Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 1- A 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 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 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 observing and reproducing paragraph 14 of the judgment of this Court in the case of Achal Misra (supra) observed thus: MOHD. INAM v. SANJAY KUMAR SINGHAL & ORS. [B. R. GAVAI, J.] “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 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 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 4 (1999) 9 SCC 61 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 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. “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; MOHD. INAM v. SANJAY KUMAR SINGHAL & ORS. [B. R. GAVAI, J.] (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 sub-section (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 sub-section 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 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 25-B(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: “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. 5 (1998) 8 SCC 119 No doubt even while exercising revisional jurisdiction, a reappraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact-finding 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 fact-finding 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 25-B(8) proviso of the Delhi Rent Control Act is a 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. 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.
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 6 (1999) 1 SCC 141 7 (2002) 3 SCC 626 MOHD. INAM v. SANJAY KUMAR SINGHAL & ORS. [B. R. GAVAI, J.] (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 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 8 (2014) 9 SCC 78 court/authority below. The consideration or examination of the evidence by the High Court in revisional 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 justice, 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 entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated 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 reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 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. MOHD. INAM v. SANJAY KUMAR SINGHAL & ORS. [B. R. GAVAI, J.]
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, 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 Harish Tandon Vs. A.D.M. Allahabad ARC 1995(1) 220 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. “Sub-Section (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 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 sub-section (1) of Section 12 shall be attracted? Averting to the facts and circumstances of the present case, the inspection note on the file is important. The R.C.I. made surprise inspection on 15-8-1999 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 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 sub-section (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.” MOHD. INAM v. SANJAY KUMAR SINGHAL & ORS. [B. R. GAVAI, J.]
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, 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 sub-section (1) of Section 12, would be attracted. This Court had further held, that clause (b) of sub-section (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 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 sub-section (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.
31. We find, that the learned single judge of the High Court has also erred in interfering with the well-reasoned order passed by the learned 9 (1995) 1 SCC 537 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. 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 totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 10 (1960) 1 SCR 890 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 SCC 558 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 MOHD. INAM v. SANJAY KUMAR SINGHAL & ORS. [B. R. GAVAI, J.] 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 sub-section (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 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. Kalpana K. Tripathy Appeal allowed.