85, first and second floors and Balcony of the said building were constructed. THE shop in dispute was let out in 1964 to Shri Sardar Kuldeep Singh, father of the petitioner, who established his business in the name and style of M/s. Gurdeep Automobiles in the same. In 1975, the occupants of the shops at G. T Road were provided alternative commercial accommodations by Kanpur Development Authority at the locality known as Pratap Ganj, Gaderian Purwa, Kanpur, on the condition that they vacate the shops in their occupation at G. T Road, Kanpur and shift their business to that locality and none of their family members to remain at G. T Road, Kanpur. Occupants of the shops at the G. T Road were shifted to Pratap Ganj with a view to solve the traffic problem at G. T Road (National, Highway No. 2) which passes through the Kanpur City. Sardar Gurbaksh Singh also opted for vacating the shop in dispute and shifting his business to plot No. 45, Pratap Ganj. On 18.2.1982 Sardar Gurbaksh Singh intimated the Kanpur Development Authority that he has vacated the shop in dispute and shifted his business to Plot No. 45, Pratap Ganj. Thereafter a lease deed was executed in respect of Plot No. 45, in favour of the Sardar Gurbaksh Singh. It was in the year 1984-85 that the petitioner took on rent the shop in dispute and started the business in the name and style M/s. Jaswant Motors, without any order of allotment in his favour. Thereafter a lease deed was executed in respect of Plot No. 45, in favour of the Sardar Gurbaksh Singh. It was in the year 1984-85 that the petitioner took on rent the shop in dispute and started the business in the name and style M/s. Jaswant Motors, without any order of allotment in his favour. It was on an application filed by one Shri Gurmit Singh that proceedings under Section 16 of the Act were initiated. Under the orders passed by respondent No. 1 the Rent Control Inspector submitted his report to the effect that the shop in dispute was in possession of the petitioner who used to carry on business in the name and style M/s. Jaswant Motors. The petitioner had no allotment order in his favour in respect of the shop in dispute. The shop in dispute was owned by Smt. Jeevan Devi, the respondent No. 3, wife of Sardar Wariyan Singh r/o 111-A/19, Ashok Nagar, Kanpur City. The Inspector reported that legally the shop in dispute was vacant. 3. THE Rent Control and Eviction Officer issued notices to the petitioner and to the landlady-respondent No. 3, Smt. Jeevan Devi. THE petitioner refused to accept notice sent to him by post but subsequently accepted the same through Rent Control Inspector. In the meanwhile the respondent No. 3 also applied for release of the shop in dispute in his favour for personal use and statement/objection, firstly applied for inspection of the building thereafter filed a preliminary objection which was supplemented by another objection. THE 1 petitioner's main objection was that it was in the year 1984-85 that first floor and Balcony of the building in question were constructed, therefore, the shop in dispute should also be treated as new building and the provisions of the Act have got no application to it. 4. ON the other hand the case of the respondent No. 3 and others contesting respondent was that the shop in dispute was constructed in the year 1962-63 and the same was thereafter let out to Sardar Gurbaksh Singh in the year 1964. 4. ON the other hand the case of the respondent No. 3 and others contesting respondent was that the shop in dispute was constructed in the year 1962-63 and the same was thereafter let out to Sardar Gurbaksh Singh in the year 1964. Sardar Gurbaksh Singh vacated the shop in dispute and shifted his business to Pratap Ganj, Gaderian Purwa, Kanpur, in the year 1982, thereafter, the shop in dispute was occupied by the petitioner in 1984-85 as the tenant of respondent No. 3 without any order of allotment in his favour, therefore, in view of the provisions of Section 12 of the Act, the shop in dispute was vacant and was liable to be released or allotted in accordance with the provisions of the Act. In support of their respective cases the parties have produced evidence oral and documentary before the respondent No. 1. The contesting respondents have filed the extract of Assessment Register for the years i.e. 1962-68, 1968-73, 1973-78, 1978-87 and 1987-92 to prove that the ground floor of the aforesaid building i.e. 5 shops including the shop in dispute and the other residential portion were constructed in the year 1962-63 and were assessed to house and water tax since then. A copy of the application dated 18. 2. 1992 filed by Sardar Gurbaksh Singh before the Kanpur Development Authority intimating that he has vacated the shop in dispute and shifted his business to Pratap Ganj, Gaderian Purwa, Kanpur. Affidavit of Kuldip Singh, dated 23. 12. 95 to show that he was in occupation of the shop in dispute since 1984-85 independently, proposed plan of the first floor and the receipt of payment of fee issued by Kanpur Development Authority in 1988, The petitioner has also filed affidavit in support of his case and asserted that he was lawful occupant of the shop in dispute and was entitled to continue in occupation. It was also asserted by supplementary objection by the petitioner that in the year 1989 his father, Sardar Gurbaksh Singh, has died. He was, therefore, also entitled to occupy the shop in dispute as his heir and legal representative. It was also asserted by supplementary objection by the petitioner that in the year 1989 his father, Sardar Gurbaksh Singh, has died. He was, therefore, also entitled to occupy the shop in dispute as his heir and legal representative. From the statement of fact made in the order passed by the Rent Control and Eviction Officer it is apparent that the petitioner had played delaying tactice and has been attempting to delay the disposal of the case by filing frivolous applications and seeking unnecessary adjournment on false and concocted grounds. 5. THE Rent Control and Eviction Officer held that the building means the whole building or part thereof in occupation of the tenant or unauthorised occupant, the shop in dispute was, thus, a building within the meaning of the term used under the Act which was constructed in the year 1962-63 and was thereafter let out to Sardar Gurbaksh Singh in the year 1964 who vacated the same in the year 1982 and shifted his business of Automobiles and Motor Parts to the other locality of the Kanpur i.e. Pratap Ganj, Gaderian Purwa, Kanpur, permanently and that the shop in dispute was thereafter occupied by the petitioner in the year 1984-85 independently, without any order of allotment in his favour. THE same, therefore, in view of the provisions of the Act was vacant. Having recorded the aforesaid finding the Rent Control and Eviction Officer declared the shop in dispute as vacant by his judgment and order dated 17. 6. 1996 which is impugned in the present petition. 6. 1 HAVE heard Mr. K. M. Dayal, Senior Advocate, learned counsel appearing for the petitioner at length and Mr. A N. Sinha, Advocate, learned counsel appearing for the contesting respondent. There was a protracted hearing in this case which commenced on 7.8.1996 and concluded on 19.9.1996 of course with intermittent adjournments. Learned counsel for the petitioner, although it was not required, read out the entire petition including the Annexures, the counter-affidavit and rejoinder- affidavit, in, spite of the objection raised by the learned counsel for the respondent. Learned Counsel for the petitioner contended that unless he places the pleading and the proof which forms part of the record, it would not be possible for him to make out the case in favour of the petitioner. Learned Counsel for the petitioner contended that unless he places the pleading and the proof which forms part of the record, it would not be possible for him to make out the case in favour of the petitioner. According to his submissions, the proceedings before the Rent Control and Eviction Officer were rushed through and the facts noted by the Rent Control and Eviction Officer in his order were not correct. He has also filed supplementary-affidavit bringing on the record the material which was not filed before the Rent Control and Eviction Officer and also lengthy arguments in writing. The main questions involved in the present case are as to whether the shop in dispute was legally vacant and the same was rightly declared as vacant or not. The thrust of the argument of Mr. Dayal was that it was in the year 1986-87 that a major portion of the building in question i.e. first and second floors and the Balcony were constructed, therefore, the shop in question should also be treated as new construction and the provisions of the Act will not be applicable to it in view of provisions of Section 2 of the Act. According to his argument the proceedings initiated under Section 16 were, therefore, liable to be dropped and the order passed by Rent Control and Eviction Officer declaring the shop in dispute as vacant was liable to be quashed as the same was illegal and without jurisdiction. The other arguments/objections raised by means of written argument, I will deal with later. 7. ON the other hand learned counsel appearing for the contesting respondent submitted that the term building used in the Act means the entire building or portion thereof in occupation of a tenant or unauthorised occupant, therefore, the shop in dispute which was previously in occupation of Sardar Gurbaksh Singh and now is in occupation of the petitioner, is a building which was according to the findings recorded by the Rent Control and Eviction Officer constructed in the year 1962-63 is an old construction and the provisions of the Act have got full application over the same. He submitted that the addition or alteration made in the other parts of the building No. lll-A/19, G. T. Road, Kanpur, were wholly irrelevant for the purposes of the present case as admittedly the shop in dispute remained as it was constructed originally. He submitted that the addition or alteration made in the other parts of the building No. lll-A/19, G. T. Road, Kanpur, were wholly irrelevant for the purposes of the present case as admittedly the shop in dispute remained as it was constructed originally. The addition of Balcony on the first floor does not and cannot amount to new construction of the shop in dispute. 8. I have seriously considered the rival submissions made by the learned counsel for the parties and also carefully gone through the record of the case. In view of what has been stated above, for resolving the controversy involved in the case. I will have to see as to whether the shop in dispute is a new construction or can be deemed to be a new construction and as to whether the provisions of the Act and the Rules framed thereunder apply to it. In the Act the term building has been defined in clause (i) of Section 3 of the Act as under:- " (i) "building" means a residential or non-residential roofed structure and includes- (i) any land (including any garden), garages and out-houses, appurtenant to such building; (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof;" 9. THE aforesaid term 'building' came to be considered by this Court in Chunnoo Lal v. Addl. District Judge, Allahabad and other reported in 1975 AIR 362, wherein it was ruled as under:- "the word 'building' in the new Act has thus a special meaning and not the meaning ordinarily understood. It does not mean the entire superstructure, but means only the portion of a superstructure which is independently liable to be dealt with for purposes of letting out. This is the only meaning which the legislature could have in mind while enacting the new Act in the context of the modern system of construction of residential and non-residential building. A 'building' under this Act means only an independent allotable accommodation, whether singly situated or is part of a building complex. In the present case the landlord is occupying the first floor which under the definition of the 'building' given in the Act will be a 'building. Similarly the accommodation in occupation of the tenant, namely, the ground floor will be a 'building' within the meaning of the Act. In the present case the landlord is occupying the first floor which under the definition of the 'building' given in the Act will be a 'building. Similarly the accommodation in occupation of the tenant, namely, the ground floor will be a 'building' within the meaning of the Act. THE two are to be dealt with separately and independently and cannot be deemed to be part of a 'building' for purposes of this Act. " 10. THE Apex Court of the country in Mohd. Shafi v. VIIth Addl. District Judge, Allahabad and others, 1977 ARC 182, approved the aforesaid decision with appreciation and while considering the scope of the Explanation IV to Section 21, was pleased to rule as under:- "here, the word building obviously means the accommodation which subject-matter of tenancy. . . . . . . . . . . . . . . . . . . . . . . "where a super-structure consists of two or more tenements and each tenement is an independent unit distinct and separate from the other, the Explanation would be of no application, because each tenement would be a unit and not part of a unit. " In view of the aforesaid decisions, the shop in dispute itself, excluding the other portions of the super structure, was a building within the meaning of a term used under the Act. We will have to see as to whether the shop in dispute could be held to be a new building. Admittedly no addition or alteration was made in the shop in dispute, it remained as it was originally built. Simply because a Balcony was converted into a room on the first floor and into a Varandah in front of all the 5 shops, for convenience of the passers-by, it cannot be said that the shop in dispute was constructed a new. 11. BEFORE the authority below or before this Court, no material has been placed by the petitioner to show that the construction of the shop in dispute was in any manner altered or modified, only a Balcony is stated to have constructed on first floor. Therefore, the submissions made by the learned counsel for the petitioner to the contrary is not acceptable to me. So far as the question of vacancy in the shop in dispute is concerned, sub-section (1) of Section 12 provides as under:- "12. Therefore, the submissions made by the learned counsel for the petitioner to the contrary is not acceptable to me. So far as the question of vacancy in the shop in dispute is concerned, sub-section (1) of Section 12 provides as under:- "12. Deemed vacancy of building in certain cases - (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if--------------- (a) he has substantially removed his effects therefrom, or" 12. ADMITTEDLY Sardar Gurbaksh Singh, the father of the petitioner, who was the tenant in the shop in dispute, vacated the shop in dispute and shifted his business to Pratap Ganj, Gaderian Purwa, Kanpur, and gave an intimation in writing to the Kanpur Development Authority on 18.2.1982. Thus, the shop in dispute fell actually and legally vacant under Clause (a) of sub-section (1) of Section 12 of the Act and Sardar Gurbaksh Singh ceased to occupy the same. Sub-section (4) of Section 12 is also relevant for the purpose of present case, which reads as under:- " (4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub- section (1), or sub-section (2), or sub-section (3), sub-section (3-A) or sub-section (3-B), shall, for the purposes of this Chapter, be deemed to be vacant. " In view of aforesaid provision the shop in dispute shall be deemed vacant. Admittedly the petitioner in the year 1985 took the shop in dispute on rent without obtaining any order of allotment in respect of the said shop and till date he has not obtained any order of allotment from the Rent Control and Eviction Officer as provided under the Act. 13. AFTER Sardar Gurbaksh Singh having ceased to occupy the shop in dispute, it was not open to the landlord or any other person to occupy the shop in dispute in any capacity otherwise then under an order of allotment of release under Section 16. It was not open to the respondent No. 3 to permit the petitioner to occupy the shop in dispute in view of the provisions of Sections 11 and 13 of the Act, which are reproduced below: - "11. Prohibition of letting without allotment order.- Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16. 13. Prohibition of letting without allotment order.- Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16. 13. Restrictions on occupation of building without allotment or release - Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or otherwise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provisions Section 31 be deemed to be an unauthorised occupant of such building or part." 14. THE petitioner occupied the building in question in contravention of the provisions of the Act, cannot claim any right of occupation on the basis of his illegal act. It is well settled in law that the occupation of any building by unauthorized person in any capacity is no occupation and on the basis of the same no person can claim right to continue to occupy. In the eye of law the building remains vacant and open for release or allotment in accordance with the provisions of the Act. I need not refer catena of cases, on the point it would suffice to refer a full Bench decision of this Court in Nutan Kumar v. IInd Addl. District Judge Banda, ARC 1993 (2) 204, wherein in paragraphs 36 and 37 it was ruled as under:- "the provisions in the new Act in this regard are materially different. Section 11 and 13 of the new Act completely ban the letting or occupation of any building except under an order of allotment/release passed by the District Magistrate. Even where the District Magistrate fails to exercise the power of allotment under Section 16 of the new Act, the landlord can neither let out the building to anyone nor can be occupied it himself. . . . . . . . . . . . . . In no circumstances letting or occupation of any building except under the order of allotment/release to be passed by the District Magistrate under the new Act is permitted. The ban on letting or occupation of any building falling within the purview of new Act is complete and absolute. " 15. . . . . . . . . . . In no circumstances letting or occupation of any building except under the order of allotment/release to be passed by the District Magistrate under the new Act is permitted. The ban on letting or occupation of any building falling within the purview of new Act is complete and absolute. " 15. IN view of the aforesaid statutory provisions of the Act and law laid down by this Court, the status of the petitioner in the shop in dispute was nothing but of an authorised occupant and in the eye of law the shop in dispute was vacant. Section 12 of the Act creats vacancy by fiction of law under the conditions mentioned therein. IN the instant case, the respondent No. 1 was, therefore, legally justified in declaring the shop in dispute as vacant. 16. AT this stage, I may notice the alternative argument made by the learned counsel for the petitioner to the effect that even after the death of Sardar Gurbaksh Singh, who died in the year 1989, the petitioner continued to remain in occupation of the shop in dispute. Therefore, he cannot be said to be an unauthorised and unlawful occupant and the shop in dispute cannot be said to be vacant. It was in the year 1982 when Sardar Gurbaksh Singh ceased to occupy the shop in dispute and the same has become vacant. Petitioner occupied the shop in dispute in the year 1984-85 without any order of allotment in his favour from the District Magistrate in his independent capacity not as the heir of Sardar Gurbaksh Singh which is evident from the statement of fact made by the petitioner in the affidavit filed by him in Revision No. 10 of 1995 - Kulwant Kaur v. Kanpur Development Authority decided on 23.12.1995 wherein he has categorically and clearly admitted that he was in occupation of the shop in dispute independently since 1985. The said facts have also been noticed by the respondent No. 1 in his order impugned in the present petition. Petitioner is, therefore, estopped from contending that he was in occupation of the shop in dispute as the heir of Sardar Gurbaksh Singh. He can also not be permitted to contend that on the death of Sardar Gurbaksh Singh, in the year 1989 his possession stood regularised. Petitioner is, therefore, estopped from contending that he was in occupation of the shop in dispute as the heir of Sardar Gurbaksh Singh. He can also not be permitted to contend that on the death of Sardar Gurbaksh Singh, in the year 1989 his possession stood regularised. The respondent No. 1 after perusing the entire evidence which for is part of the record concluded as under:- Xxxxxx The findings recorded by the respondent No. 1 are findings of fact which are based on relevant evidence on the record. In my opinion the respondent No. 1 did not commit any error of law or jurisdiction in declaring the shop in dispute as vacant. 17. SO far as the points raised by the learned counsel for the petitioner in his written arguments are concerned, point No. 1 to 4 have already been dealt with and answered in the preceding paragraphs of this judgment. The other points are although irrelevant for the purposes of the controversy involved in the case. They were also not pressed before the authority below and not raised by the learned counsel for the petitioner during the course of argument but I deal with the same to avoid any technical objection by the petitioner. 18. IN point No. 5 it has been asserted that Rent Control and Eviction Officer rushed through the proceedings. The proceedings under the Act whether or allotment or release or other proceedings are required to be disposed of expeditiously as it is evident from the provisions of the Act and the Rules. The Rent Control and Eviction Officer did not commit any illegality if he has not permitted the petitioner to linger on the proceedings unnecessarily and decided the same, after following the procedure prescribed under the law. The petitioner was afforded full opportunity to defend himself as it is evident from the statement of facts made in the impugned order. 19. SO far as point No. 6 is concerned, in view of what has been stated above the summoning of the map of the building was wholly irrelevant as the structure of the shop in dispute remained unaltered and untouched. 19. SO far as point No. 6 is concerned, in view of what has been stated above the summoning of the map of the building was wholly irrelevant as the structure of the shop in dispute remained unaltered and untouched. Points No. 1 and 9 have already been answered above inasmuch as in view of provisions of Sections 11 and 13 of the Act it was not open to respondent No. 3 either to give any assurance to the petitioner or to let out the same in violation of the provisions of the Act and Rules framed thereunder. Even if no intimation of vacancy was given by the tenant or the landlord it was not open to the petitioner to occupy the shop in dispute without any order of allotment. Further plea of assurance was not taken by the petitioner in the objection and the said point was neither raised nor pressed before the respondent No. 1. 20. SO far as Point No. 8 is concerned, it may be stated that the inspection of the building in question was made after following the procedure prescribed under the law. Further on the admitted facts of the case, petitioner occupied the shop in dispute without obtaining any order of allotment from the District Magistrate, therefore, his occupation was illegal and unauthorised. The report of the Inspector, therefore, cannot be said to be very material for the purpose of the present case. Point Nos. 10 and 11 were neither raised nor pressed before the authority below and the case cited in support thereof are distinguishable on facts and has got no application to the present case. Mansa Ram's case 1984 (1) ARC 17 (SC) deals with the provisions of Central Provinces and Berar Letting of Houses and Rent Control Order, 1949, which are materially different from the provisions of U. P. Act, No. XIII of 1972. In view of the provisions of Sections 11 and 13 of the Act, it is not open to the petitioner to continue in occupation of the building in question. His occupation is apparently in contravention of the Act and he is also liable to be proceeded against under Section 31 of the Act. 21. IN view of the aforesaid discussions, the writ petition lacks merit, it fails and is dismissed with costs. Interim order is also discharged. Petition dismissed.