HARBANS LAL versus JAGMOHAN SARAN

PAillAK, J; : This appeal by ·speciai 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.

p. 635, margin G

The respondent is the landlord and the appellant is the tenant of a shop in Mohalla Nan Panjan, Khurja in the district of llulandshahr. 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 accollillodation 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.

p. 636

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. 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.

p. 636, margin B

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.

p. 636, margin D

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 before the High Court prayed for a writ in the certiorari, and it is well known that a writ in the certiorari may be issued only if the order of the inferior bunal or subordinate court suffers from an error of jurisdiction, or from a breach of the principles of natural justice vitiated by a manifest or apparent error of law. There sanction enabling the High Court to reappraise the . without sufficient reason in law and reach findings of contrary to those rendered by an inferior court or court. When a High Court proceeds to do so, it acts excess of its powers. We are informed that a report Collllllissioner in another suit was not considered by the Authority and by the learned Second Additional District and therefore, it is urged, the High Court was- justified taking that report into consideration and entering examination of the material on the record. We have examined report of the Collllllissioner and we find that an objection filed to that report and the trial Court had failed to of. In other words, the report of the Collllllissioner is document and cannot be taken into consideration as it must, therefore, be ignored. That being so, the finding of rendered by the Prescribed Authority and affirmed by Second Additional District Judge remains undisturbed. is that Madan Lal sat in the shop conducting the selling business on behalf of the appellant.

pp. 636–637, margin F

The next point to consider is whether the shop can deemed to be vacant within the meaning of s. 12 (l)(b) U.P. Act. Section 12 provides :- "12. Deemed vacancy of building in certain A landlord or tl!nant of a building shall be have ceased to occupy the building or a part if - (a) he has substantially removed his effects from, or (b) he has allowed it to be occupied by any person is not a member of his family, or (c) in the case of a residential building, as members of his family have taken up residence, being temporary residence, elsewhere. 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 (l){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 ss the agent of the tenant. If the contrary conatruction 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• l2{l)(b), it would be impossible for the original occupant to engage any person to

pp. 637–638, margin E

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 I 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 Sat. le8bar Bai District Judge, llatbura 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 •· 12 {l){b) where a person other than a family member wee found in the occupation of a building. It does not appear that the learned Judges speci-

p. 638

fically considered the full significance and scope of the expression "occupied" ins. l2{l)(b). 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 accOlllllOdation to be occupied within the meaning of l2(l){b).

p. 638, margin C

In our judgment, the High Court is wrong in holding that the case attracts the provisions of s. l2{l)(b) of the U.P. Act.

p. 638, margin E

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.

p. 638, margin E

Appeal allowed.

p. 638, margin E