NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.446  OF 2009 (Arising out of SLP(C) NO. 550 of 2009)

Anurag Kumar                                                          ……..  Appellant

Versus

Mohan Lal & Anr.                                                  ……..Respondents

O R D E R

1) Leave granted.

2) This appeal is directed against the orders passed by the High Court of

Judicature  at  Allahabad  in  Civil  Miscellaneous  Writ  Petition  No.

47199 of 2007 dated 24.11.2008.  By the impugned order, the court

has allowed the writ petition by quashing the order dated 01.09.2007

passed  by  the  Additional  District  Judge,  Court  No.1,  Meerut  and

further has remanded the matter to the Revisional Authority to pass

fresh order in the light of observations made after affording sufficient

opportunity to the parties.

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3) The appellant is the owner of a Shop No. 570. Budhana Gate, Meerut,

where respondent no.1 is the occupant on monthly rent of RS. 400.

On 23.04.1999, an application was made by respondent no.2 before

the  Rent  Control  and  Eviction  Officer  stating  that  vacancy  be

declared as the respondent no.1 has obtained allotment order by the

appellant by concealing the fact that he is already in occupation of

three other shops.

4) The  Competent  Authority  after  obtaining  a  report  from  the  Rent

Control  Inspector  and after  having heard  the  parties  vide its  order

dated  28.09.2005  has  observed  that  as  the  respondent  no.1  has

obtained the possession of the disputed shop by playing fraud, and

therefore, the allotment of the disputed shop happens to be nullity and

is void, and thus the said shop is liable to be declared vacant.  

5) Neither  the respondent  no.1 nor the appellant  challenged the order

dated  28.09.2005,  thus  it  has  become  final.  Appellant  after

declaration of vacancy made an application for release of the disputed

shop before the Delegated Authority. The Delegated Authority after

considering the genuine and bonafide need of the appellant allowed

the release application in favor of the petitioner under sec. 16 of the

act, vide its order dated 30.11.2005.

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6) Respondent no.1 being aggrieved by the order filed a revision petition

before the  Revisional  Authority on the ground that  no  question  of

release of the disputed shop in favor of appellant arises as the said

shop is  not  vacant  and had  been duly and properly allotted  to  the

respondent  no.1.  However,  respondent  no.1  did  not  challenge  the

order of vacancy. Revisional Authority again went into details of the

case and vide its order dated 01.09.2007, declared that the property in

question was not vacant and was in occupation of the respondent no.1

as a valid allotee and the allotment in favor of respondent no.1 has

not been cancelled in accordance with provisions of law, therefore the

impugned order is liable to be set aside.

7) Being aggrieved by the order dated 01.09.2007, appellant filed a Civil

Misc. Writ Petition before the High Court for quashing the said order

passed by the Revisional Authority.  

8) The  High  Court,  allowed  the  writ  petition  vide  its  order  dated

24.11.2008, quashing the order  passed by the Revisional  Authority

dated  01.09.2007  and  has  remanded  the  matter  to  the  Revisional

Authority to pass an appropriate order, on the ground that Revisional

Authority has failed to  take into consideration the  fact,  that,  if  the

order of vacancy has become final and it has never been challenged

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by aggrieved  person  then  the question  of  allotment  or  question  of

release  in  favour  of  the  landlord  cannot  be  raised  by  the  person

concerned without challenging the order of vacancy unless and until

the premises in dispute is declared vacant by an authority competent

to do that is set aside. Aggrieved by this order the appellant is before

us in this appeal.  

9) The High Court while exercising its discretionary and extraordinary

jurisdiction under Article 226 has remanded the matter back to the

Revisional  Authority  to  pass  an  appropriate  order  with  certain

directions after going into the merits of the case.  

10)The  basic  principle  of  Article  136  is  that  if  a  litigant  feels  that

injustice has been done by a Court or any other body charged with

administration of justice, there is one superior court he may always

approach and which, in its discretion, may give him special leave to

appeal so that justice may be done: (1996) 1 SCJ 786, 803.  

11)It is not possible to define with any precision, the limitations on the

exercise of the discretionary jurisdiction vested in the Supreme Court

by the constitutional provision made in Article 136. The limitations

whatever they be, are implicit in the nature and character of the power

itself. It being an exceptional and over-riding power, naturally, it has

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to  be  exercised  sparingly  and  with  caution  and  in  special  and

extraordinary situations.  

12)It is well settled that though special leave is granted, the discretionary

power which is vested in the Court at the stage of the special leave

petition continues to remain with the Court even at the stage when the

appeal comes up for hearing and when both sides are heard on merits

in the appeal: (1999) 2 SCC 321.

13)In view of above, in our opinion although leave has been granted but

we do not find a need to exercise the discretionary powers under Art.

136.  The matter  has  already been discussed  by various  Authorities

and the same has been remanded back by the High Court and as such

no extraordinary situation arises. It will be proper that the Revisional

Authority decides the matter again.  

14)Therefore without going into the merits of the case, we dismiss the

appeal.  However, we reserve liberty to the appellant to raise all such

contentions which are available to him including certain contentions

raised in this appeal before the Revisional Authority.  We direct the

Revisional  Authority  to  adjudicate  upon  the  matter  independently

untrammeled by the observations and orders made by the High Court.  

15)The appeal is dismissed accordingly.  No order as to costs.

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                                                                                 …………………………………J.                                                                                    [ TARUN CHATTERJEE ]

                                                                                 …………………………………J.                                                                                    [ H.L. DATTU ]

New Delhi, January 27, 2009.

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