R.K. Shukla vs Sudhrist Narain Anand

2. The RC & EO passed an order dated

24th of January, 1981, on the question of

vacancy and also directed the matter to be

put up on 31st of January, 1981 for

arguments on allotment and orders. It was

the case of the respondent that by the

aforesaid order dated 24th of January,

1981, he came to know that certain

applications were filed before the RC & EO

3 for allotment of the disputed premises

although he along with his family members

was very much living in the disputed

premises and there was no occasion for

anyone to make any application for

allotment. Accordingly, the respondent had

brought to the notice of the RC & EO that

he was occupying the disputed premises and

the question of allotment of the disputed

premises to anyone else could not arise at

all. Therefore, all the applications for

grant of allotment of the disputed

premises must be dismissed. It was all

along the case of the respondent that he

had filed his objections with regard to

the matter of allotment of the disputed

premises on 24th of January, 1981 to the

extent that the disputed premises which

was occupied and possessed by the

respondent was No. 21, Hamilton Road and

not No. 21, Georgetown, Allahabad, with

which the respondent had no concern and

4 the allotment applications, if they

related to No. 21, Hamilton Road,

Allahabad were liable to be rejected as no

part of the same was lying vacant. At this

stage, it would not be out of place to

mention that the notice received by the

respondent was not indicative of the fact

that the question of allotment of the

disputed premises would be considered on

3rd of January, 1981. It was also all along

the case of the respondent that the notice

was served on him at his address although

the notice mentioned the address of the

respondent as 103, Chowk Gangadas,

Allahabad and on the back of the notice,

there was the process server's report that

the respondent was residing at No. 21,

Hamilton Road, Georgetown, Allahabad.

According to the respondent, without

considering the objections filed by him,

the RC & EO on 24th of January, 1981

declared the vacancy particularly when the

5 respondent himself had appeared before the

RC & EO specifically bringing to his

notice that he was in physical occupation

of the disputed premises and nothing was

vacant which could be said to be available

for allotment. It was also the case of the

respondent that the RC & EO without

considering the objection filed by him

passed the order dated 24th of January,

1981 declaring vacancy in the following

manner: -

"The file was put up. The report of RCI seen. On the spot the house was locked. No body was living. At the main gate a Board of Shri Prasidh Narain Anand was there. Landlord has appeared. He has made no objection. It is clear that the disputed portion, which is western portion of the house is vacant because there is no objection from Sri S.N.Anand, hence vacancy is being notified. To be put up on 31st January for argument on allotment and orders."

6 3. A bare perusal of the aforesaid order

of the RC & EO passed on 24th of January,

1981 would make it clear that the said

order was passed without considering the

objection of the respondent and by even

mentioning that the respondent had no

objection when it was all through his case

that the objections were submitted before

the RC & EO. It is also an admitted

position that the alleged report of the

RCI would only show that the disputed

premises was locked at the time of

inspection and it did not indicate that no

body was residing there. Therefore, it was

the case of the respondent that the fact

that the disputed premises was locked

cannot by any stretch of imagination mean

that no body was residing in the disputed

premises entitling the RC & EO to declare

the same vacant for allotment.

7

4. On 20th of April, 1981, the respondent

was heard and he was given time to file

evidence. Thereafter, on 3rd of June, 1981,

an order was passed directing the

respondent to file evidence on that very

date and the case was adjourned to 3rd of

July, 1981 for arguments on vacancy. On

26th of September, 1981, the respondent and

the applicants were present and were heard

and on 18th of November, 1981, the RC & EO

passed an order of allotment in favour of

the appellant. Against the aforesaid order

of allotment, the respondent filed a

revision petition under Section 18 of the

Uttar Pradesh Urban Buildings (Regulation

of letting, Rent and Eviction) Act, 1972

before the District Judge, Allahabad,

which was, however, dismissed by order

dated 4th of March, 1982. Feeling aggrieved

by the allotment order and the dismissal

of the revision petition, the respondent

filed a writ petition before the High

8 Court of Judicature at Allahabad wherein a

challenge was made to the allotment order

and a prayer was made for quashing the

same. By a judgment and order dated 9th of

November, 2004, the High Court had allowed

the writ petition thereby setting aside

the order dated 18th of November, 1981

passed by the RC & EO allotting the

disputed premises in favour of the

appellant and the order dated 4th of March,

1982 passed by the District Judge,

Allahabad dismissing the revision directed

against the said allotment order. The

High Court in the impugned judgment had

also considered the validity of the order

dated 24th of January, 1981, declaring

vacancy passed by the RC & EO and held the

same to be invalid. It is this judgment of

the High Court, which is impugned in this

appeal.

9

5. We have heard the learned counsel for

the parties and examined the judgment of

the High Court and the District judge as

well as the order of allotment passed by

the RC & EO and the order declaring

vacancy and other materials on record.

Before we consider the rival submissions

made on behalf of the parties, we may, at

this stage, record the findings of the

High Court while allowing the writ

petition which are as follows :

(i) The report of RCI had only shown that the main gate of the disputed premises was locked and that if found appropriate, it was the duty of the RC & EO to call the parties to ascertain the correct position. This by itself did not amount to vacancy. There was nothing in the report to show that there was vacancy in the house of the premises in question.

(ii) The order dated 24th of January, 1981 declaring vacancy did not show that on that date, either the landlord or any applicant was present.

(iii) It was not clear from the order sheet as to whether the RCI had inspected the disputed premises and submitted his report on the direction of the RC & EO.

10 (iv) The RCI report, the order sheet and any other document did not show that any notice was given to the landlord before inspection by the RCI or that he was made aware of the RCI Report.

(v) No order directing the landlord to file objection against vacancy was passed.

(vi) In view of sub-rule (3) of Rule 9 of the Rules framed under the U.P.Act No. 13 of 1972 and the case reported in Yogendra Tiwari Vs. D.J. Gorakhpur AIR 1984 SC 1149, it was essential to issue notice to the landlord so that he could file release application if he so desired.

(vii) From the orders dated 20.4.1981, 3.7.1981 and 7.8.1981 on the order sheet, it would be clear that the RC & EO had heard the question of vacancy again.

(viii) The landlord did not file any copy of the release order of 1952.

(ix) Against the order dated 24.1.1981, declaring vacancy, although no challenge was made independently but the same was challenged by an application for amendment subsequently filed.

(x) The vacancy declaration order was bad in law for the following reasons : (a) Inspection was made by the RCI without notice to the landlord. (b) there was no material or evidence which could justify declaration of vacancy. The RCI Report, even if it was correct, did not disclose existence of vacancy; (c) Vacancy was declared without issuing notice to the landlord.

(d) Vacancy declaration order

11 was reconsidered by the RC & EO but no fresh order declaring or holding vacancy was passed by the RC & EO.

(xi) The allotment order was in violation of Section 16(9) of the Act inasmuch as while making the allotment order, the allottee was not required to pay to the landlord advance presumptive rent of one month.

6. On the aforesaid findings arrived at

by the High Court, the writ petition was

allowed. Before we proceed further, we may

also record the findings arrived at by the

revisional court which are as follows :-

(i) Subsequent to the receipt of the Rent Control Inspector, a notice was formally sent to the landlord who had put in appearance on 3.1.1981 but he did not file any objection nor had sought time for filing objection.

(ii) There was no objection filed by the landlord as to the vacancy before passing the order dated 24.1.1981.

(iii) The finding of the RC & EO that the building in dispute was vacant was a finding of fact not vitiated by any error of jurisdiction.

(iv) There was ample evidence on record to show that the

landlord was residing at 103, Chowk Gangadas, Allahabad and

12 the disputed premises was vacant. The name of the landlord had been entered in the electoral roll consistently from the year 1966 to year 1980.

(v) The affidavit of Smt. Prabha Shukla, wife of the appellant to the effect that the disputed premises was let out to different university students was not contradicted by the landlord.

(vi) All the persons who had applied for allotment had alleged that the disputed premises was formerly in

occupation of one Sri S.K.Misra but even in the objection purported to have been filed on 24.1.1981, there was no averment that the building in dispute was not occupied by S.K.Misra or any other person.

These were the findings made by the

revisional court while rejecting the

revision petition filed by the respondent.

7. Keeping in mind the findings arrived at

by the revisional court and the High

Court, let us now deal with the

submissions of the learned counsel for the

parties.

13

8. The learned senior counsel for the

appellant Mr. Gupta submitted before us

that the High Court was not justified in

interfering with the order dated 24th of

January, 1981 declaring vacancy, in the

exercise of its writ jurisdiction under

Article 226 of the Constitution. In this

context, it was brought to our notice that

during the pendency of the writ petition

before the High Court, after almost

20 years, on 18th of February, 2002, an

application praying for amendment of the

writ petition for challenging the order

dated 24th of January, 1981 by which the

vacancy was declared was filed, which was

allowed by the High Court by its order

dated 22nd of May, 2002. Against this order

of the High Court, the appellant had filed

an application for recall of the said

order but the same was also rejected by

the High Court by its order dated 14th of

14 February, 2003. Aggrieved by the orders of

the High Court, the appellant had filed a

special leave petition before this court

challenging the aforesaid orders. This

court had allowed the special leave

petition by setting aside the orders dated

22nd of May, 2002 and 14th of February, 2003

in the following manner: -

"On going through the materials on record and keeping in view the limited notice we ordered when the special leave petition initially came up for orders relating to admission, the fact that has to be kept into consideration is not even so much as is to what really transpired on that day in court but how best the situation should be solved and the interests of justice could be served. On that view of the matter, we are fully satisfied that the orders of the High Court under challenge are to be set aside and convinced that the interest of justice can be better served only if the orders dated 22.5.2002 and 14.02.2003 are set aside and the Civil Misc. Writ Petition No. 4621 of 1982 is restored to its file to be disposed of afresh on merits and in accordance with law, after hearing both the parties and giving them due opportunity.

Having regard to the further fact that the writ petition is of the year 1982, in the interest of justice and in order to avoid any further delay, the High Court may ensure the disposal of the matter as expeditiously as possible,

15 atleast within three months from the date of receipt of a copy of this order.

The appeals are disposed of on the above terms. No costs."

9. The learned senior counsel for the

appellant Mr. Gupta, therefore, sought to

argue before us that by virtue of the

order passed by this court in the

aforesaid special leave petition, setting

aside the aforementioned two orders of the

High Court, the fact of existence of

vacancy had attained finality. The learned

senior counsel thus submitted that it was

not open to the High Court to adjudicate

upon the question of vacancy after the

decision of this court and also in view of

the concurrent findings of fact of the RC

& EO and the revisional court. The learned

senior counsel for the appellant Mr. Gupta

also sought to argue that it was not open

to the High Court to reconsider the

question of vacancy which had been fully

16 answered by the RC & EO and affirmed by

the revisional court in view of the

decision of this court in Ganpat Roy and

others Vs. A.D.M. and others [(1985) 2 SCC

307], and that the High Court was not

justified in not following the dictum of

Ganpat Roy's case merely because it had

been referred to a larger bench.

10. These submissions of the learned

senior counsel for the appellant were

hotly contested by the learned senior

counsel appearing on behalf of the

respondent.

11. After considering the rival

submissions of the parties, we may note

that the question whether the respondent

was given sufficient opportunity to object

and lead evidence to disprove the fact of

vacancy was taken into consideration by

the High Court and from the materials on

17 record and the evidence adduced by the

parties, it was open to the High Court,

even in the exercise of its power under

Article 226/227 of the Constitution, to

come to a finding of fact that such

opportunity was not at all given to the

respondent. Even assuming that the High

Court was wrong in coming to a conclusion

of fact that no opportunity was given to

the respondent to file objections, then

also, we are not inclined to interfere

with the judgment of the High Court in the

exercise of our discretionary power under

Article 136 of the Constitution for the

reasons stated hereinafter.

12. First, the finding of the High Court,

as noted herein earlier, in clause (vii)

viz., that from the orders dated 20th of

April 1981, 3rd of July, 1981 and 7th of

August, 1981 on the order sheet, it was

clear that the RC & EO had heard the

18 question of vacancy again is very crucial.

Having done so, it was imperative that the

RC&EO should have passed a fresh order to

the effect whether the disputed premises

was vacant or not. However, in a rather

peculiar and strange manner, the RC&EO

proceeded and fixed a date for passing of

the allotment order on the basis of the

order dated 24th of January, 1981. We may

note at this stage that the provisions

regarding allotment of vacant buildings

are governed by Sections 12, 16 and 34(8)

of the U.P. Urban Buildings (Regulation of

Letting, Rent and Eviction) Act, 1972 (in

short "the Act") and the rules framed

under the said Act. The passing of the

allotment order without declaring vacancy

was a gross error committed by the RC&EO

because under the scheme of the provisions

of the act, the preliminary step was to

declare a vacancy, which, in our view, was

not done and even if done, the same was

19 not in a bonafide manner. The RC&EO should

have at least conveyed their decision on

that point.

13. Secondly, the RCI and the RC&EO while

submitting the report and passing the

order declaring vacancy respectively did

not adhere to the provisions governing the

allotment of vacant buildings, as

enumerated herein above. We find from

record that no neighbour was enquired to

ascertain vacancy, much less two

neighbours as mandated by the rules.

14. Thirdly, the finding of the High Court

that simply because the gate was locked,

it was no ground to conclude that the

disputed premises was vacant cannot be

ignored. The learned senior counsel for

the appellant contended that in this case,

a deemed vacancy had occurred and

ingredients of Section 12 of the Act which

20 deals with Deemed vacancy of buildings

were satisfied. As rightly pointed out by

the High Court in the impugned judgment,

the fact that the gate was locked cannot

be a conclusive proof to hold that the

respondent had removed his effects there

from or that he had allowed it to be

occupied by any person who was not a

member of his family or even that he and

members of his family had taken up

residence elsewhere. In our view, the

question of deemed vacancy cannot arise at

all in view of the facts, which would be

evidenced from the order of the RC & EO

and the report of the RCI. From the said

order of the RC & EO, it does not appear

that the respondent had substantially

removed his effects from the disputed

premises. As stated hereinabove, the fact

of the gate being locked and the absence

of the respondent at the time of the

inspection would not mean that substantial

21 removal of effects of the respondent had

been made. In view of our discussions made

hereinabove, we are not of the view that

any deemed vacancy had occurred and on

this ground, we are not inclined to

interfere with the judgment of the High

Court.

15. As regards the objection raised by the

learned senior counsel for the appellant

to the effect that the High Court should

have followed the dictum in Ganpat Roy's

case (Supra) the same is not acceptable.

At that time, the matter was referred to a

larger bench. The decision was, therefore,

debatable and not conclusive. But now all

doubts regarding the dictum in Ganpat

Roy's case [supra] have been set at rest

by a decision of this court in Achal

Mishra Vs. Rama Shanker Singh and ors.

22 [(2005) 5 SCC 531], wherein this court in

Para 14 observed as under: -

"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 decision-making 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 which has disapproved the ratio of the decision in Tirlok Singh and Co. 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 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

23 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 Allahabad High court in the present case and in Kunj Lata V. Xth ADJ, 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."

16. In the present case, the High Court

had permitted the respondent to amend the

writ petition whereby he sought to

24 challenge the order dated 24th of January,

1981 declaring vacancy. Such order of the

High Court allowing the amendment was

challenged before this court and this

court had remanded the matter to the High

Court setting aside such order requesting

the High Court to decide the writ petition

afresh. Since this Court had remanded the

matter to the High Court for a fresh

decision on the question whether the

amendment should be allowed or not along

with the merits of the writ petition, it

cannot be said that the High Court was in

error after the order of this court to

allow the application for amendment on

facts as this court did not decide the

merits as to whether the application for

amendment should be allowed or not. We

have already quoted hereinearlier the

substantial portion of the order of this

court in that special leave petition and

from the same, it is clear that it was

25 passed without going into the merits of

the orders allowing the application for

amendment of the writ petition and this

court had simply set aside the said orders

of the High Court remanding the matter to

the High Court for disposal of the same

afresh and in accordance with law after

hearing both the parties and after giving

them due opportunity. The High Court by

the impugned judgment had simply followed

the directions made by this court in the

order passed in that special leave

petition, as quoted hereinearlier, and

came to a conclusion that the order dated

24th of January, 1981 declaring vacancy was

bad in law. That apart, it is clear from

the decision of this court in Achal

Mishra's case [supra] that it was open to

the respondent to challenge the order

declaring vacancy in the writ petition

against the allotment order even though

the said order was not challenged

26 independently there and then. Therefore,

the High Court was fully justified in

considering the validity of the vacancy

declaration order while hearing the writ

petition against the allotment order. In

view of our discussions made hereinabove,

we are, therefore, of the view that since

this court had not decided that special

leave petition on merits, it cannot be

said that the vacancy declaration order

had attained finality. Therefore, the High

Court was fully justified in considering

the question of vacancy, which was a core

issue in the writ petition because if the

vacancy declaration itself was bad in law,

the consequent allotment order which was

passed cannot be said to be not in

violation of Section 16 of the Act. In any

view of the matter, the question regarding

vacancy was a core issue in the writ

petition and in our view, the High Court,

on consideration of the materials on

27 record was entitled to look into it by

invoking its writ jurisdiction under

Article 226 of the Constitution. Since the

order passed by the High Court was based

on consideration of facts, which cannot be

interfered with except in exceptional

cases, we do not find any reason to

interfere with the same under Article 136

of the Constitution of India.

17. There is another aspect of this matter

for which, in the facts and circumstances

of this case, we would not exercise our

discretionary power under Article 136 of

the Constitution. The vacancy declaration

order and the consequent allotment in

favour of the appellant was made in the

manner indicated herein earlier and the

appellant stormed into the disputed

premises more than two decades back and

started enjoying the same without paying a

single penny in respect of the same. It

28 was only after the judgment of the High

Court that he had deposited the amount as

directed by the High Court. Therefore, we

do not find any reason to interfere with

the impugned judgment of the High Court

under Article 136 of the Constitution in

the facts and circumstances of the present

case.

18. For the foregoing reasons, we do not

find any merit in this appeal. The appeal

is thus dismissed. There will be no order

as to costs. The appellant is, however,

granted time to vacate the disputed

premises by 30th of November, 2008 subject

to filing an usual undertaking before this

court within one month from this date.

..........................................J. [A.K.MATHUR]

29 New Delhi; .............................................J. May 12,2008 [TARUN CHATTERJEE]

30