LexR.K.SHUKLA versus SUDHRIST NARAIN ANAND (DEAD) BY L.RS.
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)t [200818 S.C.R. 373 R.K.SHUKLA v. SUDHRIST NARAIN ANAND (DEAD) BY L.RS. (Civil Appeal No.7238 Of 2005) MAY 12, 2008 [A.K. MATHUR AND TARUN CHATTERJEE, JJ.) Constitution of India, 1950 - Arts. 226 and 136: A B Rent Control & Eviction Officer (RC & EO) declared the disputed premises to be vacant and thereafter passed order C of allotment in favour of Appellant - Against the allotment or- der, Respondent filed revision petition which was dismissed - Respondent filed writ petition - High Court allowed it thereby setting aside the allotment order and further held the vacancy declaration order to be invalid.- Whether High Court erred in D considering the validity of the vacancy declaration order while hearing the writ petition against the allotment order - Held, No - The High Court had permitted Respondent to amend the writ petition whereby he sought to challenge the order de- claring vacancy - When such order of High Courl allowing the E amendment was challenged by filing SLP, this Court had re- manded the matter to High Court for fresh decision - Since this Court had not decided that SLP on merits, it cannot be said that the vacancy declaration order had attained finality - Therefore, High Court was fully justified in considering the F 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 s. 16 of the Act - No reason for interfer- ence under Art. 136 of the Constitution - UP Urban Build- G ings (Regulation of Letting, Rent and Eviction) Act, 1972 - ss.12 and 16. Applications were filed before the Rent Control & Eviction Officer (RC & EO) for allotment of the disputed 373 H 374 SUPREME COURT REPORTS [2008] 8 S.C.R. A premises. Eventhough Respondent/landlord filed objec- tions thereagainst, specifically bringing to the notice of the RC & EO that he was in physical occupation of the disputed premises and nothing was vacant which could be said to be available for allotment, the RC & EO, on s 24th January, 1981, declared the disputed premises to be vacant and subsequently, on 18th November, 1981, passed an order of allotment in favour of the Appellant. Against the allotment order, Respondent filed revision petition under s.18 of the Uttar Pradesh Urban Buildings c (Regulation of Letting, Rent and Eviction) Act, 1972 which was dismissed. Respondent thereafter filed writ petition before the High Court which allowed the same thereby setting aside the order dated 18th November, 1981 passed by the RC & EO. The High Court also considered the 0 validity of the order dated 24th January, 1981 declaring vacancy passed by the RC & EO and held the same to be invalid. In appeal to this Court, it was contended by Appel- lant that the High Court was not justified in interfering with E the order dated 24th January, 1981 in exercise of its writ jurisdiction under Art. 226 of the Constitution. It was con- tended that during pendency of the writ petition before High Court, an application praying for amendment of the writ petition for challenging the order dated 24th Janu- F ary, 1981 was filed, which was allowed by the High Court; that Appellant had filed an application for recall of the said order of the High Court but the same was also rejected; that aggrieved by the said orders of High Court, the Ap- pellant had filed a special leave petition before this Court G which was allowed and that by virtue of that, the fact of existence of vacancy had attained finality. In sum and substance, it was contended that it was not open to the High Court to adjudicate upon the ques- tion of vacancy after the decision of this Court and also H in view of the concurrent findings of fact of the RC & EO " R.K.SHUKLA v. SUDHRIST NARAIN ANAND (DEAD) BY L.RS. and the Revisional Court. Dismissing the appeal, the Court 375 HELD:1.1. The question whether Respondent was given sufficient opportunity to object and lead evidence A to disprove the fact of vacancy was taken into consider- B ation by the High Court and from the materials on record and the evidence adduced by the parties, it was open to the High Court, even in the exercise of its power under Art.226/227 of the Constitution, to come to a finding of fact that such opportunity was not at all given to Respondent. c [Para 11] [385, G-H; 386, A] 1.2. Even assuming that the Hig
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