Mohd. Inam vs Sanjay Kumar Singhal on 26 June, 2020
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Supreme Court of India
Mohd. Inam vs Sanjay Kumar Singhal on 26 June, 2020
Author: B.R. Gavai
Bench: Sanjay Kishan Kaul, B.R. Gavai
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._2697 OF 2020
[Arising out of Special Leave Petition (Civil) No. 20133 OF 2018]
MOHD. INAM ...APPELLANT(S)
VERSUS
SANJAY KUMAR SINGHAL & ORS. .... RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
1. Leave granted.
2. This appeal challenges the judgment and order dated
26.10.2017 passed by the learned single judge of the High
Court of Uttarakhand at Nainital in Writ Petition No.1074 of
2008 (M/S) thereby, allowing the writ petition filed by the
Signature Not Verified
Digitally signed by
DEEPAK SINGH
respondent Nos. 1 and 2 – landlords herein.
Date: 2020.06.26
17:13:14 IST
Reason:
2
3. The facts, in brief, necessary for adjudication of the
present appeal are thus:
Rashid Ahmed, the father of the present appellant,
was the original tenant of House No.61/8, Ground Floor,
Green Pasture View, Landhour Bazar, Mussoorie (hereinafter
referred to as “the suit premises” or “the premises”) since
1965. The respondents had purchased the suit premises
from the original landlord Sudesh Kumar Singhal in the year
1998 and, as such, became the tenant Rashid Ahmed’s
landlord from 1998. The respondents – landlord moved an
application before the Rent Controller and Eviction Officer,
Mussoorie on 10.6.1999, contending therein, that Rashid
Ahmed had sublet the property to some other persons who
were not the family members of the tenant. As such, they
prayed for declaration of vacancy under the provisions of
Section 16(1)(b) of U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter referred to
as “U.P. Act, 1972” or “the Act”).
On the application of the landlord, a Rent Control
Inspector was appointed to inspect the suit premises. The
3
Rent Control Inspector visited the suit premises and
submitted his report on 16.08.1999. In the report, it was
stated, that Rashid Ahmed, who was the tenant, was not
present in the premises at the time of the inspection and he
was informed by the occupants that he had gone to his village
Bhatpura in Saharanpur District. The report further stated,
that Rashid and Akbar were sons of Hasunuddin and, as
such, real brothers. The report stated that, there were
several persons residing in the premises and they comprised
of four separate families, 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 inspection report stating therein, that he and his
brother and their families are living in the premises as
tenant. He further stated, that tenancy was in his name and
there was no other person who was outside his family
residing in the said premises. He, therefore, resisted
declaring the suit premises as vacant.
4
During the pendency of the proceedings, the house
owner informed the competent authority that, on 19.1.2000
Rashid Ahmed died in his village Bhatpura leaving behind his
son Mohd. Inam, the present appellant, as his legal heir. As
such, the name of Rashid Ahmed came to be substituted with
that of the present appellant. The present appellant filed his
application stating therein, that he along with other family
members of late Rashid Ahmed was residing in the said
premises.
The Rent Control and Eviction Officer came to the
conclusion that the persons, who were presently residing in
the premises had not produced any evidence to prove, that
they were living as tenants since 1965 along with late Rashid
Ahmed. As such, he came to the conclusion, that the tenants
had allowed persons to reside in the premises, who are not
members of the family and, as such, declared the suit
premises as vacant vide order dated 4.6.2003.
Being aggrieved thereby, the present appellant along
with his cousin Shabbir Ahmed filed Writ Petition before the
5
High Court of Uttaranchal at Nainital being Writ Petition No.
7 (MS) of 2003. The High Court vide order dated 23.8.2006
by referring to the judgment of this Court in the case of
Achal Misra vs. Rama Shanker Singh and others1 granted
liberty to the petitioners therein to challenge the order dated
4.6.2003 after the final order i.e. order of release/allotment
was passed under Section 16 of the U.P. Act, 1972.
The Rent Controller and Eviction Officer passed a
final order under Section 16 of the U.P. Act, 1972 on
31.5.2007 thereby, declaring the suit premises ‘vacant’ in
favour of the respondents – landlord.
Being aggrieved thereby, the appellant and said
Shabbir Ahmed filed a revision being R.C.R. No.122 of 2007
before the District Judge, Dehradun as provided under
Section 18 of the U.P. Act, 1972. The learned District Judge,
Dehradun, by a wellreasoned order dated 5.6.2008, allowed
the revision thereby, setting aside the order of vacancy dated
4.6.2003 and the final order dated 31.5.2007.
1 (2005) 5 SCC 531
6
Being aggrieved thereby, the respondents No.1 and
2 – landlord filed a writ petition before the High Court of
Uttarakhand at Nainital being Writ Petition No.1074 of 2008
(M/S). As stated earlier, the said writ petition is allowed by
the impugned order dated 26.10.2017. Being aggrieved, the
present appeal by special leave.
4. We have heard Shri Ashok Kumar Sharma, learned
Senior Counsel appearing on behalf of the appellant and Shri
Arvind Kumar Gupta, learned counsel appearing on behalf of
the respondents – landlord.
5. The main ground on which the writ petition has been
allowed by the High Court is that, the learned District Judge
had committed illegality in entertaining the joint revision filed
against the vacancy order as well as the final order. The High
Court in the impugned order has observed, that the judgment
and order dated 23.8.2006, passed by the said High Court
dismissing the writ petition had not been challenged before
this Court by the respondents No. 1 and 2 therein (appellant
and proforma respondent No.3 herein). The High Court
further goes to observe, that the respondents therein
7
(appellant and proforma respondent No.3 herein) had elected
not to assail the vacancy order as well as the order dated
23.8.2006, passed by the High Court dismissing the said writ
petition. It goes to further observe, that after dismissal of the
writ petition there was no occasion for the High Court to
grant liberty to the respondents therein, to avail remedy of
revision, challenging the order of vacancy dated 4.6.2003.
The learned Judge has gone to further observe, that the
revision against the order dated 4.6.2003 was not
maintainable and that the District Judge had committed
patent illegality in entertaining the revision.
6. We find, that the impugned judgment delivered by
the High Court is not only on misreading of the law but also
misreading of the facts. It will be relevant to refer to the
judgment of this Court in the case of Achal Misra (supra). It
will also be relevant to refer to the background in which the
said judgment by the learned three Judges was rendered.
7. In Tirlok Singh and Co. vs. District Magistrate,
Lucknow2, two learned Judges of this Court had held, that
2 (1976) 3 SCC 726
8
under the scheme of the Act, an order notifying a vacancy by
itself does no injury and causes no prejudice to the interests
of any party. It was held, that a notification of the vacancy
was only a step in aid of an order of allotment or release and
only when such orders are passed, the landlord or the tenant
can have a grievance. After considering the provisions of
Section 16 and Section 18 of the U.P. Act, 1972, as they
existed at the time of delivery of the judgment, it was held in
Tirlok Singh (supra) that, a writ petition filed against an
order declaring a vacancy only, was premature, as the order
did not affect the rights of the person who challenges that
order.
8. The decision in Tirlok Singh (supra) came up for
consideration before a Bench of three learned Judges in the
case of Ganpat Roy vs. ADM3. In Ganpat Roy (supra), the
Bench of three learned Judges disagreed with the proposition
laid down in Tirlok Singh (supra), that the rights of the
landlord or the tenant are not affected merely by the
notification of a vacancy. No doubt, in the meantime, U.P.
3 (1985) 2 SCC 307
9
Act,1972 had undergone an amendment and an appeal
against the final order of allotment had been replaced by a
revision under more restricted conditions. In Ganpat Roy
(supra), it was observed, that the observations in Tirlok
Singh (supra), holding, that it was unnecessary for the
District Magistrate to hear the parties before notifying the
vacancy, did not appear to be correct. It was also observed,
that it also did not appear to be correct to hold, that an order
notifying the vacancy did no injury and caused no prejudice
to the interests of any party because an order notifying the
vacancy could be objected to. It was held, that the
correctness of the decision in Tirlok Singh (supra) was open
to doubt. Their Lordships in Ganpat Roy (supra) therefore
held, that the scheme of the Act would show that a tenant of
a premises, in whose case it was found that there was a
deemed vacancy, had no efficacious or adequate remedy
under the Act to challenge that finding. It was, therefore,
held, that a petition under Article 226 or 227 of the
10
Constitution filed by such a tenant in order to challenge that
finding could not, therefore, be said to be premature.
9. In Achal Misra (supra), the High Court had allowed
the writ petitions filed by the allottees on the ground, that the
landlord not having challenged the original order notifying the
vacancy then and there, was precluded from challenging the
order notifying the vacancy in revision against the final order
or in further challenges to it in the High Court. When the
judgment of the High Court came up for consideration before
the two learned Judges of this Court, it was noticed, that it
could not be said that the question of vacancy, if not
challenged by a separate writ petition on its notification,
could not be questioned along with the final order, in the
revision filed under Section 18 of the Act. It was observed,
that the question of vacancy pertained to a jurisdictional fact
and can be challenged in the revision filed against the
allotment order passed by the District Magistrate. It was
further observed, that in case it was found, that there was no
vacancy, the order of allotment had to be set aside. As such,
the learned two Judges referred the matter to a larger Bench.
11
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 preliminary step is to
declare a vacancy. At this stage, an
enquiry has to be made including an
enquiry involving at least two
respectable neighbours. It is thereafter
that the vacancy has to be notified and
objections invited. This is followed by
either dropping of the proceedings on
the objections being upheld that there
was no vacancy, or by allotment to a
tenant on finding the vacancy, or in
ordering a release of the building, in
case a landlord was found entitled to
have such a release under the Act.
Therefore, the notifying of a vacancy is
only a step in the process of making an
allotment of the building to a tenant.
The Act contemplates that no building
should be let out by a landlord except
through the process of allotment by the
Rent Control Authority. Since the order
notifying a vacancy is only a step in
passing the final order in a proceeding
under the Act regarding allotment, it is
clear that the same could be challenged
while challenging the final order, unless
there is anything in the Act precluding
such a challenge or conferring a finality
to the order notifying a vacancy. It was
held long ago by the Privy Council
in Moheshur Sing v. Bengal Govt. [(1859)
7 Moo IA 283] (Moo IA at p. 302)
“We are not aware of any law or
regulation prevailing in India which
12
renders it imperative upon the suitor to
appeal from every interlocutory order by
which he may conceive himself
aggrieved, under the penalty, if he does
not so do, of forfeiting forever the benefit
of the consideration of the appellate
court. No authority or precedent has
been cited in support of such a
proposition, and we cannot conceive
that anything would be more
detrimental to the expeditious
administration of justice than the
establishment of a rule which would
impose upon the suitor the necessity of
so appealing; whereby on the one hand
he might be harassed with endless
expense and delay, and on the other
inflict upon his opponent similar
calamities.”
12. In Sheonoth v. Ramnath [(1865) 10
MIA 413] the Privy Council reiterated
that a party is not bound to appeal from
every interlocutory order which is a step
in the procedure that leads to a final
decree. It is open on appeal from such
final decree to question an interlocutory
order.
13. This principle is recognised by
Section 105(1) of the Code of Civil
Procedure and reaffirmed by Order 43
Rule 1A of the Code. The two
exceptions to this rule are found in
Section 97 of the Code of Civil
Procedure, 1908, which provides that a
preliminary decree passed in a suit
could not be challenged in an appeal
13
against the final decree based on that
preliminary decree and Section 105(2) of
the Code of Civil Procedure, 1908 which
precludes a challenge to an order of
remand at a subsequent stage while
filing an appeal against the decree
passed subsequent to the order of
remand. All these aspects came to be
considered by this Court in Satyadhyan
Ghosal v. Deorajin Debi [(1960) 3 SCR
590 : AIR 1960 SC 941. Ed.: See
also(1981) 2 SCC 103, (2004) 12 SCC
754 and (2005) 3 SCC 422] wherein,
after referring to the decisions of the
Privy Council, it was held that an
interlocutory order which had not been
appealed from either because no appeal
lay or even though an appeal lay, an
appeal was not taken, can be challenged
in an appeal from a final decree or
order. It was further held that a special
provision was made in Section 105(2) of
the Code of Civil Procedure as regards
orders of remand where the order of
remand itself was made appealable.
Since Section 105(2) did not apply to
the Privy Council and can have no
application to appeals to the Supreme
Court, the Privy Council and the
Supreme Court could examine even the
correctness of an original order of
remand while considering the
correctness of the decree passed
subsequent to the order of remand. The
same principle was reiterated in Amar
Chand Butail v. Union of India [AIR 1964
SC 1658] and in other subsequent
decisions.
14
14. It is thus clear that an order
notifying a vacancy which leads to the
final order of allotment can be
challenged in a proceeding taken to
challenge the final order, as being an
order which is a preliminary step in the
process of decisionmaking in passing
the final order. Hence, in a revision
against the final order of allotment
which is provided for by the Act, the
order notifying the vacancy could be
challenged. The decision in Ganpat Roy
case[(1985) 2 SCC 307] which has
disapproved the ratio of the decision
in Tirlok Singh and Co.[(1976) 3 SCC
726] cannot be understood as laying
down that the failure to challenge the
order notifying the vacancy then and
there, would result in the loss of right to
the aggrieved person of challenging the
notifying of vacancy itself, in a revision
against the final order of allotment. It
has only clarified that even the order
notifying the vacancy could be
immediately and independently
challenged. The High Court, in our view,
has misunderstood the effect of the
decision of this Court in Ganpat Roy
case [(1985) 2 SCC 307] and has not
kept in mind the general principles of
law governing such a question as
expounded by the Privy Council and by
this Court. It is nobody’s case that there
is anything in the Act corresponding
either to Section 97 or to Section 105(2)
of the Code of Civil Procedure, 1908
precluding a challenge in respect of an
order which ultimately leads to the final
order. We overrule the view taken by the
15
Allahabad High Court in the present
case and in Kunj Lata v. Xth ADJ [(1991)
2 RCJ 658] that in a revision against
the final order, the order notifying the
vacancy could not be challenged and
that the failure to independently
challenge the order notifying the
vacancy would preclude a successful
challenge to the allotment order itself.
In fact, the person aggrieved by the
order notifying the vacancy can be said
to have two options available. Either to
challenge the order notifying the
vacancy then and there by way of a writ
petition or to make the statutory
challenge after a final order of allotment
has been made and if he is aggrieved
even thereafter, to approach the High
Court. It would really be a case of
election of remedies.”
10. It could thus be seen, that considering the scheme of
the Act; the principles as recognized by Section 105(1) and
Order XLIII Rule 1A of the Code of Civil Procedure, 1908 and
the various judgments of the Privy Council as well as this
Court, it was held, that an interlocutory order which had not
been appealed from, either because no appeal lay or even
though an appeal lay, an appeal was not taken, can be
challenged in an appeal from a final decree or order. It was
therefore held, that an order, notifying a vacancy which leads
16
to the final order of allotment can be challenged in a
proceeding taken out to challenge the final order, as being an
order which is a preliminary step in the process of decision
making in passing the final order. The learned three Judges
therefore held, that in a revision against the final order of
allotment which is provided for by the Act, the order notifying
the vacancy could be challenged. It was held, that the
decision in Ganpat Roy (supra), which disapproved the ratio
in Tirlok Singh (supra) cannot be understood as laying
down, that the failure to challenge the order notifying the
vacancy then and there, would result in the loss of right to
the aggrieved person of challenging the order notifying
vacancy itself, in a revision against the final order of
allotment. It was held, Ganpat Roy (supra) had only
clarified that even the order notifying the vacancy could be
immediately and independently challenged. It was therefore
held, that the High Court had misunderstood the effect of the
decision of this Court in Ganpat Roy (supra) and had not
kept in mind the general principles of law governing such a
17
question as expounded by the Privy Council and this Court.
It was held, that there was nothing in the Act corresponding
either to Section 97 or to Section 105(2) of the Code of Civil
Procedure, 1908 precluding a challenge in respect of an order
which ultimately leads to the final order. It was further held,
that in fact, the person aggrieved by the order notifying the
vacancy can be said to have two options available, either to
challenge the order notifying the vacancy then and there by
way of a writ petition or to make a statutory challenge after a
final order of allotment has been made and if he is aggrieved
even thereafter, to approach the High Court. It was further
observed, that it would really be a case of election 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 Achal Misra (supra), had filed a writ
petition being Writ Petition No.7 (MS) of 2003, challenging the
order of vacancy dated 4.6.2003. The learned single judge of
the High Court vide order dated 23.8.2006 after specifically
18
observing and reproducing paragraph 14 of the judgment of
this Court in the case of Achal Misra (supra) observed thus:
“In view of the aforesaid, liberty is given
to the petitioner to challenge the order
dated 4th June, 2003 after the final
order is passed 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 learned judge of the High Court in the impugned order,
could have made observations in paragraph 11 thereof. The
learned Judge goes to observe, that after dismissal of the writ
petition there was no occasion for the said High Court to
grant liberty to the respondents to avail remedy of revision
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 High Court dated 23.8.2006, which reads thus:
“Subject to aforesaid, writ petition is
dismissed.”
13. The learned single Judge of the High Court has also
failed to take into consideration that in the order dated
23.8.2006 itself, the learned judge while disposing of the
earlier writ petition had referred to the law laid down by this
19
Court in the case of Achal Misra (supra), wherein it is
specifically held, that even if a party does not challenge the
vacancy order by way of writ petition, it is still open to it to
challenge the same order along with the final order passed
under Section 16 in the revision under Section 18. However,
the learned Judge, in the impugned judgment, has not even
referred to the judgment of this Court in the case of Achal
Misra (supra), a relevant part of which has been reproduced
in the earlier order of the said High Court dated 23.8.2006.
14. In the present case, though the appellant and
deceased Shabbir Ahmed could have waited till passing of the
final order under Section 16, they had in fact challenged the
vacancy order before the High Court in a writ petition. The
High Court had specifically granted them liberty to challenge
the vacancy order along with the final order in view of the law
laid down by this Court in the case of Achal Misra (supra)
vide order dated 23.8.2006. The learned single judge of the
High Court, in the impugned judgment, while holding that
the revision is not tenable under Section 18 of the Act, places
20
reliance on the judgment of this Court in the case of
Narayani Devi vs. Mahendra Kr. Tripathi and others4. It
is to be noticed, that the judgment on which reliance is
placed by the single judge of the High Court is an order of one
paragraph rendered by two Judges of this Court. The learned
judge has failed in appreciating the law as laid down by this
Court in Achal Misra (supra), which lays down ratio
decidendi and is a binding precedent, which was very much
available on the record and a part of which had been
reproduced in the order dated 23.8.2006 in the earlier
proceedings between the same parties.
15. By relying on an order of one paragraph passed by
two learned Judges of this Court and ignoring to consider the
legal position of law, which is ratio decidendi and a binding
precedent as laid down by three learned Judges of this Court
in Achal Misra (supra), we find, that the learned single judge
of the High Court has committed a gross error.
16. We are, therefore, of the considered view, that the
High Court has patently erred in holding, that the revision
4 (1999) 9 SCC 61
21
entertained by the District Judge against the vacancy order
dated 4.6.2003 along with the final order of release dated
31.5.2007 was not tenable. The learned judge has totally
erred in observing, that the order of the High Court dated
23.8.2006 dismissing the writ petition had attained finality
since it was not challenged before this Court. The learned
judge ought to have taken into consideration, that though the
vacancy order was challenged in a writ petition, the High
Court vide order dated 23.8.2006, while dismissing the writ
petition had reserved the right of the petitioners (appellant
and proforma respondent No.3 herein) before it to challenge
the vacancy order along with the final order passed under
Section 16. The observation of the learned judge, that the
High Court in its earlier order dated 23.8.2006, could not
have granted liberty to challenge the vacancy order along with
the final order is also contrary to the settled principles of
judicial 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.
22
“18. Appeal against order of allotment or
release: (1) No appeal shall lie from any
order under section 16 or section 19,
whether made before or after the
commencement of this section, but any
person aggrieved by a final order under
any of the said sections may, within
fifteen days from the date of such order,
prefer a revision to the District Judge on
any one or more of the following
grounds, namely:
(a) that the District Magistrate has
exercised a jurisdiction not vested
in him by law;
(b) that the District Magistrate has
failed to exercise a jurisdiction
vested in him by law;
(c) that the District Magistrate
acted in the exercise of his
jurisdiction illegally or with
material irregularity.
(2) The revising authority may confirm
or rescind the final order made under
subsection (1) or may remand the case
to the District Magistrate for rehearing
and pending the revision, may stay the
operation of such order on such terms,
if any, as it thinks fit.
Explanation—The power to rescind the
final order under this subsection shall
not include the power to pass an
allotment order or to direct the passing
of an allotment order in favour of a
person different from the allottee
mentioned in the order under revision.
(3) Where an order under section 16 or
section 19 is rescinded, the District
23
Magistrate shall, on an application
being made to him on that behalf, place
the parties back in the position which
they would have occupied but for such
order or such part thereof as has been
rescinded, and may for that purpose
use or cause to be used such force as
may be necessary”.
19. It could thus be seen, that the earlier right of an
appeal which was provided under Section 18 had been
substituted by a remedy of revision with the limited grounds
of interference. One of the grounds available is that, the
District Magistrate had acted in exercise of his jurisdiction
illegally or with material irregularity.
20. This Court in the case of Sarla Ahuja vs. United
India Insurance Company Ltd.5 had an occasion to
consider the scope of proviso to Section 25B(8) of the Delhi
Rent Control Act, 1958. This Court found, that though the
word ‘revision’ was not employed in the said proviso, from the
language used therein, the legislative intent was clear that
the power conferred was revisional power. This Court
observed thus:
5 (1998) 8 SCC 119
24
“11. Learned Single Judge of the High
Court in the present case has reassessed
and reappraised the evidence afresh to
reach a different finding as though it was
exercising appellate jurisdiction. No
doubt even while exercising revisional ju
risdiction, a reappraisal of evidence can
be made, but that should be for the lim
ited purpose to ascertain whether the
conclusion arrived at by the factfinding
court is wholly unreasonable…..”
It could thus be seen, that this Court has held, that
the High Court while exercising the revisional powers under
the Delhi Rent Control Act, 1958 though could not reassess
and reappraise the evidence, as if it was exercising appellate
jurisdiction, however, it was empowered to reappraise the
evidence for the limited purpose so as to ascertain whether
the conclusion arrived at by the factfinding court is wholly
unreasonable.
21. Again in the case of Ram Narain Arora vs. Asha
Rani and others6, this Court had an occasion to consider
the aforesaid powers under the Delhi Rent Control Act, 1958.
This Court observed thus:
“12. It is no doubt true that the scope of
a revision petition under Section 25B(8)
6 (1999) 1 SCC 141
25
proviso of the Delhi Rent Control Act is a
very limited one, but even so in examin
ing the legality or propriety of the pro
ceedings before the Rent Controller, the
High Court could examine the facts avail
able in order to find out whether he had
correctly or on a firm legal basis ap
proached the matters on record to decide
the case. Pure findings of fact may not be
open to be interfered with, but (sic if) in a
given case, the finding of fact is given on
a wrong premise of law, certainly it
would be open to the revisional court to
interfere with such a matter…….”
It was thus held, that though the scope of revisional
powers of the High Court was very limited one, but even so in
examining the legality or propriety of the proceedings before
the Rent Controller, the High Court could examine the facts
available in order, to find out whether he had correctly or on
a firm legal basis approached the matters on record to decide
the case. It has also been held, that pure findings of fact may
not be open to be interfered with, but in a given case, if the
finding of fact is given on a wrong premise of law, it would be
open to the revisional court to interfere with the same.
26
22. In the case of Harshavardhan Chokkani vs.
Bhupendra N. Patel and others7, this Court had an
occasion to consider the scope of revisional power under
Section 22 of the Andhra Pradesh Buildings (Lease, Rent and
Eviction) Control Act, 1960. This Court observed thus:
“7. There can be no controversy about
the position that the power of the High
Court under Section 22 of the Act is
wider than the power under Section 115
CPC. Nonetheless, the High Court is
exercising the revisional power which in
its very nature is a truncated power.
The width of the powers of the revisional
court cannot be equated with the
powers of the appellate court. In
examining the legality and the propriety
of the order under challenge, what is
required to be seen by the High Court is
whether it is in violation of any
statutory provision or a binding
precedent or suffers from misreading of
the evidence or omission to consider
relevant clinching evidence or where the
inference drawn from the facts proved is
such that no reasonable person could
arrive at or the like. It is only in such
situations that interference by the High
Court in revision in a finding of fact will
be justified. Mere possibility of a
different view is no ground to interfere
in exercise of revisional power. From the
above discussion, it is clear that none of
the aforementioned reasons exist in this
7 (2002) 3 SCC 626
27
case to justify interference by the High
Court.”
23. This Court thus held, that the interference in
revisional powers would be permitted only if the High Court
finds that the order impugned is in violation of any statutory
provision or a binding precedent or suffers from misreading of
the evidence or omission to consider relevant clinching
evidence or where the inference drawn from the facts proved
is such that no reasonable person could arrive at or the like.
24. Lastly, the Constitution Bench of this court in the
case of Hindustan Petroleum Corporation Limited vs.
Dilbahar Singh8 had an occasion to consider the scope of
revisional powers as contained in the Kerala Buildings (Lease
and Rent Control) Act, 1965, T.N. Buildings (Lease and Rent
Control) Act, 1960 and Haryana Urban (Control of Rent and
Eviction) Act, 1973. The Court observed thus:
“43. We hold, as we must, that none of
the above Rent Control Acts entitles the
High Court to interfere with the findings
of fact recorded by the first appellate
court/first appellate authority because
on reappreciation of the evidence, its
view is different from the court/authority8 (2014) 9 SCC 78
28below. The consideration or examination
of the evidence by the High Court in revi
sional jurisdiction under these Acts is
confined to find out that finding of facts
recorded by the court/authority below is
according to law and does not suffer from
any error of law. A finding of fact
recorded by court/authority below, if
perverse or has been arrived at without
consideration of the material evidence or
such finding is based on no evidence or
misreading of the evidence or is grossly
erroneous that, if allowed to stand, it
would result in gross miscarriage of jus
tice, is open to correction because it is
not treated as a finding according to law.
In that event, the High Court in exercise
of its revisional jurisdiction under the
above Rent Control Acts shall be entitled
to set aside the impugned order as being
not legal or proper. The High Court is en
titled to satisfy itself as to the correct
ness or legality or propriety of any deci
sion or order impugned before it as indi
cated above. However, to satisfy itself to
the regularity, correctness, legality or
propriety of the impugned decision or the
order, the High Court shall not exercise
its power as an appellate power to reap
preciate or reassess the evidence for
coming to a different finding on facts. Re
visional power is not and cannot be
equated with the power of reconsidera
tion of all questions of fact as a court of
first appeal. Where the High Court is re
quired to be satisfied that the decision is
according to law, it may examine
whether the order impugned before it
29
suffers from procedural illegality or irreg
ularity.”
It can thus be seen, that the Constitution Bench has
settled the position, that the revisional power does not entitle
the High Court to interfere with the finding of the fact
recorded by the first appellate court/first appellate authority
because on reappreciation of the evidence, its view is different
from the court/authority below. The consideration or
examination of the evidence is confined to find out as to
whether the finding of facts recorded by the court/authority
below is according to law and does not suffer from any error
of law. It has been held, that a finding of fact recorded by
court/authority below, if perverse or has been arrived at
without consideration of the material evidence or such finding
is based on no evidence or misreading of the evidence or is
grossly erroneous that, if allowed to stand, it would result in
gross miscarriage of justice, in such a case, it is open to
correction because it is not treated as a finding according to
law.
30
25. No doubt, that the observations in the aforesaid
cases deal with the revisional powers to be exercised by the
High Court under the special statute. This Court has
observed, that in examining the legality and the propriety of
the order under challenge in revision, what is required to be
seen by the High Court, is whether it is in violation of any
statutory provision or a binding precedent or suffers from
misreading of the evidence or omission to consider relevant
clinching evidence or where the inference drawn from the
facts proved is such that no reasonable person could arrive at
or the like. It has been held, that if such a finding is allowed
to stand, it would be gross miscarriage of justice and is open
to correction because it is not to be treated as a finding
according to law.
26. The revisional powers conferred upon the District
Judge under the U.P. Act, 1972 are almost analogous with
the revisional powers of the High Court that have been
interpreted by this Court in the aforesaid judgments. We
find, that the said principles can be aptly made applicable to
the revisional powers of the District Judge under the U.P. Act,
31
1972. If the said principles are applied to the facts of the
present case, it could be seen, that the learned District Judge
was fully justified in interfering with the order passed by the
Rent Controller and Eviction Officer.
27. It will be relevant to reproduce a part of the judgment
and order passed by the learned District Judge while allowing
the revision filed by the present appellant and late Shabbir
Ahmed.
“The law on the point is very clear.
Hon’ble Supreme Court in ARC 1995(1)
220 Harish Tandon Vs. A.D.M.
Allahabad has defined the scope of
Section 12(1)(b) – Deemed vacancy. The
Hon’ble Court has held that the words
“allowed” and “occupy” are significant.
The extract of Head Note ‘D’ (para 18) of
the judgment is reproduced below for
ready reference.
“SubSection (1)(b) of Section 12 says
that a landlord or tenant of a building
shall be deemed to have ceased to
occupy the building or a part thereof if
he has allowed it to be occupied by any
person who is not a member of his
family.
The words ‘allowed’ and ‘occupy’ are
significant. The landlord or the tenant,
as the case may be, shall be deemed to
have ceased to occupy the building only
if he has allowed it to be occupied by
32
any person who is not a member of his
family. The words “allowed to be
occupied” indicate that the possession
of such building has been given to a
person who is not a member of the
family. It shall not be attracted when
any person who is not a member of the
family resides in such building either
along with landlord or the original
tenant. If the landlord or the tenant
allows any person, who is not a member
of the family within the meaning of the
Act to occupy the premises, with the
object that such person shall occupy
such premises in his own rights, in that
event, clause (b) of subsection (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. made surprise inspection on
1581999 and found Shabir Ahmed,
Smt. Shafikan, Naseema, Shabnam and
Nasim present in the premises. It was
also told to him that Rashid Ahmed has
gone to his village. It is also noted in
the inspection note that in the given
premises, Sri Rashid himself, Sri Inam,
s/o Rashid along with his wife and
children, Sri Shabir Ahmed along with
his wife Smt. Shafikan, daughter and
Sri Ayub, Naseema and Nasim were
residing in the property. It is worthy to
note that Sri Inam is the son of Rashid
who is said to be the tenant even
according to landlord. The persons
named in the inspection report are
either the family members of tenant
33
Rashid or the family members of his
brother Akbar. Admittedly except the
family member of Rashid or Akbar no
other person was found residing in the
property in question. In this
perspective, the factum of deemed
vacancy is to be seen. The Hon’ble
Supreme Court in so many words has
held that the words “allowed to be
occupied” indicate that the possession
of such building has been given to a
person who is not a family member of
the tenant. It shall not be attracted
when any person who is not a member
of family of the tenant reside in such
building either along with landlord or
the original tenant meaning thereby if
any person other than the family
member occupies such premises in his
own right, in that event, clause (b) of
subsection (1) of Section 12 shall be
attracted and not otherwise. Here in
the present case even according to spot
inspection, the family member of Rashid
who was the original tenant was found
residing therein. The other members
even if not their family members were
found residing along with the family
members of the original tenant and not
in their own exclusive right. Therefore,
the vacancy could not have been
declared in such eventuality.”
28. It could be seen, from the judgment and order of the
District Judge, that the District Judge has considered the
words “allowed to be occupied” in Section 12 of the U.P. Act,
34
1972 as interpreted by this Court in the case of Harish
Tandon vs. Addl. District Magistrate, Allahabad, U.P.
and others9. This Court in Harish Tandon (supra), while
construing the words “allowed to be occupied” as appearing
in Section 12 of the U.P. Act, 1972, had clearly held, that the
said words would be attracted if the possession of such a
building had been given to a person, who was not family
member of the tenant i.e. if any person other than the family
member was permitted to occupy such premises in his own
right. In such an event, clause (b) of subsection (1) of
Section 12, would be attracted. This Court had further held,
that clause (b) of subsection (1) of Section 12 would not be
attracted when any person, who is a member of the family
resides in such building either along with the landlord or the
original tenant.
29. A perusal of the inspection report clearly established,
that the original tenant was residing in the tenanted premises
along with his son, brother’s son and their families. As such,
the inspection report clearly established, that no person who
9 (1995) 1 SCC 537
35
was not a member of the tenant’s family was allowed to
occupy the premises in his own right. As such, the finding of
the Rent Controller and Eviction Officer that the landlord had
proved the case under clause (b) of subsection (1) of Section
12 of the U.P. Act, 1972 was totally contrary to the law as
interpreted by this Court in the case of Harish Tandon
(supra). Not only that, the finding as recorded by the said
authority was totally on misreading or ignorance of the
evidence on the record. It could thus be seen, that the case
would squarely fall in the category of exercising the
jurisdiction either illegally or with material irregularity. In
that view of the matter, the learned District Judge was wholly
justified in interfering with the order impugned before him
and reversing the same.
30. Though the District Judge as well as the High Court
has also gone on the issue of Section 14, we do not propose
to go into the said aspect of the matter, inasmuch as, we find,
that the present appeal deserves to be allowed on the
aforesaid grounds.
36
31. We find, that the learned single judge of the High
Court has also erred in interfering with the wellreasoned
order passed by the learned District Judge while exercising
the jurisdiction of the High Court under Article 227 of the
Constitution of India.
32. It is a well settled principle of law, that in the guise of
exercising jurisdiction under Article 227 of the Constitution
of India, the High Court cannot convert itself into a court of
appeal. It is equally well settled, that the supervisory
jurisdiction extends to keeping the subordinate tribunals
within the limits of their authority and seeing that they obey
the law. It has been held, that though the powers under
Article 227 are wide, they must be exercised sparingly and
only to keep subordinate courts and Tribunals within the
bounds of their authority and not to correct mere errors.
Reliance in this respect can be placed on a catena of
judgments of this Court including the ones in Satyanarayan
Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa
Tirumale10, Bathutmal Raichand Oswal vs. Laxmibai R.
10 (1960) 1 SCR 890
37
Tarta & Anr.11, M/s India Pipe Fitting Co. vs. Fakruddin
M. A. Baker & Anr.12, Ganpat Ladha v. Sashikant Vishnu
Shinde13, Mrs. Labhkuwar Bhagwani Shaha & Ors. vs.
Janardhan Mahadeo Kalan & Anr.14, Chandavarkar Sita
Ratna Rao vs. Ashalata S. Guram15, Venkatlal G. Pittie
and another vs. Bright Bros (Pvt.) Ltd.16, State of
Maharashtra vs. Milind & Ors.17, State Through Special
Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and
others18, Ranjeet Singh vs. Ravi Prakash19, Shamshad
Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through
LRs. and others20, Celina Coelho Pereira (Ms.) and others
vs. Ulhas Mahabaleshwar Kholkar and others21.
33. In the present case, we are of the considered view,
that the approach of the High Court in exercising the
jurisdiction under Article 227 of the Constitution of India was
11 (1975) 1 SCC 858
12 (1977) 4 SCC 587
13 (1978) 2 SCC 573
14 (1982) 3 SCC 514
15 (1986) 4 SCC 447
16 (1987) 3 SCC558
17 (2001) 1 SCC 4
18 (2003) 6 SCC 641
19 (2004) 3 SCC 682
20 (2008) 9 SCC 1
21 (2010) 1 SCC 217
38
totally erroneous. The learned District Judge while exercising
his power under Section 18 of the U.P. Act, 1972 and after
finding that the order passed by the Rent Controller and
Eviction Officer was totally contrary to the law laid down by
this Court in Harish Tandon (supra), while interpreting
clause (b) of subsection (1) of Section 12 of the U.P. Act,
1972 and also that the order passed was totally on a perverse
reading of the evidence, had interfered with the said order
and reversed the same. The High Court totally
misinterpreting the order passed by the earlier learned judge
in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an
erroneous premise, held that the vacancy order could not
have been challenged along with the final order. The finding
is totally contrary to the law laid down by the bench of three
learned judges of this Court in Achal Misra (supra), a
relevant part of which was reproduced by the High Court in
its earlier order dated 23.8.2006. The learned judge ignoring
Achal Misra (supra), which is a binding precedent, relies on
an order of one paragraph of the two learned judges of this
39
Court 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 unwarranted and unjustified.
34. In the result, the appeal is allowed. The order of the
High Court dated 26.10.2017 is quashed and set aside.
There shall be no order as to costs.
………………….J.
[NAVIN SINHA]
………………….J.
[B.R. GAVAI]
NEW DELHI;
JUNE 26, 2020