MOHD. INAM versus SANJAY KUMAR SINGHAL & ORS.

[2020] 7 S.C.R.

MOHD. INAM

SANJAY KUMAR SINGHAL & ORS.

(Civil Appeal No. 2697 of 2020)

BJUNE 26, 2020

[NAVIN SINHA AND B.R. GAVAI, JJ.]

Uttar Pradesh Urban Buildings (Regulation of Letting andEviction) Act, 1972:

ss. 12(1)(b) and 16(1)(b) – Application by land-lord seekingCdeclaration of vacancy u/s. 16(1)(b) – Alleging that the tenant hadsub-let the tenanted premises – In the inspection report of thepremises it was stated that the tenant was residing in the premisesalongwith his sons, brother’s son and their families – Rent Controland Eviction Officer declared the premises vacant – In writ petitionDchallenging the order declaring the premises vacant, High Courtgranted liberty to the tenant to challenge the same after the finalorder would be passed u/s. 16 – Final order was passed in favourof land-lord – Revision filed against the final order as well as theorder declaring vacancy – District Judge allowed the Revision,setting aside both the orders – Writ petition against the order ofEDistrict Judge was allowed holding inter alia that vacancy could nothave been challenged alongwith final order – Appeal to SupremeCourt – Held: In view of judgment in *Achal Misra case, it wasopen to the tenant to challenge the vacancy order along with finalorder in Revision u/s. 18 – Since the tenant was residing along withFhis sons, brother’s son and their families i.e. his family members,s.12(1)(b) would not get attracted – Thus the Authority’s (RentControl and Eviction Officer) exercise of its jurisdiction was eitherillegal or with material irregularity – Therefore, the District Judgewas justified in exercise of its Revisional power in interfering withthe order of the Authority – The exercise of jurisdiction u/Art. 227Gby High Court was unwarranted and unjustified – Constitution ofIndia – Art. 227.

Revision:

Revisional power – Scope of – Held: While exercisingRevisional power, what is required to be seen is whether the orderH

under challenge is in violation of any statutory provision or bindingprecedent or suffers from misreading of the evidence or omission toconsider relevant clinching evidence or where the inference drawnfrom the facts proved is such that no person could arrive.

Constitution of India:

Art. 227 – Jurisdiction under – Nature and Scope of – Held:Though the powers u/Art. 227 are wide, they must be exercisedsparingly and only to keep subordinate Courts and Tribunals withinthe bounds of their authority and not to correct mere errors – In theguise of exercising jurisdiction u/Art. 227, the High Court cannotconvert itself into court of appeal.

Allowing the appeal, the Court

HELD: 1.1 The High Court has patently erred in holding,that the revision entertained by the District Judge against thevacancy order dated 4.6.2003 along with the final order of releasedated 31.5.2007 was not tenable. The High Court has totally erredin observing, that the order of the High Court dated 23.8.2006dismissing the writ petition had attained finality since it was notchallenged before this Court. The High Court ought to have takeninto consideration, that though the vacancy order was challengedin writ petition, the High Court vide order dated 23.8.2006,while dismissing the writ petition had reserved the right of thepetitioners (appellant and proforma respondent No.3 herein)before it to challenge the vacancy order along with the final orderpassed under Section 16. The observation that the High Court inits earlier order dated 23.8.2006, could not have granted libertyto challenge the vacancy order along with the final order is alsocontrary to the settled principles of judicial propriety. [Para 16][79-C-E]1.2 In the present case, the appellant and deceased originaltenant had rightly filed writ petition challenging the order ofvacancy dated 4.6.2003. Though the appellant and deceasedoriginal tenant could have waited till passing of the final orderu/s. 16 of Uttar Pradesh Urban Buildings (Regulation of Letting,Rent and Eviction) Act, 1972, they had in fact challenged thevacancy order before the High Court in writ petition. The HighCourt vide order dated 23.8.2006 had specifically granted them

Aliberty to challenge the vacancy order along with the final orderin view of the law laid down by this Court in the case of *AchalMisra wherein it is specifically held, that even if party does notchallenge the vacancy order by way of writ petition, it is still opento it to challenge the same order along with the final order passedunder Section 16 in the revision under Section 18. The High CourtBin the impugned judgment totally misinterpreting the order dated23.8.2006, on an erroneous premise, held that the vacancy ordercould not have been challenged along with the final order. Thefinding is totally contrary to the law laid down in *Achal Misracase which is binding precedent. [Paras 11, 13, 14 and 33]C[77-G; 78-D-G; 88-B-C]*Achal Misra v. Rama Shanker Singh and others(2005) 5 SCC 531: [2005] 3 SCR 439 – relied on.

Tirlok Singh and Co. v. District Magistrate, Lucknow(1976) 3 SCC 726 : [1976] 3 SCR 942; Ganpat Roy v.DADM (1985) 2 SCC 307 : [1985] 3 SCR 384; NarayaniDevi v. Mahendra Kr. Tripathi and others (1999) 9 SCC61 – referred to.

2. In examining the legality and the propriety of the orderunder challenge in revision, what is required to be seen by theEHigh Court, is whether it is in violation of any statutory provisionor binding precedent or suffers from misreading of the evidenceor omission to consider relevant clinching evidence or wherethe inference drawn from the facts proved is such that noreasonable person could arrive at or the like. If such finding isFallowed to stand, it would be gross miscarriage of justice and isopen to correction because it is not to be treated as findingaccording to law. If the above principles are applied to the factsof the present case, it could be seen, that the District Judge wasfully justified in interfering with the order passed by the RentController and Eviction Officer. [Paras 25 & 26][84-A-D]G

Hindustan Petroleum Corporation Limited v. DilbaharSingh (2014) 9 SCC 78 : [2014] 14 SCR 1379 -followed.

Sarla Ahuja v. United India Insurance Company Ltd.(1998) 8 SCC 119 : [1998] 2 Suppl. SCR 390; RamNarain Arora v. Asha Rani and others (1999) 1 SCC141 : [1998] 1 Suppl. SCR 188; HarshavardhanChokkani v. Bhupendra N. Patel and others (2002) 3SCC 626 : [2002] 2 SCR 133 – relied on

3.1 The District Judge had considered the words “allowedto be occupied” in Section 12 of the U.P. Act, 1972 as interpretedby this Court in **Harish Tandon case wherein the Court hadclearly held that the said words would be attracted if thepossession of such building had been given to person, whowas not family member of the tenant i.e. if any person other thanthe family member was permitted to occupy such premises in hisown right. In such an event, clause (b) of sub-section (1) of Section12, would be attracted. This Court had further held, that clause(b) of sub-section (1) of Section 12 would not be attracted whenany person, who is member of the family resides in such buildingeither along with the landlord or the original tenant. [Para 28][86-A-C]3.2 perusal of the inspection report clearly established,that the original tenant was residing in the tenanted premisesalong with his son, brother’s son and their families. As such, theinspection report clearly established, that no person who wasnot member of the tenant’s family was allowed to occupy thepremises in his own right. As such, the finding of the RentController and Eviction Officer that the landlord had proved thecase under clause (b) of sub-section (1) of Section 12 of the U.P.Act, 1972 was totally contrary to the law as interpreted by thisCourt in the case of **Harish Tandon. Not only that, the findingas recorded by the said authority was totally on misreading orignorance of the evidence on the record. It could thus be seen,that the case would squarely fall in the category of exercising thejurisdiction either illegally or with material irregularity. In thatview of the matter, the District Judge was wholly justified ininterfering with the order impugned before him and reversingthe same. [Para 29][86-D-F]

**Harish Tandon v. Addl. District Magistrate,Allahabad, U.P. and others (1995) 1 SCC 537 : [1995]1 SCR 56 – relied on.

A4. The High Court in exercising the jurisdiction underArticle 227 of the Constitution of India was totally erroneous.The District Judge while exercising his power under Section 18of the U.P. Act, 1972 and after finding that the order passed bythe Rent Controller and Eviction Officer was totally contrary toBthe law laid down by this Court in **Harish Tandon, whileinterpreting clause (b) of sub-section (1) of Section 12 of the U.P.Act, 1972 and also that the order passed was totally on perversereading of the evidence, had interfered with the said order andreversed the same. It is well settled principle of law, that in theguise of exercising jurisdiction under Article 227 of theCConstitution of India, the High Court cannot convert itself into acourt of appeal. It is equally well settled, that the supervisoryjurisdiction extends to keeping the subordinate tribunals withinthe limits of their authority and seeing that they obey the law.Though the powers under Article 227 are wide, they must beDexercised sparingly and only to keep subordinate courts andTribunals within the bounds of their authority and not to correctmere errors. [Paras 32-33][87-F, B-C; 88-A-B]

Satyanarayan Laxminarayan Hegde & Ors. v.Millikarjun Bhavanappa Tirumale [1960] 1 SCR 890;EBathutmal Raichand Oswal v. Laxmibai R. Tarta & Anr.(1975) 1 SCC 858; M/s India Pipe Fitting Co. v.Fakruddin M. A. Baker & Anr. (1977) 4 SCC 587 :[1978] 1 SCR 797; Ganpat Ladha v. Sashikant VishnuShinde (1978) 2 SCC 573 : [1978] 3 SCR 198;Mrs. Labhkuwar Bhagwani Shaha & Ors. v. JanardhanFMahadeo Kalan & Anr.(1982) 3 SCC 514;Chandavarkar Sita Ratna Rao v. Ashalata S. Guram(1986) 4 SCC 447 : [1986] 3 SCR 866; Venkatlal G.Pittie and another v. Bright Bros (Pvt.) Ltd. (1987) 3SCC 558 : [1987] 3 SCR 593; State of Maharashtra v.GMilind & Ors. (2001) 1 SCC 4 : [2000] 5 Suppl. SCR65; State Through Special Cell, New Delhi v. NavjotSandhu Alias Afshan Guru and others (2003) 6 SCC641 : [2003] 1 Suppl. SCR 130; Ranjeet Singh v. RaviPrakash (2004) 3 SCC 682 : [2004] 3 SCR 250;Shamshad Ahmad & Ors. v. Tilak Raj Bajaj (Deceased)HThrough LRs. and others (2008) 9 SCC 1 : [2008] 13

MOHD. INAM v. SANJAY KUMAR SINGHAL & ORS.

SCR 353; Celina Coelho Pereira (Ms.) and others v.Ulhas Mahabaleshwar Kholkar and others (2010) 1SCC 217 : [2009] 15 SCR 558 – relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2697of 2020.

From the Judgment and Order dated 26.10.2017 of the High Courtof Uttarakhand at Nainital in Writ Petition No. 1074 of 2008 (M/S).

AAshok Kumar Sharma, Sr. Adv., Kshitij Mudgal, Ekansh Bansal,Parmanand Gaur, Advs. for the Appellant.

Arvind Kumar Gupta, Anurag Mangla, Rishi Bhardwaj, Advs. forthe Respondents.

The Judgment of the Court was delivered byB

B. R. GAVAI, J.

1. Leave granted.

2. This appeal challenges the judgment and order dated 26.10.2017passed by the learned single judge of the High Court of Uttarakhand atCNainital in Writ Petition No.1074 of 2008 (M/S) thereby, allowing thewrit petition filed by the respondent Nos. 1 and 2 – landlords herein.

3. The facts, in brief, necessary for adjudication of the presentappeal are thus:

Rashid Ahmed, the father of the present appellant, was the originalDtenant of House No.61/8, Ground Floor, Green Pasture View, LandhourBazar, Mussoorie (hereinafter referred to as “the suit premises” or “thepremises”) since 1965. The respondents had purchased the suit premisesfrom the original landlord Sudesh Kumar Singhal in the year 1998 and,as such, became the tenant - Rashid Ahmed’s landlord from 1998. TheErespondents – landlord moved an application before the Rent Controllerand Eviction Officer, Mussoorie on 10.6.1999, contending therein, thatRashid Ahmed had sub-let the property to some other persons who werenot the family members of the tenant. As such, they prayed for declarationof vacancy under the provisions of Section 16(1)(b) of U.P. UrbanBuildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafterFreferred to as “U.P. Act, 1972” or “the Act”).

On the application of the landlord, Rent Control Inspector wasappointed to inspect the suit premises. The Rent Control Inspector visitedthe suit premises and submitted his report on 16.08.1999. In the report, itwas stated, that Rashid Ahmed, who was the tenant, was not present inGthe premises at the time of the inspection and he was informed by theoccupants that he had gone to his village Bhatpura in Saharanpur District.The report further stated, that Rashid and Akbar were sons of Hasunuddinand, as such, real brothers. The report stated that, there were severalpersons residing in the premises and they comprised of four separateHfamilies, namely, (1) Rashid Ahmed; (2) Inam s/o Rashid Ahmed along

with his six children; (3) Shabbir Ahmed, wife Shafikan and daughter;and (4) Ayyub and his children Naseem and Nashima respectively.

The original tenant - Rashid Ahmed filed objections to the inspectionreport stating therein, that he and his brother and their families are livingin the premises as tenant. He further stated, that tenancy was in hisname and there was no other person who was outside his family residingin the said premises. He, therefore, resisted declaring the suit premisesas vacant.

During the pendency of the proceedings, the house owner informedthe competent authority that, on 19.1.2000 Rashid Ahmed died in hisvillage Bhatpura leaving behind his son Mohd. Inam, the present appellant,as his legal heir. As such, the name of Rashid Ahmed came to besubstituted with that of the present appellant. The present appellant filedhis application stating therein, that he along with other family membersof late Rashid Ahmed was residing in the said premises.

The Rent Control and Eviction Officer came to the conclusionthat the persons, who were presently residing in the premises had notproduced any evidence to prove, that they were living as tenants since1965 along with late Rashid Ahmed. As such, he came to the conclusion,that the tenants had allowed persons to reside in the premises, who arenot members of the family and, as such, declared the suit premises asvacant vide order dated 4.6.2003.

Being aggrieved thereby, the present appellant along with his cousinShabbir Ahmed filed Writ Petition before the High Court of Uttaranchalat Nainital being Writ Petition No. 7 (MS) of 2003. The High Court videorder dated 23.8.2006 by referring to the judgment of this Court in thecase of Achal Misra vs. Rama Shanker Singh and others[1] grantedliberty to the petitioners therein to challenge the order dated 4.6.2003after the final order i.e. order of release/allotment was passed underSection 16 of the U.P. Act, 1972.

The Rent Controller and Eviction Officer passed final orderunder Section 16 of the U.P. Act, 1972 on 31.5.2007 thereby, declaringthe suit premises ‘vacant’ in favour of the respondents – landlord.

Being aggrieved thereby, the appellant and said Shabbir Ahmedfiled revision being R.C.R. No.122 of 2007 before the District Judge,

1 (2005) 5 SCC 531

ADehradun as provided under Section 18 of the U.P. Act, 1972. The learnedDistrict Judge, Dehradun, by well-reasoned order dated 5.6.2008,allowed the revision thereby, setting aside the order of vacancy dated4.6.2003 and the final order dated 31.5.2007.

Being aggrieved thereby, the respondents No.1 and 2 – landlordBfiled writ petition before the High Court of Uttarakhand at Nainitalbeing Writ Petition No.1074 of 2008 (M/S). As stated earlier, the saidwrit petition is allowed by the impugned order dated 26.10.2017. Beingaggrieved, the present appeal by special leave.

4. We have heard Shri Ashok Kumar Sharma, learned SeniorCCounsel appearing on behalf of the appellant and Shri Arvind KumarGupta, learned counsel appearing on behalf of the respondents – landlord.

5. The main ground on which the writ petition has been allowedby the High Court is that, the learned District Judge had committedillegality in entertaining the joint revision filed against the vacancy orderDas well as the final order. The High Court in the impugned order hasobserved, that the judgment and order dated 23.8.2006, passed by thesaid High Court dismissing the writ petition had not been challengedbefore this Court by the respondents No. 1 and 2 therein (appellant andproforma respondent No.3 herein). The High Court further goes toEobserve, that the respondents therein (appellant and proforma respondentNo.3 herein) had elected not to assail the vacancy order as well as theorder dated 23.8.2006, passed by the High Court dismissing the said writpetition. It goes to further observe, that after dismissal of the writ petitionthere was no occasion for the High Court to grant liberty to therespondents therein, to avail remedy of revision, challenging the order ofFvacancy dated 4.6.2003. The learned Judge has gone to further observe,that the revision against the order dated 4.6.2003 was not maintainableand that the District Judge had committed patent illegality in entertainingthe revision.

6. We find, that the impugned judgment delivered by the HighGCourt is not only on misreading of the law but also misreading of thefacts. It will be relevant to refer to the judgment of this Court in the caseof Achal Misra (supra). It will also be relevant to refer to the backgroundin which the said judgment by the learned three Judges was rendered.

7. In Tirlok Singh and Co. vs. District Magistrate, Lucknow[2],two learned Judges of this Court had held, that under the scheme of theAct, an order notifying vacancy by itself does no injury and causes noprejudice to the interests of any party. It was held, that notification ofthe vacancy was only step in aid of an order of allotment or releaseand only when such orders are passed, the landlord or the tenant canhave grievance. After considering the provisions of Section 16 andSection 18 of the U.P. Act, 1972, as they existed at the time of deliveryof the judgment, it was held in Tirlok Singh (supra) that, writ petitionfiled against an order declaring vacancy only, was premature, as theorder did not affect the rights of the person who challenges that order.

8. The decision in Tirlok Singh (supra) came up for considerationbefore Bench of three learned Judges in the case of Ganpat Roy vs.ADM[3]. In Ganpat Roy (supra), the Bench of three learned Judgesdisagreed with the proposition laid down in Tirlok Singh (supra), thatthe rights of the landlord or the tenant are not affected merely by thenotification of vacancy. No doubt, in the meantime, U.P. Act,1972 hadundergone an amendment and an appeal against the final order ofallotment had been replaced by revision under more restrictedconditions. In Ganpat Roy (supra), it was observed, that the observationsin Tirlok Singh (supra), holding,that it was unnecessary for the DistrictMagistrate to hear the parties before notifying the vacancy, did not appearto be correct. It was also observed, that it also did not appear to becorrect to hold, that an order notifying the vacancy did no injury andcaused no prejudice to the interests of any party because an ordernotifying the vacancy could be objected to. It was held, that thecorrectness of the decision in Tirlok Singh (supra) was open to doubt.Their Lordships in Ganpat Roy (supra) therefore held, that the schemeof the Act would show that tenant of premises, in whose case it wasfound that there was deemed vacancy, had no efficacious or adequateremedy under the Act to challenge that finding. It was, therefore, held,that petition under Article 226 or 227 of the Constitution filed by sucha tenant in order to challenge that finding could not, therefore, be said tobe premature.

9. In Achal Misra (supra), the High Court had allowed the writpetitions filed by the allottees on the ground, that the landlord not having

2 (1976) 3 SCC 726

3 (1985) 2 SCC 307

Achallenged the original order notifying the vacancy then and there, wasprecluded from challenging the order notifying the vacancy in revisionagainst the final order or in further challenges to it in the High Court.When the judgment of the High Court came up for consideration beforethe two learned Judges of this Court, it was noticed, that it could not besaid that the question of vacancy, if not challenged by separate writBpetition on its notification, could not be questioned along with the finalorder, in the revision filed under Section 18 of the Act. It was observed,that the question of vacancy pertained to jurisdictional fact and can bechallenged in the revision filed against the allotment order passed by theDistrict Magistrate. It was further observed, that in case it was found,Cthat there was no vacancy, the order of allotment had to be set aside.As such, the learned two Judges referred the matter to larger Bench.The learned three Judges in the judgment in Achal Misra (supra)observed thus:“11. On the scheme of the Act, it is clear that the preliminaryDstep is to declare vacancy. At this stage, an enquiry has to bemade including an enquiry involving at least two respectableneighbours. It is thereafter that the vacancy has to be notified andobjections invited. This is followed by either dropping of theproceedings on the objections being upheld that there was novacancy, or by allotment to tenant on finding the vacancy, or inEordering release of the building, in case landlord was foundentitled to have such release under the Act. Therefore, thenotifying of vacancy is only step in the process of making anallotment of the building to tenant. The Act contemplates thatno building should be let out by landlord except through theFprocess of allotment by the Rent Control Authority. Since the ordernotifying vacancy is only step in passing the final order in aproceeding under the Act regarding allotment, it is clear that thesame could be challenged while challenging the final order, unlessthere is anything in the Act precluding such challenge orconferring finality to the order notifying vacancy. It was heldGlong ago by the Privy Council in Moheshur Sing v. BengalGovt. [(1859) 7 Moo IA 283] (Moo IA at p. 302)

“We are not aware of any law or regulation prevailing in Indiawhich renders it imperative upon the suitor to appeal from everyinterlocutory order by which he may conceive himself aggrieved,

under the penalty, if he does not so do, of forfeiting forever thebenefit of the consideration of the appellate court. No authority orprecedent has been cited in support of such proposition, and wecannot conceive that anything would be more detrimental to theexpeditious administration of justice than the establishment of arule which would impose upon the suitor the necessity of soappealing; whereby on the one hand he might be harassed withendless expense and delay, and on the other inflict upon hisopponent similar calamities.”

12. In Sheonoth v. Ramnath [(1865) 10 MIA 413] the PrivyCouncil reiterated that party is not bound to appeal from everyinterlocutory order which is step in the procedure that leads to afinal decree. It is open on appeal from such final decree to questionan interlocutory order.

13. This principle is recognised by Section 105(1) of the Code ofCivil Procedure and reaffirmed by Order 43 Rule 1-A of the Code.The two exceptions to this rule are found in Section 97 of theCode of Civil Procedure, 1908, which provides that preliminarydecree passed in suit could not be challenged in an appeal againstthe final decree based on that preliminary decree and Section105(2) of the Code of Civil Procedure, 1908 which precludes achallenge to an order of remand at subsequent stage while filingan appeal against the decree passed subsequent to the order ofremand. All these aspects came to be considered by this Courtin Satyadhyan Ghosal v. Deorajin Debi [(1960) 3 SCR 590 :AIR 1960 SC 941. Ed.: See also(1981) 2 SCC 103, (2004) 12SCC 754 and (2005) 3 SCC 422] wherein, after referring to thedecisions of the Privy Council, it was held that an interlocutoryorder which had not been appealed from either because no appeallay or even though an appeal lay, an appeal was not taken, can bechallenged in an appeal from final decree or order. It was furtherheld that special provision was made in Section 105(2) of theCode of Civil Procedure as regards orders of remand where theorder of remand itself was made appealable. Since Section 105(2)did not apply to the Privy Council and can have no application toappeals to the Supreme Court, the Privy Council and the SupremeCourt could examine even the correctness of an original order ofremand while considering the correctness of the decree passed

subsequent to the order of remand. The same principle wasreiterated in Amar Chand Butail v. Union of India [AIR 1964SC 1658] and in other subsequent decisions.

14. It is thus clear that an order notifying vacancy which leadsto the final order of allotment can be challenged in proceedingBtaken to challenge the final order, as being an order which is apreliminary step in the process of decision-making in passing thefinal order. Hence, in revision against the final order of allotmentwhich is provided for by the Act, the order notifying the vacancycould be challenged. The decision in Ganpat Roy case[(1985) 2SCC 307] which has disapproved the ratio of the decision in TirlokCSingh and Co.[(1976) 3 SCC 726] cannot be understood as layingdown that the failure to challenge the order notifying the vacancythen and there, would result in the loss of right to the aggrievedperson of challenging the notifying of vacancy itself, in revisionagainst the final order of allotment. It has only clarified that evenDthe order notifying the vacancy could be immediately andindependently challenged. The High Court, in our view, hasmisunderstood the effect of the decision of this Court in GanpatRoy case [(1985) 2 SCC 307] and has not kept in mind the generalprinciples of law governing such question as expounded by thePrivy Council and by this Court. It is nobody’s case that there isEanything in the Act corresponding either to Section 97 or to Section105(2) of the Code of Civil Procedure, 1908 precluding challengein respect of an order which ultimately leads to the final order.We overrule the view taken by the Allahabad High Court in thepresent case and in Kunj Lata v. Xth ADJ [(1991) 2 RCJ 658]Fthat in revision against the final order, the order notifying thevacancy could not be challenged and that the failure toindependently challenge the order notifying the vacancy wouldpreclude successful challenge to the allotment order itself. Infact, the person aggrieved by the order notifying the vacancy canbe said to have two options available. Either to challenge the orderGnotifying the vacancy then and there by way of writ petition orto make the statutory challenge after final order of allotmenthas been made and if he is aggrieved even thereafter, to approachthe High Court. It would really be case of election of remedies.”

10. It could thus be seen, that considering the scheme of the Act;Hthe principles as recognized by Section 105(1) and Order XLIII Rule 1-

of the Code of Civil Procedure, 1908 and the various judgments of thePrivy Council as well as this Court, it was held, that an interlocutoryorder which had not been appealed from, either because no appeal layor even though an appeal lay, an appeal was not taken, can be challengedin an appeal from final decree or order. It was therefore held, that anorder, notifying vacancy which leads to the final order of allotment canbe challenged in proceeding taken out to challenge the final order, asbeing an order which is preliminary step in the process of decisionmaking in passing the final order. The learned three Judges thereforeheld, that in revision against the final order of allotment which is providedfor by the Act, the order notifying the vacancy could be challenged. Itwas held, that the decision in Ganpat Roy (supra), which disapprovedthe ratio in Tirlok Singh (supra) cannot be understood as laying down,that the failure to challenge the order notifying the vacancy then andthere, would result in the loss of right to the aggrieved person ofchallenging the order notifying vacancy itself, in revision against thefinal order of allotment. It was held, Ganpat Roy (supra) had only clarifiedthat even the order notifying the vacancy could be immediately andindependently challenged. It was therefore held, that the High Court hadmisunderstood the effect of the decision of this Court in Ganpat Roy(supra) and had not kept in mind the general principles of law governingsuch question as expounded by the Privy Council and this Court. Itwas held, that there was nothing in the Act corresponding either to Section97 or to Section 105(2) of the Code of Civil Procedure, 1908 precludinga challenge in respect of an order which ultimately leads to the finalorder. It was further held, that in fact, the person aggrieved by the ordernotifying the vacancy can be said to have two options available, either tochallenge the order notifying the vacancy then and there by way of awrit petition or to make statutory challenge after final order ofallotment has been made and if he is aggrieved even thereafter, to approachthe High Court. It was further observed, that it would really be case ofelection of remedies.

11. In the present case, the appellant and deceased Shabbir Ahmed,rightly, on the basis of the judgment of this Court in the case of AchalMisra (supra), had filed writ petition being Writ Petition No.7 (MS) of2003, challenging the order of vacancy dated 4.6.2003. The learned singlejudge of the High Court vide order dated 23.8.2006 after specificallyobserving and reproducing paragraph 14 of the judgment of this Court inthe case of Achal Misra (supra) observed thus:

ABC

78SUPREME COURT REPORTS

A“In view of the aforesaid, liberty is given to the petitioner tochallenge the order dated 4[th] June, 2003 after the final order ispassed under Section 16 of the U.P. Act No.13 of 1972.”

12. In the light of this, we fail to appreciate, as to how the learnedjudge of the High Court in the impugned order, could have madeBobservations in paragraph 11 thereof. The learned Judge goes to observe,that after dismissal of the writ petition there was no occasion for thesaid High Court to grant liberty to the respondents to avail remedy ofrevision challenging the order of vacancy dated 4.6.2003. It appears,that the learned judge has missed the last line in the order of the HighCourt dated 23.8.2006, which reads thus:C

“Subject to aforesaid, writ petition is dismissed.”

13. The learned single Judge of the High Court has also failed totake into consideration that in the order dated 23.8.2006 itself, the learnedjudge while disposing of the earlier writ petition had referred to the lawDlaid down by this Court in the case of Achal Misra (supra), wherein it isspecifically held, that even if party does not challenge the vacancyorder by way of writ petition, it is still open to it to challenge the sameorder along with the final order passed under Section 16 in the revisionunder Section 18. However, the learned Judge, in the impugned judgment,has not even referred to the judgment of this Court in the case of AchalEMisra (supra), relevant part of which has been reproduced in theearlier order of the said High Court dated 23.8.2006.

14. In the present case, though the appellant and deceased ShabbirAhmed could have waited till passing of the final order under Section 16,they had in fact challenged the vacancy order before the High Court inFa writ petition. The High Court had specifically granted them liberty tochallenge the vacancy order along with the final order in view of the lawlaid down by this Court in the case of Achal Misra (supra) vide orderdated 23.8.2006. The learned single judge of the High Court, in theimpugned judgment, while holding that the revision is not tenable underGSection 18 of the Act, places reliance on the judgment of this Court inthe case of Narayani Devi vs. Mahendra Kr. Tripathi and others[4].It is to be noticed, that the judgment on which reliance is placed by thesingle judge of the High Court is an order of one paragraph rendered bytwo Judges of this Court. The learned judge has failed in appreciating

the law as laid down by this Court in Achal Misra (supra), which laysdown ratio decidendi and is binding precedent, which was very muchavailable on the record and part of which had been reproduced in theorder dated 23.8.2006 in the earlier proceedings between the same parties.

15. By relying on an order of one paragraph passed by two learnedJudges of this Court and ignoring to consider the legal position of law,which is ratio decidendi and binding precedent as laid down by threelearned Judges of this Court in Achal Misra (supra), we find, that thelearned single judge of the High Court has committed gross error.

16. We are, therefore, of the considered view, that the High Courthas patently erred in holding, that the revision entertained by the DistrictJudge against the vacancy order dated 4.6.2003 along with the finalorder of release dated 31.5.2007 was not tenable. The learned judge hastotally erred in observing, that the order of the High Court dated 23.8.2006dismissing the writ petition had attained finality since it was not challengedbefore this Court. The learned judge ought to have taken intoconsideration, that though the vacancy order was challenged in writpetition, the High Court vide order dated 23.8.2006, while dismissing thewrit petition had reserved the right of the petitioners (appellant andproforma respondent No.3 herein) before it to challenge the vacancyorder along with the final order passed under Section 16. The observationof the learned judge, that the High Court in its earlier order dated23.8.2006, could not have granted liberty to challenge the vacancy orderalong with the final order is also contrary to the settled principles ofjudicial propriety.

17. That leaves us to the merits of the matter.

18. It will be relevant to refer to Section 18 of the U.P. Act, 1972.

“18. Appeal against order of allotment or release:- (1) No appealshall lie from any order under section 16 or section 19, whethermade before or after the commencement of this section, butany person aggrieved by final order under any of the saidsections may, within fifteen days from the date of such order,prefer revision to the District Judge on any one or more ofthe following grounds, namely:-

(a) that the District Magistrate has exercised jurisdictionnot vested in him by law;

(b) that the District Magistrate has failed to exercise ajurisdiction vested in him by law;

(c) that the District Magistrate acted in the exercise of hisjurisdiction illegally or with material irregularity.

(2) The revising authority may confirm or rescind the finalorder made under sub-section (1) or may remand the case tothe District Magistrate for rehearing and pending the revision,may stay the operation of such order on such terms, if any, asit thinks fit.

Explanation—The power to rescind the final order under thissub-section shall not include the power to pass an allotmentorder or to direct the passing of an allotment order in favour ofa person different from the allottee mentioned in the orderunder revision.

(3) Where an order under section 16 or section 19 is rescinded,the District Magistrate shall, on an application being made tohim on that behalf, place the parties back in the position whichthey would have occupied but for such order or such partthereof as has been rescinded, and may for that purpose useor cause to be used such force as may be necessary”.

19. It could thus be seen, that the earlier right of an appeal whichwas provided under Section 18 had been substituted by remedy ofrevision with the limited grounds of interference. One of the groundsavailable is that, the District Magistrate had acted in exercise of hisjurisdiction illegally or with material irregularity.

F20. This Court in the case of Sarla Ahuja vs. United IndiaInsurance Company Ltd.[5 ]had an occasion to consider the scope ofproviso to Section 25-B(8) of the Delhi Rent Control Act, 1958. ThisCourt found, that though the word ‘revision’ was not employed in thesaid proviso, from the language used therein, the legislative intent wasclear that the power conferred was revisional power. This Court observedGthus:

“11. Learned Single Judge of the High Court in the present casehas reassessed and reappraised the evidence afresh to reach adifferent finding as though it was exercising appellate jurisdiction.

No doubt even while exercising revisional jurisdiction, reappraisalof evidence can be made, but that should be for the limited purposeto ascertain whether the conclusion arrived at by the fact-findingcourt is wholly unreasonable…..”

It could thus be seen, that this Court has held, that the High Courtwhile exercising the revisional powers under the Delhi Rent ControlAct, 1958 though could not reassess and reappraise the evidence, as if itwas exercising appellate jurisdiction, however, it was empowered toreappraise the evidence for the limited purpose so as to ascertain whetherthe conclusion arrived at by the fact-finding court is wholly unreasonable.

21. Again in the case of Ram Narain Arora vs. Asha Rani andothers[6], this Court had an occasion to consider the aforesaid powersunder the Delhi Rent Control Act, 1958. This Court observed thus:

“12. It is no doubt true that the scope of revision petition underSection 25-B(8) proviso of the Delhi Rent Control Act is verylimited one, but even so in examining the legality or propriety ofthe proceedings before the Rent Controller, the High Court couldexamine the facts available in order to find out whether he hadcorrectly or on firm legal basis approached the matters on recordto decide the case. Pure findings of fact may not be open to beinterfered with, but (sic if) in given case, the finding of fact isgiven on wrong premise of law, certainly it would be open to therevisional court to interfere with such matter…….”It was thus held, that though the scope of revisional powers ofthe High Court was very limited one, but even so in examining the legalityor propriety of the proceedings before the Rent Controller, the HighCourt could examine the facts available in order, to find out whether hehad correctly or on firm legal basis approached the matters on recordto decide the case. It has also been held, that pure findings of fact maynot be open to be interfered with, but in given case, if the finding offact is given on wrong premise of law, it would be open to the revisionalcourt to interfere with the same.

22. In the case of Harshavardhan Chokkani vs. BhupendraN. Patel and others[7], this Court had an occasion to consider the scopeof revisional power under Section 22 of the Andhra Pradesh Buildings

6 (1999) 1 SCC 141

7 (2002) 3 SCC 626

A(Lease, Rent and Eviction) Control Act, 1960. This Court observedthus:

“7. There can be no controversy about the position that the powerof the High Court under Section 22 of the Act is wider than thepower under Section 115 CPC. Nonetheless, the High Court isBexercising the revisional power which in its very nature is atruncated power. The width of the powers of the revisional courtcannot be equated with the powers of the appellate court. Inexamining the legality and the propriety of the order underchallenge, what is required to be seen by the High Court is whetherit is in violation of any statutory provision or binding precedentCor suffers from misreading of the evidence or omission to considerrelevant clinching evidence or where the inference drawn fromthe facts proved is such that no reasonable person could arrive ator the like. It is only in such situations that interference by theHigh Court in revision in finding of fact will be justified. MereDpossibility of different view is no ground to interfere in exerciseof revisional power. From the above discussion, it is clear thatnone of the aforementioned reasons exist in this case to justifyinterference by the High Court.”

23. This Court thus held, that the interference in revisional powersEwould be permitted only if the High Court finds that the order impugnedis in violation of any statutory provision or binding precedent or suffersfrom misreading of the evidence or omission to consider relevant clinchingevidence or where the inference drawn from the facts proved is suchthat no reasonable person could arrive at or the like.

F24. Lastly, the Constitution Bench of this court in the case ofHindustan Petroleum Corporation Limited vs. Dilbahar Singh[8] hadan occasion to consider the scope of revisional powers as contained inthe Kerala Buildings (Lease and Rent Control) Act, 1965, T.N. Buildings(Lease and Rent Control) Act, 1960 and Haryana Urban (Control ofRent and Eviction) Act, 1973. The Court observed thus:G

“43. We hold, as we must, that none of the above Rent ControlActs entitles the High Court to interfere with the findings of factrecorded by the first appellate court/first appellate authority becauseon reappreciation of the evidence, its view is different from the

H8 (2014) 9 SCC 78

court/authority below. The consideration or examination of theevidence by the High Court in revisional jurisdiction under theseActs is confined to find out that finding of facts recorded by thecourt/authority below is according to law and does not suffer fromany error of law. finding of fact recorded by court/authoritybelow, if perverse or has been arrived at without consideration ofthe material evidence or such finding is based on no evidence ormisreading of the evidence or is grossly erroneous that, if allowedto stand, it would result in gross miscarriage of justice, is open tocorrection because it is not treated as finding according to law.In that event, the High Court in exercise of its revisional jurisdictionunder the above Rent Control Acts shall be entitled to set asidethe impugned order as being not legal or proper. The High Courtis entitled to satisfy itself as to the correctness or legality orpropriety of any decision or order impugned before it as indicatedabove. However, to satisfy itself to the regularity, correctness,legality or propriety of the impugned decision or the order, theHigh Court shall not exercise its power as an appellate power toreappreciate or reassess the evidence for coming to differentfinding on facts. Revisional power is not and cannot be equatedwith the power of reconsideration of all questions of fact as acourt of first appeal. Where the High Court is required to besatisfied that the decision is according to law, it may examinewhether the order impugned before it suffers from proceduralillegality or irregularity.”

It can thus be seen, that the Constitution Bench has settled theposition, that the revisional power does not entitle the High Court tointerfere with the finding of the fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, itsview is different from the court/authority below. The consideration orexamination of the evidence is confined to find out as to whether thefinding of facts recorded by the court/authority below is according tolaw and does not suffer from any error of law. It has been held, that afinding of fact recorded by court/authority below, if perverse or hasbeen arrived at without consideration of the material evidence or suchfinding is based on no evidence or misreading of the evidence or is grosslyerroneous that, if allowed to stand, it would result in gross miscarriage ofjustice, in such case, it is open to correction because it is not treated asa finding according to law.

ABC

A25. No doubt, that the observations in the aforesaid cases dealwith the revisional powers to be exercised by the High Court under thespecial statute. This Court has observed, that in examining the legalityand the propriety of the order under challenge in revision, what is requiredto be seen by the High Court, is whether it is in violation of any statutoryprovision or binding precedent or suffers from misreading of theBevidence or omission to consider relevant clinching evidence or wherethe inference drawn from the facts proved is such that no reasonableperson could arrive at or the like. It has been held, that if such findingis allowed to stand, it would be gross miscarriage of justice and is opento correction because it is not to be treated as finding according to law.

26. The revisional powers conferred upon the District Judge underthe U.P. Act, 1972 are almost analogous with the revisional powers ofthe High Court that have been interpreted by this Court in the aforesaidjudgments. We find, that the said principles can be aptly made applicableto the revisional powers of the District Judge under the U.P. Act, 1972.DIf the said principles are applied to the facts of the present case, it couldbe seen, that the learned District Judge was fully justified in interferingwith the order passed by the Rent Controller and Eviction Officer.

27. It will be relevant to reproduce part of the judgment andorder passed by the learned District Judge while allowing the revisionEfiled by the present appellant and late Shabbir Ahmed.

“The law on the point is very clear. Hon’ble Supreme Court inHarish Tandon Vs. A.D.M. Allahabad ARC 1995(1) 220 hasdefined the scope of Section 12(1)(b) – Deemed vacancy. TheHon’ble Court has held that the words “allowed” and “occupy”Fare significant. The extract of Head Note ‘D’ (para 18) of thejudgment is reproduced below for ready reference.

“Sub-Section (1)(b) of Section 12 says that landlord or tenant ofa building shall be deemed to have ceased to occupy the buildingor part thereof if he has allowed it to be occupied by any personGwho is not member of his family.

The words ‘allowed’ and ‘occupy’ are significant. The landlordor the tenant, as the case may be, shall be deemed to have ceasedto occupy the building only if he has allowed it to be occupied byany person who is not member of his family. The words “allowedto be occupied” indicate that the possession of such building has

been given to person who is not member of the family. It shallnot be attracted when any person who is not member of thefamily resides in such building either along with landlord or theoriginal tenant. If the landlord or the tenant allows any person,who is not member of the family within the meaning of the Actto occupy the premises, with the object that such person shalloccupy such premises in his own rights, in that event, clause (b)of sub-section (1) of Section 12 shall be attracted?

Averting to the facts and circumstances of the present case,the inspection note on the file is important. The R.C.I. madesurprise inspection on 15-8-1999 and found Shabir Ahmed,Smt. Shafikan, Naseema, Shabnam and Nasim present in thepremises. It was also told to him that Rashid Ahmed has gone tohis village. It is also noted in the inspection note that in the givenpremises, Sri Rashid himself, Sri Inam, s/o Rashid along with hiswife and children, Sri Shabir Ahmed along with his wifeSmt. Shafikan, daughter and Sri Ayub, Naseema and Nasim wereresiding in the property. It is worthy to note that Sri Inam is theson of Rashid who is said to be the tenant even according tolandlord. The persons named in the inspection report are eitherthe family members of tenant Rashid or the family members ofhis brother Akbar. Admittedly except the family member of Rashidor Akbar no other person was found residing in the property inquestion. In this perspective, the factum of deemed vacancy is tobe seen. The Hon’ble Supreme Court in so many words has heldthat the words “allowed to be occupied” indicate that the possessionof such building has been given to person who is not familymember of the tenant. It shall not be attracted when any personwho is not member of family of the tenant reside in such buildingeither along with landlord or the original tenant meaning thereby ifany person other than the family member occupies such premisesin his own right, in that event, clause (b) of sub-section (1) ofSection 12 shall be attracted and not otherwise. Here in the presentcase even according to spot inspection, the family member ofRashid who was the original tenant was found residing therein.The other members even if not their family members were foundresiding along with the family members of the original tenant andnot in their own exclusive right. Therefore, the vacancy could nothave been declared in such eventuality.”

A28. It could be seen, from the judgment and order of the DistrictJudge, that the District Judge has considered the words “allowed to beoccupied” in Section 12 of the U.P. Act, 1972 as interpreted by thisCourt in the case of Harish Tandon vs. Addl. District Magistrate,Allahabad, U.P. and others[9]. This Court in Harish Tandon (supra),while construing the words “allowed to be occupied” as appearing inBSection 12 of the U.P. Act, 1972, had clearly held, that the said wordswould be attracted if the possession of such building had been given toa person, who was not family member of the tenant i.e. if any personother than the family member was permitted to occupy such premises inhis own right. In such an event, clause (b) of sub-section (1) of SectionC12, would be attracted. This Court had further held, that clause (b) ofsub-section (1) of Section 12 would not be attracted when any person,who is member of the family resides in such building either along withthe landlord or the original tenant.

29. perusal of the inspection report clearly established, that theDoriginal tenant was residing in the tenanted premises along with his son,brother’s son and their families. As such, the inspection report clearlyestablished, that no person who was not member of the tenant’s familywas allowed to occupy the premises in his own right. As such, the findingof the Rent Controller and Eviction Officer that the landlord had provedthe case under clause (b) of sub-section (1) of Section 12 of the U.P.EAct, 1972 was totally contrary to the law as interpreted by this Court inthe case of Harish Tandon (supra). Not only that, the finding as recordedby the said authority was totally on misreading or ignorance of theevidence on the record. It could thus be seen, that the case would squarelyfall in the category of exercising the jurisdiction either illegally or with

Fmaterial irregularity. In that view of the matter, the learned District Judgewas wholly justified in interfering with the order impugned before himand reversing the same.

30. Though the District Judge as well as the High Court has alsogone on the issue of Section 14, we do not propose to go into the saidGaspect of the matter, inasmuch as, we find, that the present appealdeserves to be allowed on the aforesaid grounds.

31. We find, that the learned single judge of the High Court hasalso erred in interfering with the well-reasoned order passed by the learned

H9 (1995) 1 SCC 537

District Judge while exercising the jurisdiction of the High Court underArticle 227 of the Constitution of India.

32. It is well settled principle of law, that in the guise of exercisingjurisdiction under Article 227 of the Constitution of India, the High Courtcannot convert itself into court of appeal. It is equally well settled, thatthe supervisory jurisdiction extends to keeping the subordinate tribunalswithin the limits of their authority and seeing that they obey the law. Ithas been held, that though the powers under Article 227 are wide, theymust be exercised sparingly and only to keep subordinate courts andTribunals within the bounds of their authority and not to correct mereerrors. Reliance in this respect can be placed on catena of judgmentsof this Court including the ones in Satyanarayan Laxminarayan Hegde& Ors. vs. Millikarjun Bhavanappa Tirumale[10], BathutmalRaichand Oswal vs. Laxmibai R. Tarta & Anr.[11], M/s India PipeFitting Co. vs. Fakruddin M. A. Baker & Anr.[12], Ganpat Ladha v.Sashikant Vishnu Shinde[13], Mrs. Labhkuwar Bhagwani Shaha &Ors. vs. Janardhan Mahadeo Kalan & Anr.[14], Chandavarkar SitaRatna Rao vs. Ashalata S. Guram[15], Venkatlal G. Pittie and anothervs. Bright Bros (Pvt.) Ltd.[16], State of Maharashtra vs. Milind & Ors.[17],State Through Special Cell, New Delhi vs. Navjot Sandhu AliasAfshan Guru and others[18], Ranjeet Singh vs. Ravi Prakash[19],Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) ThroughLRs. and others[20], Celina Coelho Pereira (Ms.) and others vs. UlhasMahabaleshwar Kholkar and others[21].

33. In the present case, we are of the considered view, that theapproach of the High Court in exercising the jurisdiction under Article227 of the Constitution of India was totally erroneous. The learned DistrictJudge while exercising his power under Section 18 of the U.P. Act, 1972

10 (1960) 1 SCR 89011 (1975) 1 SCC 85812 (1977) 4 SCC 58713 (1978) 2 SCC 57314 (1982) 3 SCC 51415 (1986) 4 SCC 44716 (1987) 3 SCC 55817 (2001) 1 SCC 418 (2003) 6 SCC 64119 (2004) 3 SCC 68220 (2008) 9 SCC 121 (2010) 1 SCC 217

[2020] 7 S.C.R.

Aand after finding that the order passed by the Rent Controller and EvictionOfficer was totally contrary to the law laid down by this Court in HarishTandon (supra), while interpreting clause (b) of sub-section (1) of Section12 of the U.P. Act, 1972 and also that the order passed was totally on aperverse reading of the evidence, had interfered with the said order andreversed the same. The High Court totally misinterpreting the orderBpassed by the earlier learned judge in Writ Petition No.7(MS) of 2003dated 23.8.2006, on an erroneous premise, held that the vacancy ordercould not have been challenged along with the final order. The finding istotally contrary to the law laid down by the bench of three learned judgesof this Court in Achal Misra (supra), relevant part of which wasCreproduced by the High Court in its earlier order dated 23.8.2006. Thelearned judge ignoring Achal Misra (supra), which is binding precedent,relies on an order of one paragraph of the two learned judges of thisCourt while holding that the revision was not maintainable. We, therefore,are of the considered view, that the exercise of jurisdiction by the High

Court under Article 227 in the present case was patently unwarrantedDand unjustified.

34. In the result, the appeal is allowed. The order of the HighCourt dated 26.10.2017 is quashed and set aside. There shall be noorder as to costs.

Kalpana K. Tripathy

Appeal allowed.