2005 Supreme(SC) 610

2005(3) Supreme 469
Supreme Court of India
(From Allahabad High Court)
R.C. Lahoti, CJI, D.M. Dharmadhikari & P.K. Balasubramanyan, JJ.
Achal Misra —Appellant
versus
Rama Shanker Singh and Ors. —Respondents
Civil Appeal No. 3322 of 1998
Decided on 11-4-2005
Counsel for the Parties :
For the Appellant : Sunil Kumar Jain and S. Borthakur, Advocates.
For the Respondents Nos. 1-2: Manoj Swarup, Ms. Lalita Kohli, Advocates for M/s. Manoj Swarup & Co., Advocates.

Important point
Under the provisions of the Uttar Pradesh Urban Buildings (Regulation of ­Letting, Rent and Eviction) Act, 1972, 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.

Headnote:Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Section 12 rw/s 16 — U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972—Rule 8(2)—Notifying of a vacancy—Order declaring a vacancy can be challenged while challenging the final order—One Dr. ‘T’ had a house in Lucknow—The house being two storeyed devolved on his son who died in London on 10-6-1978—Building was inherited by his wife—On 28-8-1978, respondent 1 made an application for declaration of vacancy and allotment of suit building to him as a tenant u/s 12 rw/s 16 of the Act—Report submitted to the effect that first floor of the building may be considered to be vacant—Objection filed by father of the owner of the house—Additional District Magistrate declared vacancy not only in respect of first floor but also of ground floor—Order of allotment challenged on ground that there was no notice to the owner of the building—Allottees not paying any rent—Respondent 2 allottee of first floor had been transferred—Cancellation of allotment of respondent 1 and 2 by order passed by Additional District Judge—High Court setting aside order of Additional District Judge holding that order declaring vacancy not having been challenged has become final—Whether judgment of the High Court is sustainable—(No)—Civil Procedure Code, 1908—Section 105(1); Order XLIII Rule (1A).

       Held : On the scheme of the Act, it is clear that the preliminary step is to declare a vacancy. At this stage, an enquiry has to be made including an enquiry involving at least two respectable neighbours. It is thereafter that the vacancy has to be notified and objections invited. This is followed by either dropping of the proceedings on the objections being upheld that there was no vacancy or by allotment to a tenant on finding the vacancy or in ordering a release of the building, in case a landlord was found entitled to have such a release under the Act. Therefore, the notifying of a vacancy is only a step in the process of making an allotment of the building to a tenant. The Act contemplates that no building should be let out by a landlord except through the process of allotment by the Rent Control Authority. Since the ­order notifying a vacancy is only a step in passing the final order in a proceeding under the Act regarding allotment, it is clear that the same could be challenged while challenging the final order, unless there is anything in the Act precluding such a challenge or conferring a finality to the order notifying a vacancy. (Para 11)

       This principle is recognized by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order XLIII Rule (1A) of the code. The two exceptions to this Rule are found in Section 97 of the Code of Civil Procedure, 1908, which provides that a preliminary decree passed in a suit could not be challenged in an appeal against the final decree based on that preliminary decree and Section 105(2) of the Code of Civil Procedure, 1908 which precludes a challenge to an order of remand at a subsequent stage while filing an appeal against the decree passed subsequent to the order of remand. (Para 12)

       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. (Para 13)

       We are, therefore, satisfied that the 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 and there. The decision of the High Court in the Writ Petition, therefore, requires to be set aside and the Writ Petition remanded to that Court for a fresh hearing and disposal in accordance with law, including the question whether the order notifying the vacancy was proper. It would also be necessary for the High Court to consider the effect of the cancellation of the order in favour of Respondent No.2 considering the nature of the allotment made in his favour, even assuming that the High Court does not find any reason to interfere with the order notifying the vacancy or with the order making the allotment. (Para 14)

       This litigation is more than 25 years old. To allow the tenants to contest the case without payment of arrears and occupation charges falling due month by month would be travesty of justice. There are two proceedings pending between the parties: one is the present proceedings and the other is a suit for recovery of rent filed by the landlord against the tenants.

       We direct as under:-

       (i) Within a period of two months from today respondent No.1- Rama Shanker Singh, in occupation of the ground floor, shall tender an amount of Rs. 3,50,000/- through demand draft drawn on a scheduled bank in the name of the landlord and hand over the same to the counsel for the landlord. With effect from 1.5.2005, month by month, or on or before the 15th day of that month, Rama Shanker Singh-respondent No.1 shall pay an amount of Rs. 1200/- per month plus the amount of water tax and drainage tax through bank draft drawn in the name of the landlord and tendered either to the landlord or to her counsel.

       (ii) Within a period of two months from today respondent No.2-Raj Singh, in occupation of the first floor, shall tender an amount of Rs. 3,00,000/- by way of demand draft drawn on a schedule bank in the name of the landlord and hand over the same to the counsel for the landlord. With effect from 1.5.2005, month by month, on or before the 15th day of that month, Raj Singh-respondent No.2 shall pay an amount of Rs. 1000/- per month, plus the amount of water tax and drainage tax through bank draft drawn in the name of the landlord and tendered either to the landlord or to her counsel. (Paras 20 and 21)