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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

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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

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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

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         (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