PETITIONER:
HARBANS LAL
Vs.
RESPONDENT:
JAGMOHAN SARAN
DATE OF JUDGMENT10/10/1985
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
MISRA RANGNATH
CITATION:
1986 AIR 302 1985 SCR Supl. (3) 634
1985 SCC (4) 333 1985 SCALE (2)891
CITATOR INFO :
R 1987 SC 117 (19,20)
ACT:
Constitution of India, Article 226 - Writ of certiorari
When can be issued - Power of High Court to reappraise the
evidence - When arises.
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972, s. 12 (1) (b) - Agent carrying on
business in the building on behalf of the original tenant -
Tenant Whether deemed to have ceased to occupy the building.
HEADNOTE:
The respondent-landlord filed a petition under 8- 12
read with 8- 16 of the U-P- Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 against the appellant-
tenant in respect of a shop situated in the district Of
Bulandshahr. He claimed a declaration that the shop had
fallen vacant and that it should be released to him on the
ground that the appellant-tenant had sub-let the shop to one
Yadram and had allowed it to be occupied by Yadram and his
son Madan Lal, neither of whom was a member of the
appellant's family. The prescribed Authority dismissed the
respondent's petition, holding (i) that the respondent had
failed to prove that the appellant had sub-let the shop and
that it could be deemed to be vacant; and (ii) that the
appellant had established that he was conducting his
business of selling vegetables in the shop and that Madan
Lal sat in on his behalf. An appeal by the respondent was
also dismissed by the Second Additional District Judge,
Bulandshahr. However, the High Court in a Writ Petition
filed by the respondent, remanded the case to the prescribed
Authority for passing orders on the respondent's application
for release of the property from allotment on the ground
that the appellant had been unable to establish any legal
relationship of agency between himself and Madan Lal or
Yadram and therefore it must be taken that it was Madan Lal
who was occupying the shop within the meaning of S. 12
(l)(b) of the U.P. Act.
Allowing the appeal to this Court,
635
^
HELD: 1. It is well known that a writ in the nature of
certiorari may be issued only if the order of the inferior
tribunal or subordinate court suffers from an error of
jurisdiction or from a breach of the principles of natural
justice or is vitiated by a manifest or apparent error of
law. There is no sanction enabling the High Court to
reappraise the evidence without sufficient reason in law and
reach findings of fact contrary to those rendered by an
inferior court or subordinate court. When a High Court
proceeds to do so, it acts plainly in excess of its powers.
[637 A-C]
In the instant case, the finding is that Madan Lal sat
in the shop conducting the vegetable selling business on
behalf of the appellant. The findings of fact by both
authorities rested-on evidence, and there was no warrant for
disturbing that finding of fact in a writ petition. [636 G-
H]
2. Under s. 12(1)(b) of the U.P. Act a tenant of a
building is deemed to have ceased to occupy the building if
he has allowed it to be occupied by any person who is not a
member of his family. The occupation of a person envisaged
here cannot possibly include the occupation by any person as
the agent of the tenant. When a person sits in the premises
and carries on a business on behalf of and for the original
occupant, it cannot be said that the original occupant has
thereby allowed the accommodation to be occupied within the
meaning of s. 12 (l)(b). [638 B-F]
Smt. Keshar Bai v. District Judge, Mathura and Ors.,
[1980]6 A.L.R. 165 referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2866 of
1979.
From the Judgment and Order dated 1.8.1979 of the
Allahabad High Court in Civil Writ Petition No. 1942 of
1977.
Shankar Ghosh and B.P. Maheshwari for the Appellant.
G.L. Sanghi, Mr. Manoj Swarup and Ms. Lalita Kohli for
the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. : This appeal by special leave is directed
against the judgment of the Allahabad High Court allowing
the respondents writ petition on the finding that the
accommodation let out to the appellant must be deemed to be
vacant.
636
The respondent is the landlord and the appellant is the
tenant of a shop in Mohalla Nan Panjan, Khurja in the
district of Bulandshahr. The respondent filed a petition
under s. 12 read with s. 16 of the U.P. Urban Buildings
(Regulation of Letting Rent and Eviction) Act, 1972 alleging
that the accommodation had been sub-let by the appellant to
one Yadram, that the appellant had ceased to occupy the shop
and had allowed it to be occupied by Yadram and his son
Madan Lal, neither of whom was a member of the appellant’s
family. He claimed a declaration that the shop had fallen
vacant and that it should be released to him.
The Prescribed Authority made an order dated October
30, 1976 rejecting the respondent’s petition, on the finding
that he had failed to prove that the appellant had sub-let
the shop and that it could be deemed to be vacant. He found
that the appellant had established that he was conducting
his business of selling vegetables in the shop and that
Madan Lal sat in on his behalf. An appeal by the respondent
was dismissed by the learned Second Additional District
Judge, Bulandshahr by his order dated September 21, 1977. He
affirmed the findings of the Prescribed Authority.
The respondent filed a writ petition in the Allahabad
High Court, and on August 1, 1979 a learned Single Judge of
the High Court held that the appellant had been unable to
establish any legal relationship of agency between himself
and Madan Lal or Yadram and therefore it must be taken that
it was Madan Lal who occupying the shop within the meaning
of s. 12 (l)(b) of the aforesaid U.P. Act. The High Court
also declined to accept the appellant’s case that the
appellant was carrying on the business of selling vegetables
when he was already carrying on a brick kiln business and
had a cold storage. Holding that the property must be deemed
to be vacant it remanded the case to be Prescribed Authority
for passing orders on the respondent’s application for
release of the property from allotment.
We are satisfied that the High Court travelled outside
its jurisdiction in embarking upon a reappraisal of the
evidence. The Prescribed Authority as well as the learned
Second Additional District Judge concurrently found that
Madan Lal was sitting in the shop on behalf of the appellant
and deputising for him in carrying on the vegetable selling
business. The findings by both authorities rested on
evidence, and there was no warrant for disturbing that
finding of fact in a writ petition. The limitations on the
jurisdiction of the High Court under Article
637
226 of the Constitution are well settled. The writ petition
before the High Court prayed for a writ in the nature of
certiorari, and it is well known that a writ in the nature
of certiorari may be issued only if the order of the
inferior tribunal or subordinate court suffers from an error
of jurisdiction, or from a breach of the principles of
natural Justice or is vitiated by a manifest or apparent
error of law. There is no sanction enabling the High Court
to reappraise the evidence without sufficient reason in law
and reach findings of fact contrary to those rendered by an
inferior court or subordinate court. When a High Court
proceeds to do so, it acts plainly in excess of its powers.
We are informed that a report of the Commissioner in another
suit was not considered by the Prescribed Authority and by
the learned Second Additional District Judge, and therefore,
it is urged, the High Court was justified in taking that
report into consideration and entering into an examination
of the material on the record. We have examined the report
of the Commissioner and we find that an objection had been
filed to that report and the trial Court had failed to
dispose it of. In other words, the report of the
Commissioner is not a final document and cannot be taken
into consideration as it stands. It must, therefore, be
ignored. That being so, the finding of fact rendered by the
Prescribed Authority and affirmed by the learned Second
Additional District Judge remains undisturbed. The finding
is that Madan Lal sat in the shop conducting the vegetable
selling business on behalf of the appellant.
The next point to consider is whether the shop can be
deemed to be vacant within the meaning of s. 12 (l)(b) of
the U.P. Act. Section 12 provides :-
“12. Deemed vacancy of building in certain cases –
(l) A landlord or tenant of a building shall be
deemed to have ceased to occupy the building or a
part thereof if –
(a) he has substantially removed his effects there
from, or
(b) he has allowed it to be occupied by any person
who is not a member of his family, or
(c) in the case of a residential building, he as
well as members of his family have taken up
residence, not being temporary residence,
elsewhere.
x x x x x x x x x”
638
The deemed vacancy of a building is relevant for the
regulation of letting such a building. A building which
falls vacant is available for allotment under s.16 of the
Act to a tenant. Under s. 12 (1)(b), with which we are
concerned here, a tenant of a building is deemed to have
ceased to occupy the building if he has allowed it to be
occupied by any person who is not a member of his family.
The occupation of a person envisaged here cannot possibly
include the occupation by any person as the agent of the
tenant. If the contrary construction is accepted, and it is
held that a person who is a mere agent or servant of the
original occupant falls within the contemplation of s.
12(1)(b), it would be impossible for the original occupant
to engage any person to assist him in the discharge of his
responsibilities in the place where he does so. It cannot be
conceived that the U.P. Legislature intended a person,
occupying a building as a tenant, to live or operate in such
a building with members of his family and no one else. In
the present case, Madan Lal sat in the shop conducting the
vegetable business on behalf of the appellant. When he did
so, it must be considered as an occupation by the appellant.
Our attention has been drawn to Smt. Keshar Bal v. District
Judge, Mathura and Ors., [1980] 6 A.L.R. 165, where a Full
Bench of the Allahabad High Court held that a “deemed
vacancy” would arise within the meaning of s. 12 (1)(b)
where a person other than a family member was found in the
occupation of a building. It does not appear that the
learned Judges specifically considered the full significance
and scope of the expression “occupied” in s. 12(1)(b). We
are of opinion that when a person sits in the premises and
carries on a business on behalf of and for the original
occupant, it cannot be said that the original occupant has
thereby allowed the accommodation to be occupied within the
meaning of s. 12(1)(b).
In our judgment, the High Court is wrong in holding
that the case attracts the provisions of s. 12(1)(b) of the
U.P. Act.
Upon the aforesaid considerations, we set aside the
judgment and order of the High Court and restore that of the
Prescribed Authority and the learned Second Additional
District Judge. The appeal is allowed with costs.
M.L.A. Appeal allowed.
639
