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/authority

8 (2014) 9 SCC 78
28

below. 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



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