JUDGMENT Hon’ble Shashi Kant Gupta, J.—This writ petition has been filed against the order dated 13.8.2009 passed by Additional District Judge/Special Judge (Anti Corruption), Varanasi in Revision No. 46 of 2005 (Smt. Sheela Devi v. Patanjali Mocate and others) upholding the orders dated 16.12.2004 and 30.4.2005 passed by the Rent Control and Eviction Officer (in short “RCEO”) in Case No. 96 of 2001 whereby vacancy of the disputed premises was declared and release order was passed in favour of the Respondent No. 2 under Section 16 (1)(b) of UP Act No. 13 of 1972 (in short “Act”). 2. Brief facts of the case are as follows; 3. The Respondent No. 2 is a owner and landlord of the disputed premises. The Respondent No. 2 moved an application before the concerned authority under Section 16 (1)(b) read with Section 12 of UP Act No. 13 of 1972. The case was registered as Case No. 96 of 2001 before the RCEO. The matter was contested by the parties and by order dated 16.12.2004 vacancy of the disputed premises was declared by the RCEO. Thereafter, by order dated 30.4.2005 the disputed premises was released under Section 16 (1) (b) of the Act by the RCEO in favour of the landlords. Being aggrieved and dissatisfied with said orders, a Revision No. 46 of 2005 was filed under Section 18 of the Act and the said revision was dismissed by order dated 13.8.2009. Hence, the writ petition. 4. Learned counsel for the petitioner submitted that the father-in-law of the petitioner was occupying in the disputed premised since 30-40 years and after his death, the tenancy was inherited by her, as such, she cannot be said an unauthorized occupant. It was further submitted that the orders passed by the Courts below are illegal, perverse and liable to be set aside. 5. Per contra, learned counsel for the landlords submitted that the petitioner has illegally occupied the disputed premises in the year 1996 without any allotment order, as such, she is an unauthorized occupant and liable to be evicted. It was further submitted that the petitioner herself filed an injunction suit wherein she has not stated that she has inherited the tenancy from her father-in-law. Only this much has been said that she is occupying the disputed premises since 1990. 6. Heard the learned counsel for the parties and perused the record. 7. It was further submitted that the petitioner herself filed an injunction suit wherein she has not stated that she has inherited the tenancy from her father-in-law. Only this much has been said that she is occupying the disputed premises since 1990. 6. Heard the learned counsel for the parties and perused the record. 7. The contention of the petitioner that she has inherited the tenancy from her father-in-law who was occupying the disputed premises since 30-40 years cannot be accepted for the reasons that the petitioner failed to adduce any cogent evidence before the Courts below to establish that her father-in-law was the tenant of the disputed premises since last 30-40 years. The record of the case further reveals that the assessment record of the Nagar Palika from 1996 to 2002 does not either carries the name of the father-in-law or of the petitioner. It is also pertinent to mention that in the aforesaid injunction suit, the petitioner has not pleaded that she has inherited the tenancy from her father-in-law who was alleged to be occupying the disputed premises since last 30-40 years. Besides this, it was also admitted that there is no allotment order in favour of the petitioner. Therefore, in view of Section 13 of the UP Act No. 13 of 1972, the petitioner would be deemed to be an authorized occupant and Courts below were fully justified in declaring the vacancy of the disputed premises and passing the release order in favour of the landlords since the petitioner was occupying the disputed premises without any allotment order. 8. The contention of the learned counsel for the petitioner that even if it is assumed that the petitioner is a trespasser, no proceedings under Section 12/16 of the UP Act No. 13 of 1972 can be initiated in the matter. This argument of the petitioner is misconceived and cannot be accepted. 9. In this connection, the relevant provisions of the said Act need to be set out. Sections 11, 12, 13 and 31 read as follows : “11. Prohibition of letting without allotment order.—Save as hereinafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16. 12. 9. In this connection, the relevant provisions of the said Act need to be set out. Sections 11, 12, 13 and 31 read as follows : “11. Prohibition of letting without allotment order.—Save as hereinafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Section 16. 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 (b) he has allowed it to be occupied by any person who is not a member of his family, or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. (3) in the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy; Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. xxx xxx xxx xxx xxx xxx (3-A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation or under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town area to which he has been so transferred, whichever is later. (3-B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, municipality, notified area or town area in which the said building is situate, and such engagement ceases for any reason whatsoever, and he is landlord of any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the first mentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceedings under Section 21 or otherwise. (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. (5) A tenant or, as the case may be, a member of his family, referred to in sub-section (3) shall, have a right, as landlord of any residential building referred to in the said sub-section which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 to apply under clause (a) of sub-section (1) of Section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remaining provisions of this Act do not apply. 13. 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 of Section 31, be deemed to be an unauthorised occupant of such building or part. 31. Penalties.—(1) Any person who contravenes any of the provisions of this Act or any order made thereunder or attempts or abets such contravention, shall be punished on conviction with imprisonment of either description for a term which may extend to six months or with fine which may extend to five thousand rupees or with both. (2) Whoever demolishes any building under tenancy or any part thereof without lawful excuse shall be punished, on conviction, with imprisonment of either description for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. (3) Where a person has been convicted for contravention of sub-section (1) of Section 4, the Court convicting him may direct that out of the fine, if any, imposed and realised from the person so convicted, an amount not exceeding the amount paid as premium of additional payment over and above the rent for admission as a tenant or sub-tenant to any building may be paid to the tenant by whom such payment was made : Provided that any amount so paid to the tenant shall be taken into account in awarding compensation or restitution to him in any subsequent claim.” 10. The plain reading of Section 13 of the Act clearly goes to show that any person occupying the premises without any allotment order will be deemed to be an unauthorized occupant of the premises and in the present case, neither the petitioner was able to produce any allotment order in his favour nor was entitled for any benefit under Section 14 of the Act. 11. In terms of Section 13 of the Act, without an order of allotment, tenants status under the deeming provision is that of an unauthorized occupant and that of trespasser and the suit for getting back possession from the trespasser can also be filed. 11. In terms of Section 13 of the Act, without an order of allotment, tenants status under the deeming provision is that of an unauthorized occupant and that of trespasser and the suit for getting back possession from the trespasser can also be filed. However, it does not debar the rent control and eviction officer/appropriate authority under the Act from setting in motion the machinery for declaring vacancy of the premises in dispute when he is of the opinion that the premises which comes within the ambit of the rent control act is being occupied by the unauthorized occupant/trespasser without an allotment order. The UP Act No. 13 of 1972 of the Act does not make any distinction between the unauthorized occupant and the trespasser so as to limit the power of the Rent Control Eviction Officer/District Magistrate from initiating the proceedings under Section 12 of the Act particularly when the landlord fails to taken any eviction proceedings against the trespasser. 12. The Apex Court in the case of Nutan Kumar and others v. IInd Additional District Judge and others, 2002 (2) ARC 645 has held that Section 13 of the said Act specifically provides that a person who occupies, without an allotment order in his favour, shall be deemed to be an unauthorized occupant of such premises. As he is in unauthorized occupation he is like a trespasser. A suit for ejectment of a trespasser to get back possession from a trespasser could always be filed.Such a Suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy also. However, the Apex Court in the aforementioned case has not said that for ejecting an unauthorized occupant/trespasser only the suit is a remedy. It has not any where put any restriction on the appropriate authority, to seek ejectment of the unauthorized occupant/trespasser by initiating the proceedings under Section 12 of the Act in the light of Sections 11 and 13 of the Act. 13. I am fortified in my view by the following decisions which I wish to briefly refer to as follows : 1. Ajay Pal Singh and others v. District Judge, Meerut and others, 2008 (2) ARC 264 . “22. 13. I am fortified in my view by the following decisions which I wish to briefly refer to as follows : 1. Ajay Pal Singh and others v. District Judge, Meerut and others, 2008 (2) ARC 264 . “22. From the provisions of the Act and Rules framed thereunder, it is apparently clear that the legislature is aware of the fact that an unauthorized occupant is necessarily inducted into the premises contrary to the provisions of the Act by the landlord himself and despite such facts being in the knowledge of the legislature, it has nor placed any restriction on the right of the right of the landlord so far as release of such premises. which are deemed to be vacated under Section 12(4) of 1972 Act is concerned, either under the 1972 Act or Rules framed thereunder”. “23. In such circumstances, the intention of the legislature is cleared that the right of the landlord to make an application for release in respect of deemed vacancy covered by Section 12 (4) be not hampered or impaired part in any manner only because of his being inducted an unauthorized occupant. No restriction on his right to make an application under Section 16 (1)(b) has been provided for and therefore no restriction is required to be provided by the Court in such right of the landlord.” 2. G. Industrial Syndicated Allahabad v. Rent Control and Eviction Officer, ARC 1982 (585), “13. From the above, it would appear that in case of an illegal letting or subletting, the view taken was that the contract may be binding on the parties to it, but not on the authorities, which would mean that the possession of a person who has been illegally let in would be unauthorised. Sections 11 and 13 of the present Act make that position very clear. No one now can either let out any premises without an allotment order nor can anyone occupy the same. If any one occupies the premises without an allotment order, he would not only be an unauthorized occupant but also liable to prosecution under Section 31 of the said, Act. His possession being unauthorised cannot be recognised in the eye of law and if it cannot be recognised in the eye of law, there would be a vacancy. That would entitle the Rent Control and Eviction Officer under Section 16 to pass an allotment order.” “15. His possession being unauthorised cannot be recognised in the eye of law and if it cannot be recognised in the eye of law, there would be a vacancy. That would entitle the Rent Control and Eviction Officer under Section 16 to pass an allotment order.” “15. Counsel for the petitioner, however, urged that the use of the expression “where a landlord or a tenant ceases to occupy a building or part thereof” in indicative of the fact that this Section will apply only to cases contemplated by Section 12 inasmuch as the words “cease to occupy” have been used in Sub-section (4) of Section 12. To us, it appears that Section 13 serves the dual purpose. It may apply to a case covered by Section 12 but it has to be read alongwith Section 11 as well. Section 13 is common to both the provisions. That being so, the applicability of Section 13 cannot be restricted to cases covered by Section 12" “19. Assuming that Section 13 of the Act applies only to cases contemplated by Section 12, alternatively we find that, as possession of Nizam Shervani was unauthorised and illegal, there was a vacancy even at the time when the house was in his occupation and after it was vacated by him. Section 11 prohibits a person from letting any building except in pursuance of an allotment order issued under Section 16. Since there is a prohibition imposed on the right of any person, which will include a landlord and tenant both, the person occupying the premises would be in an unauthorised possession. Such a person could not be treated to be a tenant. The authorised possession of a person gives a right or authority to occupy it, whereas unauthorised would mean that the person occupying is not possessed of rightful or legal power and, as such, no legal competency which can have any recognition in the eye of law, as a result of which the premises would be deemed to be unoccupied or unfilled, or empty. It that is so, the Rent Control and Eviction Officer under Section 16 would be entitled to pass an order of allotment. The vancancy talked of in Section 16 takes within its purview also possession of a person which is not recognised in law. It that is so, the Rent Control and Eviction Officer under Section 16 would be entitled to pass an order of allotment. The vancancy talked of in Section 16 takes within its purview also possession of a person which is not recognised in law. If a person without any authority occupies a premises, his possession would be of no value and the premises would be available to the District Magistrate for passing an allotment order under Section 16.” “20. In Murli Dhar Agrawal v. State of U.P. (supra), the Supreme Court found that since there was no prohibition in U. P., Act No. III of 1947 for letting or occupying, the contract arrived at between the two would be binding. The lacuna has not been removed. In Act XIII of 1972, there is a prohibition on the right of any person to let out which will impose a corresponding obligation not to occupy the same. In the absence of a provision like Section 11 of the present Act, the Supreme Court held that the contract of letting in that case was binding between the landlord and the tenant. However, what is material to consider is that even in that case the Supreme Court found that such a contract was not binding on the District Magistrate and he could treat the building as vacant and evict therefrom the tenant. Section 11 has made the position crystal clear. The District Magistrate can ignore the contract arrived at between a landlord and the tenant and pass an appropriate order for allotment under Section 16. What he may be required to do is to afford an opportunity of hearing before evicting the tenant.” 3. Jamil Ahmad v. Additional District Judge, 1995 (2) ARC 309. “9. The findings given by Prescribed Authority (Munsif), Dehradun on 13.4.1990 vide Annexure C.A.-13 is a judicial pronouncement after considering all aspect of the case and the present petitioner being a party to it is bound by it. In view of this judgment Annexure C.A.-13 this Court has no hesitation in coming to the conclusion that petitioner Jameel Ahmad son of Safique Ahmad is a rank trespasser. Section 13 of the Act lays down that no person shall occupy a building otherwise than under an order of allotment or release under Section 16 and if he does so he shall be deemed to be an unauthorized occupant of such building. Section 13 of the Act lays down that no person shall occupy a building otherwise than under an order of allotment or release under Section 16 and if he does so he shall be deemed to be an unauthorized occupant of such building. The provisions of Section 13 are in addition to Section 31 which prescribes a penalty for unauthorized occupation of a house. The contention on behalf of the petitioner that even if he is a trespasser he cannot be evicted under the provisions of Act No. 13 of 1972 and a regular suit should have been filed for his ejectment, is not tenable. It is the petitioner himself who in collusion with respondent No. 4 Pradeep kumar brought the matter within the purview of Act No. 13 of 1972. The petitioner persuaded respondent No. 4 to file an application under the Act and he had succeeded in getting the house allotted in the name respondent No. 4. In revision the matter was remanded by the learned District Judge and it was thin that it came to be released in favour of the landlord. It has also been seen above that petitioner himself filed an application under Section 27 of the Act. It is not, therefore, open to him to argue that the case is not governed by Act No. 13 of the 1972.” “10. A reference in this connection may be made to the case of M/s. R.C. Bajpai and Company v. VIIth Additional District Judge, Kanpur Nagar, 1994 (1) ARC 532. In the avobe case an earlier authority of this Court has been relied upon which is 1982(1) ARC 585. A Division Bench has held in the case of Geep Industrial Syndicate Ltd., Allahabad v. R.C. and E.O., Allahabad, as under : “Section 11 of the Act imposes a prohibition restriction against letting without an allotment order. Section 12 contemplates certain contingencies in which a landlord or tenant of a building would be deemed to have ceased to occupy it. Section 13 provides for restriction on occupation of building without allotment order. A conjoint reading of Section 11 imposes prohibition on letting without allotment order. Section 13 places restriction on occupation without an allotment or release. These two Sections, it would appear that neither could a landlord let out a premises without an allotment order nor can anyone occupy it. Section 13 provides for restriction on occupation of building without allotment order. A conjoint reading of Section 11 imposes prohibition on letting without allotment order. Section 13 places restriction on occupation without an allotment or release. These two Sections, it would appear that neither could a landlord let out a premises without an allotment order nor can anyone occupy it. These two provisions were enacted to undo the effect of Full Bench decision of this Court in Udho Das v. Prem Prakash. The learned Judge further observed as below ; “ From the above admission it would appear that in case of an illegal letting or sub- letting, the view taken was that the contract may be binding on the parties to it, but not on the authorities which would mean that the possession of a person who has been illegally let in would be unauthorized. Sections 11 and 13 of the Present Act make that position very clear. No one can either let out any premises without an allotment order no can anyone occupy the same. It anyone occupy the premises without an allotment order, he would not only be an unauthorized occupant but also liable to prosecution under 31 of the said Act. His possession being unauthorized cannot be recognized in the eye of law and of it cannot be recognized in the eye of law, there would be a vacancy.” 4. Manoj Krishna Shukla v. Mahaveer, 2007 (2) ARC 209 : “13. The revisional Court has also recorded detailed findings regarding service of notice on the petitoner and his father, Sri Lok Nath Shukla. The Rent Control Inspector’s report was signed by Sri Manoj Krishna Shukla, petitioner and verified by his Counsel, Sri Mukul Asthana. The procedure prescribed in the relevant Rules including Rule 8, was followed by the concerned Rent Control Inspector and other rent control authorities. As far as opportunity of hearing is concerned, the revisional Court recorded detailed findings that written objections were filed by the petitioner opposing the release application no 15.5.2000 and the case was listed on 16.5.2000. Thereafter the case was listed on 20.5.2000. It was open for Manoj Krishan Shukla, petitoner in this writ petition to put forth his submission on or before 20.5.2000. He was also represented through a legal practitioner. The revisional Court had, thus, found that adequate opportunity of hearing was afforded to the petitioner.” “14. Thereafter the case was listed on 20.5.2000. It was open for Manoj Krishan Shukla, petitoner in this writ petition to put forth his submission on or before 20.5.2000. He was also represented through a legal practitioner. The revisional Court had, thus, found that adequate opportunity of hearing was afforded to the petitioner.” “14. The revisional Court while relying on the judgments in Suraj Bhan v. Additional District Judge, Agra, 1997 (2) ARC 592 ; Raj Kumar Kanodiya v. IIIrd Additional City Magistrate, 1997 (2) ARC 558; Narayani Devi v. Mahendra Kumar Tripathi, 1998 (1) ARC 153 (SC); Hardev Upadhyay v. Dr. Laeeq Ahmad, 1979 ARC 290, has held that the petitioner, Manoj Krishna Shukla, revisionist was illegally occupying the premises without having any valid allotment order of the premises and, therefore, he had no right to contest the release application or file the revision. There was nothing on record to prove that the petitioner, Manoj Krishna Shukla’s father, Sri Lok Nath Shukla was paying rent to the previous landlord, Ram Autar Shukla. No documents have been filed before the Rent Control Officer or the revisional Court and even in this Court to prove that the tenancy existed between Ram Autar Shukla and Lok Nath Shukla. The petitoner has failed to demonstrate before this Court also that he was a lawful occupant, having an allotment order in his favour of this father, Sri Lok Nath Shukla was ever inducted as tenant.” “29. Even otherwise, it is well settled that an illegal and unauthorized occupant without having any right or title and valid allotment order cannot participate in the release proceedings before the trial Court. However, in the present case, the petitioner was afforded opportunity to remain associated with the trial. He has also taken assistance of a legal practitioner, Sr. Mukul Asthana, who had filed his Vakalatnama and the objections. The petitoner has failed to prove before the trial Court, revisonal Court and this Court also that he was a lawful, legal tenant of the house in dispute. It is amply clear that the petitioner has failed to establish a case for inference in the judgment and order passed by the lower Court, which has recorded concurrent findings of facts. He has also failed to persuade the Court to take a different view in the matter other than what has been decided by the Courts below” 5. It is amply clear that the petitioner has failed to establish a case for inference in the judgment and order passed by the lower Court, which has recorded concurrent findings of facts. He has also failed to persuade the Court to take a different view in the matter other than what has been decided by the Courts below” 5. Nutan Kumar and others v. IInd Additional District Judge and others, 2002 (2) ARC 645 : ............ This Court held by the majority of the Judges that so long as the Act and the Rules continued in force the control of letting vested in the appropriate authority and not in the parties. It was held that agreement of the kind embodied in the compromise petition could not curtail the powers of the appropriate authority. It was held that irrespective of the agreement between the parties the appropriate authority was entitled to exercise the powers of allotment vested in him. It must be mentioned that Justice Bhagwati, as he then was, in his minority and partly dissenting Judgment held that unless the consent decree was held to be invalid it would be binding on the tenant and even though the powers of the appropriate authority may not be curtailed, the tenant would be bound by the terms of the agreement between him and the landlord. This authority therefore also lays down nothing contrary to Nanakram’s case. This authority merely deals with the right of the appropriate authority to exercise the powers given to him under the Act. 14. The premises in the possession of an unauthorized occupant would be deemed to be vacant for the purposes of Rent Control Act, even if an unauthorized occupant is inducted into the premises contrary to the provisions of the Act by the landlord himself, the legislature has not placed any restriction on the rent control authorities to initiate proceedings under Section 12 of the Act. So far as the release of such premises which are deemed to be vacant under Section 12 (4) of the Act is concerned, the application of release has to be considered on merit in accordance with law by the District Magistrate. The unauthorized occupant has no right to interfere in the aforesaid proceeding of release. 15. So far as the release of such premises which are deemed to be vacant under Section 12 (4) of the Act is concerned, the application of release has to be considered on merit in accordance with law by the District Magistrate. The unauthorized occupant has no right to interfere in the aforesaid proceeding of release. 15. There is one more aspect in this regard which cannot be ignored if the person let out his house ignoring the provisions prohibiting the letting without allotment order or has occupied the premises forcefully without any allotment order would be an unauthorized occupant but also liable to be prosecuted under Section 31 of the Act and his possession being unauthorized cannot be recognized in the eyes of law. There would be a vacancy and that would entitle the Rent Control Eviction Officer under Section 16 to pass an allotment/release order. 16. The aforementioned authority and the provisions contained under Sections 11, 12, 13 and 31 of the UP Act No. 13 of 1972 clearly go to show that the petitioner can well be evicted under the provisions of UP Act No. 13 of 1972, as such, the petitioner was rightly evicted. 17. In support of his contention learned counsel for the petitioner referred to the decisions of Apex Court in the cases of Achal Reddy v. Ramakrishnareddiar, 1990 SCC 4 706 and T. Anjanapp v. Somalingappa, 2006 AIR Kar R-6 13. I am afraid to say that these authorities are not at all applicable in the matter. In the present case, it has come on record that the petitioner was occupying the premises since 1996 without any allotment order and the vacancy proceedings were initiated in the year 2001, as such, it cannot be said that the proceedings which was initiated in the year 2001 was without jurisdiction or time barred. 18. No other point has been pressed by learned counsel for the petitioner. 19. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference by this Court. 20. In the result, the writ petition fails and is dismissed . —————