1985 JTR(SC) 354
1986 AIR(SC) 302 ; 1985 AllCJ 676 ; 1986 AllLJ 84 ; 1985 11 AllLR 769 ; 1985 AWC 903 ; 1986 1 CurCC(SC) 231 ; 1986 4 LCD 235 ; 1986 1 RCJ 123 ; 1986 1 RCR(Rent) 82 ; 1985 2 Scale 891 ; 1985 4 SCC 333 ; 1985 Supp3 SCR 634 ; 1986 1 SLR 36 ; 1986 1 UJ 28 ; 1985 KHC 730
SUPREME COURT OF INDIA
R.S. PATHAK AND RANGANATH MISRA, JJ.
Harbans Lal, Appeallant
Versus
Jagmohan Saran, Respondent.
Civil Appeal No.2866 of 1979
Decided on 10-10-1985.
Act
Referred
:CONSTITUTION OF INDIA : Art.226
UTTAR PRADESH URBAN BUILDINGS REGULATION OF LETTING, RENT AND EVICTION ACT : S.12(1)(b), S.16, S.12
(A) The Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972, read with Sections 12(1)(b) and 16, governs eviction and deemed vacancy in rental accommodations. Here, the statutory scheme contemplates a landlords claim for eviction on the ground that the tenant has ceased occupation or allowed the property to be occupied by a nonfamily member. The proceeding initiated under Section 12 read with Section 16 culminates in an order for deemed vacancy and restoration of the property, subject to judicial review under Article 226 of the Constitution. The High Courts exercise of revisiting factual findings through a writ in the nature of certiorari is constrained by the limited scope of such writ jurisdiction.
(B) A tenant is deemed to have ceased occupation only upon substantial removal of effects or allowing occupation by a person outside the family; agency or deputisation by the tenant does not fall within the mischief of Section 12(1)(b). The writ jurisdiction under Article 226 is not a revisory or appellate forum to reappraise evidence, and a writ in the nature of certiorari lies only for jurisdictional errors, breach of natural justice, or apparent error of law. The burden of proof under rent and eviction proceedings is on the petitioner, and findings of fact by the Prescribed Authority attract deference in the absence of a legally sustainable challenge.
Facts of the case:
The respondent landlord filed a petition under Sections 12 read with Section 16 of the Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972, seeking a declaration that the shop had fallen vacant and should be released, alleging that the appellant tenant had sublet the shop to nonfamily members Yadram and Madan Lal. The Prescribed Authority and the Second Additional District Judge found that Madan Lal was acting as an agent of the appellant in selling vegetables, and the property could not be deemed vacant. The Allahabad High Court, upon a writ petition, held that the shop attracted Section 12(1)(b) and remanded the case for eviction, reappraising the evidence.
Findings of Court:
The Supreme Court set aside the High Courts order, held that the High Court acted outside its jurisdiction by reappraising evidence, and restored the findings of the Prescribed Authority and the Second Additional District Judge that the appellant had not allowed the shop to be occupied by a nonfamily member within the meaning of Section 12(1)(b). The report of the Commissioner was disregarded as it was not a final document before the Prescribed Authority.
Issues:
Whether the shop can be deemed vacant under Section 12(1)(b) where the person in occupation is an agent or servant carrying on the tenants business, and whether the High Court was justified in reappraising factual findings in a writ petition under Article 226.
Ratio Decidendi:
Section 12(1)(b) of the Act requires that the tenant must have allowed the property to be occupied by a person who is not a member of his family; mere agency or deputisation by the tenant does not satisfy this criterion. The High Courts reappraisal of evidence in a certiorari proceeding exceeds the limited jurisdiction under Article 226, and such writs lie only to correct jurisdictional or legal errors, not to substitute factual findings.
Result:
The appeal is allowed, the judgment and order of the Allahabad High Court are set aside, and the order of the Prescribed Authority restoring the property to the tenant is reinstated with costs.
(A) The Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972, read with Sections 12(1)(b) and 16, governs eviction and deemed vacancy in rental accommodations. Here, the statutory scheme contemplates a landlords claim for eviction on the ground that the tenant has ceased occupation or allowed the property to be occupied by a nonfamily member. The proceeding initiated under Section 12 read with Section 16 culminates in an order for deemed vacancy and restoration of the property, subject to judicial review under Article 226 of the Constitution. The High Courts exercise of revisiting factual findings through a writ in the nature of certiorari is constrained by the limited scope of such writ jurisdiction.
(B) A tenant is deemed to have ceased occupation only upon substantial removal of effects or allowing occupation by a person outside the family; agency or deputisation by the tenant does not fall within the mischief of Section 12(1)(b). The writ jurisdiction under Article 226 is not a revisory or appellate forum to reappraise evidence, and a writ in the nature of certiorari lies only for jurisdictional errors, breach of natural justice, or apparent error of law. The burden of proof under rent and eviction proceedings is on the petitioner, and findings of fact by the Prescribed Authority attract deference in the absence of a legally sustainable challenge.
Facts of the case:
The respondent landlord filed a petition under Sections 12 read with Section 16 of the Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972, seeking a declaration that the shop had fallen vacant and should be released, alleging that the appellant tenant had sublet the shop to nonfamily members Yadram and Madan Lal. The Prescribed Authority and the Second Additional District Judge found that Madan Lal was acting as an agent of the appellant in selling vegetables, and the property could not be deemed vacant. The Allahabad High Court, upon a writ petition, held that the shop attracted Section 12(1)(b) and remanded the case for eviction, reappraising the evidence.
Findings of Court:
The Supreme Court set aside the High Courts order, held that the High Court acted outside its jurisdiction by reappraising evidence, and restored the findings of the Prescribed Authority and the Second Additional District Judge that the appellant had not allowed the shop to be occupied by a nonfamily member within the meaning of Section 12(1)(b). The report of the Commissioner was disregarded as it was not a final document before the Prescribed Authority.
Issues:
Whether the shop can be deemed vacant under Section 12(1)(b) where the person in occupation is an agent or servant carrying on the tenants business, and whether the High Court was justified in reappraising factual findings in a writ petition under Article 226.
Ratio Decidendi:
Section 12(1)(b) of the Act requires that the tenant must have allowed the property to be occupied by a person who is not a member of his family; mere agency or deputisation by the tenant does not satisfy this criterion. The High Courts reappraisal of evidence in a certiorari proceeding exceeds the limited jurisdiction under Article 226, and such writs lie only to correct jurisdictional or legal errors, not to substitute factual findings.
Result:
The appeal is allowed, the judgment and order of the Allahabad High Court are set aside, and the order of the Prescribed Authority restoring the property to the tenant is reinstated with costs.
B.P.MAHESHVARI, G.L.SANGHI, LALITA KOHLI, MANOJ SVARUP, SHANKAR GOPAL PAGIRE
JUDGMENT
R.S. 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.
2. 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 appellants family. He claimed a declaration that the shop had fallen vacant and that it should be released to him.
3. The Prescribed Authority made an order dated Oct. 30, 1976, rejecting the respondents petition, on the finding that he had failed to prove that the appellant had sublet 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 Sept. 21, 1977. He affirmed the findings of the Prescribed Authority.
4. The respondent filed a writ petition in the Allahabad High Court, and on Aug. 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 was occupying the shop within the meaning of S. 12(1)(b) of the aforesaid U. P. Act. The High Court also declined to accept the appellants 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 the Prescribed Authority for passing orders on the respondents application for release of the property from allotment.
5. 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 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 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.
6. The next point to consider is whether the shop can be deemed to be vacant within the meaning of S. 12(1)(b) of the U. P. Act. Section 12 provides :-
" 12. Deemed vacancy of building in certain cases. - (1) 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 therefrom, 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 x x
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 set 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 Bai v. District Judge, Mathura (1980) 6 All LR 165 where a Full Bench of the Allahabad High Court held that "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).
7. 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.
8. 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.
Appeal allowed.
For Citation : AIR 1986 SC 302=(1985) 4 SCC 333=1986 U.J. (SC) 28=(1986) 1 Ren. C.J. 123.