http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 30  

                                           REPORTABLE

          IN THE SUPREME COURT OF INDIA            CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL NO.7238 OF 2005

R.K.Shukla                                  ...Appellant

VERSUS

Sudhrist Narain Anand (Dead) by L.Rs.                        ...Respondent

                 J U D G M E N T

TARUN CHATTERJEE,J.

1.   One      Parsuram      Pandey      filed           an

    application for allotment of a part of

    House    No.21,     George   Town,       Hamilton

    Road, Allahabad, U.P. (in short "the

    disputed premises") which had allegedly

    fallen    vacant.    There      were     in   all,

    thirteen applications for allotment of

    the     disputed     premises     by      various

                                                   1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 30  

persons       before         the    Rent     Control        &

Eviction Officer (in short "the RC &

EO").        On     the    said      application           of

Parsuram Pandey for allotment of the

disputed premises, an order was passed

by the RC & EO on 9th of September, 1980

directing          the    Rent     Control    Inspector

(in    short       "the    RCI")     to    inquire     and

report on the issue of vacancy of the

said disputed premises. Consequent to

the order dated            9th of September, 1980,

the RCI, after inspecting the disputed

premises, submitted his report to the

RC & EO regarding vacancy. Thereafter,

the RC & EO on 18th of September, 1980

passed an order issuing notice to the

landlord/respondent calling upon him to

appear       on     6th   of     October,     1980     and

directed that the matter of allotment

of     the        disputed       premises     would        be

considered on that date. Notices dated

15th    of        November,        1980    and   1st       of

                                                      2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 30  

     December, 1980 were again issued to the

     respondent for the aforesaid purpose.

     On 3rd of January, 1981, the respondent

     was directed to appear before the RC &

     EO and accordingly, the respondent did

     appear before the RC & EO but no other

     person was present there. The RC & EO

     noted the presence of the respondent

     and passed the following order: -

     "Today   the  file  was  placed  in       presence of the landlord. None else       was present."

2.    The     RC       &     EO    passed     an    order        dated

24th of January, 1981, on the question of

vacancy and also directed the matter to be

put     up     on          31st   of      January,        1981    for

arguments on allotment and orders. It was

the    case       of       the    respondent        that    by    the

aforesaid          order          dated     24th    of     January,

1981,        he     came          to   know        that     certain

applications were filed before the RC & EO

                                                                 3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 30  

for   allotment         of    the       disputed     premises

although he along with his family members

was     very     much      living       in    the    disputed

premises       and    there       was    no   occasion      for

anyone      to       make        any     application        for

allotment. Accordingly, the respondent had

brought to the notice of the RC & EO that

he was occupying the disputed premises and

the question of allotment of the disputed

premises to anyone else could not arise at

all. Therefore, all the applications for

grant     of      allotment            of     the    disputed

premises       must     be    dismissed.        It   was    all

along the case of the respondent that he

had filed his objections with regard to

the matter of allotment of the disputed

premises on 24th of January, 1981 to the

extent    that       the     disputed        premises     which

was     occupied           and     possessed         by     the

respondent was No. 21, Hamilton Road and

not   No.      21,    Georgetown,           Allahabad,     with

which the respondent had no concern and

                                                          4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 30  

the     allotment              applications,        if     they

related         to    No.        21,    Hamilton         Road,

Allahabad were liable to be rejected as no

part of the same was lying vacant. At this

stage, it would not be out of place to

mention that the notice received by the

respondent was not indicative of the fact

that    the     question          of   allotment      of    the

disputed premises would be considered on

3rd of January, 1981. It was also all along

the case of the respondent that the notice

was served on him at his address although

the notice mentioned the address of the

respondent           as        103,    Chowk        Gangadas,

Allahabad and on the back of the notice,

there was the process server’s report that

the    respondent         was     residing     at    No.    21,

Hamilton        Road,          Georgetown,      Allahabad.

According        to       the      respondent,        without

considering the objections filed by him,

the    RC   &    EO       on    24th   of   January,       1981

declared the vacancy particularly when the

                                                          5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 30  

respondent himself had appeared before the

RC     &    EO     specifically      bringing         to    his

notice that he was in physical occupation

of the disputed premises and nothing was

vacant which could be said to be available

for allotment. It was also the case of the

respondent         that     the     RC     &    EO     without

considering         the     objection       filed      by   him

passed       the    order    dated       24th   of    January,

1981       declaring      vacancy    in     the      following

manner: -

           "The file was put up. The report        of RCI seen. On the spot the house was        locked. No body was living. At the main        gate a Board of Shri Prasidh Narain        Anand was there. Landlord has appeared.        He has made no objection. It is clear        that the disputed portion, which is        western portion of the house is vacant        because there is no objection from Sri        S.N.Anand,   hence  vacancy   is   being        notified. To be put up on 31st January        for argument on allotment and orders."

                                                           6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 30  

3.     A bare perusal of the aforesaid order

of the RC & EO passed on 24th of January,

1981    would    make     it    clear      that   the     said

order was passed without considering the

objection of the respondent and by even

mentioning       that     the       respondent      had       no

objection when it was all through his case

that the objections were submitted before

the    RC   &    EO.    It     is    also    an     admitted

position that the alleged report of the

RCI    would     only    show       that    the     disputed

premises        was     locked      at      the   time        of

inspection and it did not indicate that no

body was residing there. Therefore, it was

the case of the respondent that the fact

that    the     disputed        premises      was     locked

cannot by any stretch of imagination mean

that no body was residing in the disputed

premises entitling the RC & EO to declare

the same vacant for allotment.

                                                         7

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 30  

4. On 20th of April, 1981, the respondent

was heard and he was given time to file

evidence. Thereafter, on 3rd of June, 1981,

an   order         was     passed    directing        the

respondent to file evidence on that very

date and the case was adjourned to 3rd of

July, 1981 for arguments on vacancy. On

26th of September, 1981, the respondent and

the applicants were present and were heard

and on 18th of November, 1981, the RC & EO

passed an order of allotment in favour of

the appellant. Against the aforesaid order

of   allotment,          the   respondent     filed       a

revision petition under Section 18 of the

Uttar Pradesh Urban Buildings (Regulation

of letting, Rent and Eviction) Act, 1972

before       the   District      Judge,      Allahabad,

which    was,      however,    dismissed      by    order

dated 4th of March, 1982. Feeling aggrieved

by the allotment order and the dismissal

of the revision petition, the respondent

filed    a    writ   petition       before    the    High

                                                     8

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 30  

Court of Judicature at Allahabad wherein a

challenge was made to the allotment order

and    a   prayer        was     made    for     quashing     the

same. By a judgment and order dated 9th of

November, 2004, the High Court had allowed

the    writ       petition       thereby        setting      aside

the    order        dated      18th     of    November,       1981

passed      by      the     RC     &    EO     allotting      the

disputed          premises         in        favour     of    the

appellant and the order dated 4th of March,

1982       passed         by     the         District     Judge,

Allahabad dismissing the revision directed

against       the    said        allotment       order.        The

High Court in the impugned judgment had

also considered the validity of the order

dated      24th     of     January,          1981,    declaring

vacancy passed by the RC & EO and held the

same to be invalid. It is this judgment of

the High Court, which is impugned in this

appeal.

                                                             9

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 30  

5. We have heard the learned counsel for

the parties and examined the judgment of

the High Court and the District judge as

well as the order of allotment passed by

the     RC      &     EO    and    the   order    declaring

vacancy         and    other       materials     on   record.

Before we consider the rival submissions

made on behalf of the parties, we may, at

this      stage,       record      the   findings     of    the

High          Court        while    allowing      the      writ

petition which are as follows :

      (i)          The report of RCI had only shown                     that the main gate of the                     disputed premises was locked and                     that if found appropriate, it                     was the duty of the RC & EO to                     call the parties to ascertain                     the correct position. This by                     itself   did   not    amount  to                     vacancy. There was nothing in                     the report to show that there                     was vacancy in the house of the                     premises in question.        (ii)         The order dated 24th of January,                     1981 declaring vacancy did not                     show that on that date, either                     the landlord or any applicant                     was present.        (iii)        It was not clear from the order                     sheet as to whether the RCI had                     inspected the disputed premises                     and submitted his report on the                     direction of the RC & EO.

                                                          10

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 30  

(iv)   The RCI report, the order sheet        and any other document did not        show that any notice was given        to     the    landlord     before        inspection by the RCI or that he        was made aware of the RCI        Report. (v)    No order directing the landlord        to    file   objection    against        vacancy was passed. (vi)   In view of sub-rule (3) of Rule        9 of the Rules framed under the        U.P.Act No. 13 of 1972 and the        case reported in Yogendra Tiwari        Vs. D.J. Gorakhpur AIR 1984 SC        1149, it was essential to issue        notice to the landlord so that        he     could     file     release        application if he so desired. (vii)  From the orders dated 20.4.1981,        3.7.1981 and 7.8.1981 on the        order sheet, it would be clear        that the RC & EO had heard the        question of vacancy again. (viii) The landlord did not file any        copy of the release order of        1952. (ix)   Against    the     order    dated        24.1.1981,   declaring   vacancy,        although no challenge was made        independently but the same was        challenged by an application for        amendment subsequently filed. (x)    The vacancy declaration order        was bad in law for the following        reasons : (a) Inspection was        made by the RCI without notice        to the landlord. (b) there was        no material or evidence which        could justify declaration of        vacancy. The RCI Report, even if        it was correct, did not disclose        existence    of   vacancy;    (c)        Vacancy was declared without        issuing notice to the landlord.        (d) Vacancy declaration order

                                          11

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 30  

            was reconsidered by the RC & EO              but no fresh order declaring or              holding vacancy was passed by              the RC & EO.      (xi)    The   allotment   order  was   in              violation of Section 16(9) of              the Act inasmuch as while making              the     allotment   order,    the              allottee was not required to pay              to     the    landlord    advance              presumptive rent of one month.

6.   On the aforesaid findings arrived at

by the High Court, the writ petition was

allowed. Before we proceed further, we may

also record the findings arrived at by the

revisional court which are as follows :-

    (i)     Subsequent to the receipt of              the Rent Control Inspector, a              notice was formally sent to the              landlord    who    had   put  in              appearance on 3.1.1981 but he              did not file any objection nor              had sought time for filing              objection.      (ii)    There was no objection filed by              the landlord as to the vacancy              before passing the order dated              24.1.1981.      (iii)   The finding of the RC & EO that              the building in dispute was              vacant was a finding of fact              not vitiated by any error of              jurisdiction.      (iv)    There was ample evidence on              record   to     show   that  the              landlord was residing at 103,              Chowk Gangadas, Allahabad and

                                                12

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 30  

             the     disputed     premises    was               vacant.     The     name    of   the               landlord had been entered in               the electoral roll consistently               from the year 1966 to year               1980.      (v)      The affidavit of Smt. Prabha               Shukla, wife of the appellant               to the effect that the disputed               premises      was    let    out   to               different university students               was not contradicted by the               landlord.      (vi)        All    the    persons   who   had               applied     for     allotment    had               alleged     that     the    disputed               premises      was     formerly    in               occupation of one Sri S.K.Misra               but    even    in    the   objection               purported to have been filed on               24.1.1981,       there     was    no               averment that the building in               dispute was not occupied by               S.K.Misra or any other person.

    These were the findings made by the

revisional        court   while     rejecting         the

revision petition filed by the respondent.

7. Keeping in mind the findings arrived at

by   the    revisional     court     and   the       High

Court,      let     us    now     deal     with      the

submissions of the learned counsel for the

parties.

                                                    13

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 30  

8.     The   learned       senior        counsel      for     the

appellant         Mr.    Gupta        submitted    before      us

that the High Court was not justified in

interfering with the order dated 24th of

January,      1981       declaring        vacancy,       in   the

exercise      of    its        writ    jurisdiction       under

Article 226 of the Constitution. In this

context, it was brought to our notice that

during the pendency of the writ petition

before       the        High     Court,       after      almost

20 years, on            18th    of February,        2002,      an

application praying for amendment of the

writ    petition         for     challenging       the    order

dated 24th of January, 1981 by which the

vacancy was declared was filed, which was

allowed      by    the    High        Court   by   its    order

dated 22nd of May, 2002. Against this order

of the High Court, the appellant had filed

an   application          for     recall      of   the        said

order but the same was also rejected by

the High Court by its order dated 14th of

                                                             14

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 30  

February, 2003. Aggrieved by the orders of

the High Court, the appellant had filed a

special leave petition before this court

challenging   the   aforesaid    orders.      This

court   had   allowed    the    special    leave

petition by setting aside the orders dated

22nd of May, 2002 and 14th of February, 2003

in the following manner: -

   "On going through the materials on     record and keeping in view the limited     notice we ordered when the special     leave petition initially came up for     orders relating to admission, the fact     that has to be kept into consideration     is not even so much as is to what     really transpired on that day in court     but how best the situation should be     solved and the interests of justice     could be served. On that view of the     matter, we are fully satisfied that the     orders   of   the   High  Court   under     challenge are to be set aside and     convinced that the interest of justice     can be better served only if the orders     dated 22.5.2002 and 14.02.2003 are set     aside and the Civil Misc. Writ Petition     No. 4621 of 1982 is restored to its     file to be disposed of afresh on merits     and in accordance with law, after     hearing both the parties and giving     them due opportunity.     Having regard to the further fact that     the writ petition is of the year 1982,     in the interest of justice and in order     to avoid any further delay, the High     Court may ensure the disposal of the     matter as expeditiously as possible,

                                             15

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 30  

      atleast within three months from the        date of receipt of a copy of this        order.        The appeals are disposed of on the        above terms. No costs."

9.     The    learned       senior       counsel       for    the

appellant Mr. Gupta, therefore, sought to

argue    before       us     that    by       virtue    of    the

order        passed     by     this           court     in    the

aforesaid special leave petition, setting

aside the aforementioned two orders of the

High    Court,        the    fact        of     existence      of

vacancy had attained finality. The learned

senior counsel thus submitted that it was

not open to the High Court to adjudicate

upon    the    question       of     vacancy          after   the

decision of this court and also in view of

the concurrent findings of fact of the RC

& EO and the revisional court. The learned

senior counsel for the appellant Mr. Gupta

also sought to argue that it was not open

to     the    High     Court        to    reconsider          the

question of vacancy which had been fully

                                                             16

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 30  

answered by the RC & EO and affirmed by

the     revisional     court      in     view     of     the

decision of this court in Ganpat Roy and

others Vs. A.D.M. and others [(1985) 2 SCC

307],    and   that    the   High       Court     was   not

justified in not following the dictum of

Ganpat Roy’s case merely because it had

been referred to a larger bench.

10. These        submissions       of     the     learned

senior     counsel     for   the        appellant       were

hotly     contested     by   the        learned     senior

counsel     appearing        on    behalf         of    the

respondent.

11.      After        considering          the         rival

submissions of the parties, we may note

that the question whether the respondent

was given sufficient opportunity to object

and lead evidence to disprove the fact of

vacancy    was    taken   into     consideration         by

the High Court and from the materials on

                                                       17

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 30  

record    and      the    evidence        adduced    by    the

parties, it was open to the High Court,

even in the exercise of its power under

Article       226/227     of    the      Constitution,      to

come     to    a   finding          of    fact    that    such

opportunity was not at all given to the

respondent.        Even       assuming     that    the    High

Court was wrong in coming to a conclusion

of fact that no opportunity was given to

the    respondent        to    file      objections,      then

also,    we    are   not       inclined      to    interfere

with the judgment of the High Court in the

exercise of our discretionary power under

Article 136 of the Constitution for the

reasons stated hereinafter.

12. First, the finding of the High Court,

as noted herein earlier, in clause (vii)

viz., that from the orders dated 20th of

April 1981, 3rd of July, 1981 and 7th of

August, 1981 on the order sheet, it was

clear    that      the    RC    &    EO    had    heard    the

                                                         18

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 30  

question of vacancy again is very crucial.

Having done so, it was imperative that the

RC&EO should have passed a fresh order to

the effect whether the disputed premises

was vacant or not. However, in a rather

peculiar      and   strange      manner,        the    RC&EO

proceeded and fixed a date for passing of

the allotment order on the basis of the

order dated 24th of January, 1981. We may

note    at   this      stage   that       the   provisions

regarding      allotment       of    vacant     buildings

are governed by Sections 12, 16 and 34(8)

of the U.P. Urban Buildings (Regulation of

Letting, Rent and Eviction) Act, 1972 (in

short    "the    Act")     and      the    rules      framed

under   the     said    Act.   The    passing         of   the

allotment order without declaring vacancy

was a gross error committed by the RC&EO

because under the scheme of the provisions

of the act, the preliminary step was to

declare a vacancy, which, in our view, was

not done and even if done, the same was

                                                          19

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 30  

not in a bonafide manner. The RC&EO should

have at least conveyed their decision on

that point.

13. Secondly, the RCI and the RC&EO while

submitting      the    report       and        passing    the

order   declaring      vacancy         respectively       did

not adhere to the provisions governing the

allotment       of      vacant          buildings,         as

enumerated      herein      above.        We     find    from

record that no neighbour was enquired to

ascertain       vacancy,           much         less      two

neighbours as mandated by the rules.

14. Thirdly, the finding of the High Court

that simply because the gate was locked,

it   was   no   ground      to    conclude        that    the

disputed    premises        was    vacant        cannot    be

ignored.    The      learned      senior       counsel    for

the appellant contended that in this case,

a    deemed       vacancy        had      occurred        and

ingredients of Section 12 of the Act which

                                                         20

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 30  

deals     with       Deemed    vacancy       of     buildings

were satisfied. As rightly pointed out by

the High Court in the impugned judgment,

the fact that the gate was locked cannot

be   a   conclusive         proof    to    hold     that      the

respondent had removed his effects there

from     or    that    he     had   allowed        it    to    be

occupied       by     any   person        who     was    not       a

member of his family or even that he and

members        of     his     family       had     taken       up

residence        elsewhere.         In     our     view,      the

question of deemed vacancy cannot arise at

all in view of the facts, which would be

evidenced from the order of the RC & EO

and the report of the RCI. From the said

order of the RC & EO, it does not appear

that     the        respondent       had     substantially

removed       his     effects       from     the     disputed

premises. As stated hereinabove, the fact

of the gate being locked and the absence

of   the      respondent       at    the     time       of    the

inspection would not mean that substantial

                                                             21

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 30  

removal of effects of the respondent had

been made. In view of our discussions made

hereinabove, we are not of the view that

any    deemed    vacancy       had    occurred        and    on

this      ground,    we      are     not      inclined       to

interfere with the judgment of the High

Court.

15. As regards the objection raised by the

learned senior counsel for the appellant

to the effect that the High Court should

have followed the dictum in Ganpat Roy’s

case (Supra) the same is not acceptable.

At that time, the matter was referred to a

larger bench. The decision was, therefore,

debatable and not conclusive.                  But now all

doubts     regarding         the     dictum     in    Ganpat

Roy’s case [supra] have been set at rest

by    a   decision      of    this     court     in    Achal

Mishra     Vs.   Rama     Shanker      Singh     and     ors.

                                                           22

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 30  

[(2005) 5 SCC 531], wherein this court in

Para 14 observed as under: -

   "It is thus clear that an order     notifying a vacancy which leads to     the final order of allotment can     be challenged in a proceeding     taken   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. Hence, in a revision     against    the     final    order    of     allotment which is provided for by     the Act, the order notifying the     vacancy could be challenged. The     decision in Ganpat Roy case which     has disapproved the ratio of the     decision in Tirlok Singh and Co.     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     notifying of vacancy itself, in a     revision against the final order     of    allotment.      It    has    only     clarified that even the order     notifying the vacancy could be     immediately      and     independently     challenged. The High Court, in our     view, has misunderstood the effect     of the decision of this court in     Ganpat Roy case and has not kept     in mind the general principles of     law governing such a question as     expounded by the Privy Council and     by this court. It is nobody’s case

                                             23

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 30  

      that there is anything 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. We overrule        the view taken by the Allahabad        High court in the present case and        in Kunj Lata V. Xth ADJ, that in a        revision against the final order,        the order notifying the vacancy        could not be challenged and that        the   failure    to    independently        challenge the order notifying the        vacancy     would     preclude     a        successful    challenge     to   the        allotment order itself. 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 the statutory challenge        after a final order of allotment        has been made and if he is        aggrieved   even    thereafter,   to        approach the High Court. It would        really be a case of election of        remedies."

16. In the present case, the High Court

had permitted the respondent to amend the

writ     petition   whereby    he   sought     to

                                             24

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 30  

challenge the order dated 24th of January,

1981 declaring vacancy. Such order of the

High     Court      allowing        the     amendment        was

challenged       before       this        court      and    this

court had remanded the matter to the High

Court setting aside such order requesting

the High Court to decide the writ petition

afresh. Since this Court had remanded the

matter    to     the      High   Court       for      a    fresh

decision       on     the     question          whether      the

amendment should be allowed or not along

with the merits of the writ petition, it

cannot be said that the High Court was in

error    after      the     order    of    this      court    to

allow    the     application         for     amendment        on

facts    as    this    court     did      not     decide     the

merits as to whether the application for

amendment      should       be   allowed        or    not.    We

have     already       quoted        hereinearlier           the

substantial portion of the order of this

court in that special leave petition and

from the same, it is clear that it was

                                                            25

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 30  

passed without going into the merits of

the   orders     allowing        the    application    for

amendment of the writ petition and this

court had simply set aside the said orders

of the High Court remanding the matter to

the High Court for disposal of the same

afresh and in accordance with law after

hearing both the parties and after giving

them due opportunity. The High Court by

the impugned judgment had simply followed

the directions made by this court in the

order     passed       in    that        special     leave

petition,      as    quoted       hereinearlier,        and

came to a conclusion that the order dated

24th of January, 1981 declaring vacancy was

bad in law. That apart, it is clear from

the     decision      of    this       court    in    Achal

Mishra’s case [supra] that it was open to

the     respondent     to     challenge        the    order

declaring      vacancy      in    the    writ    petition

against    the      allotment      order     even    though

the     said     order      was        not     challenged

                                                      26

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 30  

independently        there    and     then.        Therefore,

the    High    Court    was       fully       justified       in

considering      the    validity         of    the    vacancy

declaration order while hearing the writ

petition against the allotment order. In

view of our discussions made hereinabove,

we are, therefore, of the view that since

this court had not decided that special

leave    petition      on    merits,       it      cannot     be

said    that   the     vacancy       declaration           order

had attained finality. Therefore, the High

Court was fully justified in considering

the question of vacancy, which was a core

issue in the writ petition because if the

vacancy declaration itself was bad in law,

the consequent allotment order which was

passed    cannot       be     said    to        be    not    in

violation of Section 16 of the Act. In any

view of the matter, the question regarding

vacancy    was    a    core       issue       in     the    writ

petition and in our view, the High Court,

on     consideration         of    the        materials       on

                                                           27

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 30  

record   was     entitled     to     look   into   it    by

invoking        its    writ    jurisdiction        under

Article 226 of the Constitution. Since the

order passed by the High Court was based

on consideration of facts, which cannot be

interfered       with    except       in     exceptional

cases,     we    do    not    find    any     reason     to

interfere with the same under Article 136

of the Constitution of India.

17. There is another aspect of this matter

for which, in the facts and circumstances

of this case, we would not exercise our

discretionary power under Article 136 of

the Constitution. The vacancy declaration

order    and     the    consequent         allotment     in

favour of the appellant was made in the

manner   indicated       herein      earlier    and     the

appellant        stormed      into      the     disputed

premises more than two decades back and

started enjoying the same without paying a

single penny in respect of the same. It

                                                       28

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 30  

was only after the judgment of the High

Court that he had deposited the amount as

directed by the High Court. Therefore, we

do not find any reason to interfere with

the impugned judgment of the High Court

under Article 136 of the Constitution in

the facts and circumstances of the present

case.

18. For the foregoing reasons, we do not

find any merit in this appeal. The appeal

is thus dismissed. There will be no order

as to costs. The appellant is, however,

granted   time   to   vacate         the            disputed

premises by 30th of November, 2008 subject

to filing an usual undertaking before this

court within one month from this date.

                              ..........................................J.                                            [A.K.MATHUR]

                                                                29

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 30  

New Delhi;     .............................................J. May 12,2008   [TARUN CHATTERJEE]

                                                 30