ACHAL MISRA versus RAMA SHANKER SINGH AND ORS.

Citation: [2005] 3 S.C.R. 439 · Decided: 11-04-2005 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

ACHAL MISRA 
v. 
RAMA SHANKER SINGH AND ORS. 
APRIL 11, 2005 
[R.C. LAHOTI, CJ., D.M. DHARMADHIKARI AND 
P.K. BALASUBRAMANYAN, JJ.] 
Rent Control and Eviction : 
A 
B 
Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) C 
Act, 1972/Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and 
Eviction) Rules, 1972-Section 12/Rules 8(2) and 9(3)-Declaration of vacancy 
of a building-Allotment to the tenants-By Authority without compliance of 
the provision of the Act and Rules and without f1Xing the rent-Rent not paid 
by the tenants-Declaration of vacancy not challenged by landlord then and D 
there-Order of allotment challenged-Revisional Authority set aside the orders 
declaring vacancy and that of allotment-Writ Petition-Allowed by High 
Court on the ground that order declaring vacancy having not been challenged 
then and there, the same attained finality and it could not be challenged in 
subsequent revision against order of allotment-On appeal, held: The order 
notifying vacancy leading to final order of allotment can be challenged in a E 
proceeding challenging final order, it being an order at preliminary stage in 
the process of passing of final order-Tenants directed to pay arrears of rent 
and future rent-Matter remanded to High Court-Code of Civil Procedure, 
1908-Sections 97, 105 and Order XL/II Rule (IA). 
'A' was the landlord of the building in question. Respondent No.1-
F 
tenant made application for declaration of vacancy and allotment of the 
suit building to him as a tenant u/s. 12 r/w. Section 16 of Uttar Pradesh 
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 
Inspector, without compliance with the requirements of Rule 8(2) of U.P. 
Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, G 
submitted the report to the effect that the first floor of the building might 
be considered to be vacant u/s. 12 of the Act. As 'A' was out of India, her 
father filed objections that no part of the building was vacant and 'A' was 
entitled tot.he notice under the Act and the Rules. The Authority declared 
439 
H 
440 
SUPREME COURT REPORTS 
[2005] 3 S.C.R. 
A vacancy of the first floor as well as ground floor. This order u/s. 12 was 
not challenged by 'A' then and there. Authority further passed an order 
allotting the ground floor to respondent No. 1, but without fixing the 
presumptive rent. By another order, the Authority allotted the first floor 
in favour of respondent No. 2, in view of his urgent need as a Government 
official. In this case also rent was not fixed. 
B 
Landlord challenged the orders of allotment in revision, which was 
allowed by the Revisional Authority holding that declaration of vacancy 
was patently erroneous, since as per the report of the Inspector, the ground 
floor was not vacant; and that even with regard to first floor, it could not 
C be deemed that there was a vacancy in the face of the report; and that 
Rules 8(2) and 9(3) of the Rules were not complied with and hence question 
of allotment did not arise. Respondents 1 and 2 - allottees, filed Writ 
Petition wherein interim stay was granted by High Court. During 
pendency of the petition, 'A' sold the building to the present appellant. 
Appellant filed application for vacation of interim stay on the ground that 
D Respondent No. 2 having been transferred, was no more entitled to 
continue as an allottee; and that the respondents were not entitled to the 
benefit of stay, having not paid any rent. In the meantime Authority 
cancelled the allotment made to respondent No. 2. High Court allowed the 
Writ Petition on the sole ground that the order declaring vac~ncy not 
E having been challenged, then and there, the order had attained finality 
and the same could not be challenged in the subsequent revision against 
the order of allotment. Hence the present appeal. 
Division Bench of this Court doubting the correctness of the decision 
in Ganpat Roy and Ors. v. Addi. Distt. Magistrate and Ors., (1985) 2 SCC 
p 307 referred the matter to larger Bench. Appellant also filed two 
interlocutory applications seeking direction to the respondents to pay the 
rent in arrears and for direction to respondents to vacate the building. 
G 
Allowing the appeal and remanding the matter to High Court, the 
Court 
HELD : t. t. High Court was in error in allowing the Writ Petition 
solely on the ground that the landlord had not challenged the original 
order notifying the vacancies then 

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