ACHAL MISRAversusRAMA SHANKER SINGH AND ORS.

                         ACHAL MISRA                                            A
                              v.
                  RAMA SHANKER SINGH AND ORS.

                             APRIL 11, 2005

           [R.C. LAHOTI, CJ., D.M. DHARMADHIKARI AND                            B
                   P.K. BALASUBRAMANYAN, JJ.]


     Rent Control and Eviction :

      Uttar Pradesh Urban Building (Regulation ofLetting, 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 ofvacancy
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 ofallotment 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 ofpassing offinal 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.

         Allowing the appeal and remanding the matter to High Court, the
    Court
G
          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 and there. 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
H   a preliminary step in the process of decision making in passing the final
                    ACHAL MISRA 1·. RAMA SHANKER SINGH                 441
order. Hence in a revision against the final order of allotment which is       A
provided for by Uttar Pradesh Urban Building (Regulation of Letting,
Rent and Eviction) Act, 1972, the order notifying the vacancy could be
challenged. 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        B
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. [449-F-H; 450-C-DI

      Ganpat Roy and Ors. v. Addi. Distt. Magistrate and Ors., (198512 SCC
307, relied on.                                                                c
      Mis. Tirlok Singh and Co. v. District Magistrate, Lucknow and Ors.,
(1976) 3 sec 726, clarified.

     Smt. Kun) lata v. Xth Add!. District Judge, Kanpur Nagar and Ors.,
(1991) 2 RCJ 658, overruled.                                                   D
     Moheshur Singh v. The Bengal Government, (1859) 7 Moo llnd App
283(302), referred to.

      1.2. A party is not bound to appeal from every interlocutory order
which is a step in the procedure that leads to a final decree. It is open on   E
appeal from such final decree to question an interlocutory order. This
principle is recognized by Section 105(1) CPC and reaffirmed by Order
XLIII Rule {IA) CPC. The two exceptions to this Rule are found in Section
97 CPC 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) CPC which precludes a challenge          F
to an order of remand at a subsequent stage while filing an appeal against
the decree passed subsequent to the order of remand. [449-A-CI

     Satyadhan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., [1960) 3
SCR 590 and Amar Chand Butail v. Union of India and Ors., AIR (1964)
SC 1658, relied on.                                                            G
     Sheonath v. Ramnath, (10 MLA 413), referred to.

      2.1. Respondent Nos. 1 and 2 are directed to tender an amount of
Rs. 3,50,000 and Rs. 3,00,000 respectively to the landlord and to pay an
amount of Rs. 1200 and 1000 plus water tax and drainage tax, respectively      H
    442                     SUPREME COURT REPORTS                     [2005] 3 S.C.R.

A month by month to the landlord w.e.f. 1.5.2005. 1452-CI
         2.2. As rate of rent has not been appointed at which rent would be
    payable by the respondents to the landlord, the respondents shall be liable
    to pay the rent equivalent to mesne profits with effect from the date with
    which they are found to have ceased to be entitled to retain possession of
B   the premises as tenant and for such period the landlord's entitlement
    cannot be. held pegged to the standard rent. (452-G-H; 453-A]                       -
                                                                                        .>



          Atma Ram Properties (P) Ltd v. Federal Motors (P) Ltd., (2005) 1 SCC
    705, relied on.

C         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3322 of I 998.

         From the Judgment and Order dated 29.1.97 of the Allahabad High
    Court in W.P. No. 803 of 1979.

          Sunil Kumar Jain and S. Borthakur for the Appellant.
D
         Manoj Swarup, Ms. Lalita Kohli, for M/s Manoj Swarup & Co. for the
    Respondent Nos. 1-2.

          The Judgment of the Court was delivered by

E          P.K. BALASUBRAMANYAN, J. I. Dr. C.P. Tandon, had a house in
    Lucknow. It was two storeyed. It had a plinth area of3500 square feet. It was
    situate on a plot of land admeasuring 8892 square feet. Dr. C.P. Tandon died
    on 24.08.1977. The house devolved on his son K.K. Tandon. K.K. Tandon
    died in London on 10.06.1978 while having treatment for his illness. The
F   building was inherited by his wife, Asha Tandon. Asha Tandon thus became
    the owner of the building.

           2. On 28.08.1978, respondent No. I before us, made an application for
    declaration of vacancy and allotment of the suit building to him as a tenant
    under Section 12, read with Section 16 of the Uttar Pradesh Urban Buildings
G   (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter called 'the
    Act'). The Inspector, an officer under the Act submitted a report on 11.09.1978
    to the effect that the first floor of the building may be considered to be vacant
    under Section 12 of the Act, though a person claiming to be a caretaker was
    found therein. It is seen that the Inspector, while making the report, did not
    comply with the requirements of Rule 8(2) of the U.P. Urban Buildings
H   (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter called
         ACHAL MISRA'" RAMA SHANKER SINGH [BALASUBRAMANYAN, J.]             443
'the Rules'). On 15.9.1978, the Additional District Magistrate, the Authority       A
under the Act, on the basis of the report issued a notice inviting objections
for allotment of the first floor. On 09.10.1978, the father of Asha Tandon, the
inheritor of the house, filed objections. He contended that no part of the
building was vacant and the owner, Asha Tandon, was entitled to notice in
terms of the Act and the Rules and no notice had been issued to her. On             B
23.10.1978, the Additional District Magistrate, declared "acancy not only in
respect of the first floor but also in respect of the ground floor in terms of
Section 12 of the Act. This order under Section 12 of the Act was not
challenged then and there by Asha Tandon, the owner. The father of Asha
Tandon filed an application seeking time to file objections against the proposed
allotment of the building on the ground that at the relevant time, the landlord,    C
Asha Tandon, was in London and there was no notice to her as mandated by
the Act and the Rules. On 08.11.1978, the Additional District Magistrate
rejected the application for time filed by the father of Asha Tandon. He also
proceeded to pass another order allotting the ground floor to respondent
No. I, but without fixing the presumptive rent as required by the Act. Two          D
days later, he passed another order allotting the first floor in favour of
respondent No.2, who had come to the town as a Munsif Magistrate, in view
of that officer's urgent need as a Government official for accommodation,
but again, without fixing the presumptive rent as required by Section 16(9)
of the Act. These orders of allotment were challenged by Asha Tandon and
her father in revisions filed under Section 18 of the Act. On 23 .03 .1979, the     E
Additional District Judge allowed the revisions holding that the order of the
Additional District Magistrate declaring vacancy was patently erroneous since
as per the report of the Inspector, the ground floor of the building was not
 vacant. That, even as regards the first floor, it could not be deemed that there
was a vacancy in the face of the report and hence no question of allotment          F
arose. The Additional District Judge also found that there was no compliance
of Rule 8(2) and Rule 9(3) of the Rules and that the orders of allotment were
liable to be set aside. He thus set aside those orders. Respondent Nos. I and
2 herein, the allottees, filed a Writ Petition in the High Court of Allahabad
challenging the order of the Additional District Judge. On 16.05.1~91, while        G
the Writ Petition was pending, Asha Tandon'sold the building to the present
appellant. The appellant moved for vacating the interim stay granted by the
Allahabad High Court on the ground that respondent No.2, the Magistrate,
who was the allottee of the first floor, had been transferred from Lucknow
to Deoria and was no more entitled to continue as an allottee. A further
                                                                                    H
    444                     SUPREME COURT REPORTS                     [2005] 3 S.C.R.

A ground was that respondent Nos. I and 2 had not paid any rent and were
    defaulters and not having paid a single pie to the landlord all these years,
    were not entitled to have the benefit of a stay of eviction from the High
    Court. Meanwhile, on 04.05.1994, the Additional District Magistrate taking
    note of the fact that respondent No.2, the Magistrate, to whom the allotment
B   was made in his capacity as an official, was transferred to Deoria and had
    been staying in Deoria in a Government allotted quarters, cancelled the
    allotment of the first floor to him. Thus, though the vacancy of the first floor
    was declared no further step was taken regarding that floor. Th.e appellant,
    therefore, approached the High Court seeking a clarification that the interim
    order would not stand in the way of considering the claim for release of the
C   first floor by the appellant. By order dated 20.07 .1995, the High Court clarified
    that its interim order dated 10.04.1979 would not stand in the way of
    considering the release of the first floor to the appellant. According to the
    appellant, in spite of this clarification, no steps were taken regarding the first
    floor allegedly because of the improper influence exercised by respondents.
D
           3. Ultimately, the High Court allowed the Writ Petition and set aside
    the order of the Additional District Judge on the sole ground that the order
    declaring vacancy dated 23.10.1978 not having been challenged by the Asha
    Tandon, the owner of the building, then and there, that order had attained
    finality and that order could not be challenged in the subsequent revision
E   against the order of allotment. Even if this were the position, the High Court
    failed to see that at least as regards respondent No.2 herein, the effect of the
    subsequent cancellation of the allotment ought to be considered, in the context
    of the claim of the owner of the building for release of the building. Thus,
    clearly the judgment of the High Court suffers from non application of mind.
F
          4. Aggrieved by the setting aside of the order of the Additional District
    Judge cancelling the allotment in favour of respondents l and 2 herein, the
    appellant, the assignee landlord, has filed this appeal. In view of Section I 09
    of the Transfer of Property Act, there cannot be any doubt that the landlord
    being an assignee of the owner, was entitled to enforce his rights in respect
G   of the property even if it were to be taken that respondent Nos. I and 2 were
    to be treated as tenants of the building under him. This Court granted special
    leave. By order dated I 7.08.2000, a Bench of two learned Judges after noticing
    the decision in Ganpat Roy and Ors. v. Additional District Magistrate and
    Ors., [l 985] 2 SCC 307 and doubting the correctness of the approach made
H   therein, ordered that this appeal be heard by a larger Bench. That is how, this
         ACHAL MISRA v. RAMA SHANl<ER SINGH [BALASUBRAMANY AN, J)             445

appeal has come up before this Bench of three Judges.                                 A
      5. In this appeal, I.A. 4 of 2004 was filed by the appellant seeking
directions to the respondents to pay the rent in arrears at the rate of Rs. I 0,000
per month for the ground floor and Rs. 8,000 per month for the first floor
from the dates of the respective allotments till date. Certain amounts, which
according to the appellant were paltry, were deposited by the respondents             B
and the said application was also directed to be heard along with the appeal.
I.A. No.5 of 2004 was filed complaining that Respondent No.2 had not
vacated in spite of declaration of vacancy of the premises originally allotted
to him. This was also directed to be listed with the appeal.

       6. The Act, by Section 11, prohibits the letting of a building withoµt         C
an order of allotment in terms of the Act. A building from which a landlord
or a tenant had substantially removed his effects, or had allowed it to be
occupied by a person who is not a member of his family, or in the case of
a residential building, where the landlord and the members of his family have
taken up residence elsewhere, the residence being not temporary, it was to be         D
deemed under Section 12 of the Act, that a vacancy had arisen in respect of
that building. Sub-Section (3-A) of Section 12, which has obvious application
in the case of respondent No.2 herein, provides that ifthe tenant of a residential
building holding a transferable post under the Government has been transferred
to some other city, then, such tenant shall be deemed to have ceased to
occupy such building with effect from the thirtieth day of June following the         E
date of such transfer or from the date of allotment to him of any residential
accommodation in the city to which he has been so transferred. Under Rule
8 of the Rules, for ascertaining the vacancy, the District Magistrate had to get
the building inspected as far as possible in the presence of the landlord and
the tenant or any other occupant and after eliciting from at least two respectable    p
persons in the locality, information regarding the vacancy and thereafter put
up on the notice board, for information of the general public, the information
regarding vacancy. An objection filed within three days from the date of
putting up of such a notice, had to be considered and decided after considering
the evidence adduced by the objector and an allotment had to be made only
in the event of the objection to declaring the vacancy, being rejected. Rule          G
 10 provides the procedure for allotment. An allottee in terms of Section 16
of the Act was deemed to be the tenant of the building under the landlord
from the date of the allotment. Under Section 16(9), the District Magistrate
had to make an order requiring the allottee to pay to the landlord one half of
the yearly presumptive rent, or one month's presumptive rent, the presumptive         H
    446                     SUPREME COURT REPORTS                    (2005) 3 S.C.R.

A rent being an amount of rent which the District Magistrate, prima facie,
    considers reasonable having regard to Section 9 of the Act.

          7. The reference of this appeal to a larger Bench was necessitated by
    the following sequence of events.

B         In Mis Tirlok Singh and Co. v. District Magistrate, Lucknow and Ors.,
    [ 1976] 3 SCC 726, two learned Judges of this Court held that under the
    scheme of the Act, an order notifying a vacancy by itself does no injury and
    causes no prejudice to the interests of any party. A notification of the vacancy
    under Section 12 of the Act, was only a step-in-aid of an order of allotment
    or release and only when such orders are passed, the landlord or the tenant,
C as the case may be, can have a grievance. Orders of allotment and release are,
    in the first instance, reviewable by the District Magistrate himself and an
    order passed by the District Magistrate under Section 16 of the Act, was
    appealable under Section 18 of the Act. So, a person aggrieved by an order
    of allotment or release has at least a twofold opportunity to challenge an
D order affecting his interest. Therefore, a Writ Petition filed against an order
    declaring a vacancy only, was premature, as the order did not affect the rights
  . of the person who challenges that order. Of course, this decision was based
    on the provisions of the Act and the Rules then existing.

          8. The decision in Mis Tirlok Singh and Co. (supra) came to be
E   considered by a Bench of three learned Judges in Ganpat Roy and Ors. v.
    Additional District Magistrate and Ors., (supra). That consideration was during
    the pendency of the Writ Petition filed by the tenants before the High Court
    in the present case. In Ganpat Roy's case, the Bench disagreed with the
    position adopted in Mis Tirlok Singh and Co., that rights of the landlord or
F   the tenant are not affected merely by the notification of a vacancy. Of course,
    by the time, Ganpat Roy's ·case came to be decided, the Act had undergone
    an amendment and an appeal against the final order of allotment had been
    replaced by a revision under more restricted conditions. The Bench in Ganpat
    Roy's case observed th~t 'the observations in Mis Tirlok Singh and Co. that
    it was unnecessai:y for t~e District Magistrate to hear the parties before
G   notifying the vacancy did not appear to be correct. 1t also did not appear to
    be correct to hold that an order notifying the vacancy did no injury and
    caused no prejudice to the interests of any party because an order notifying
    the vacancy could be objected to and if any objections were filed, they would
    have to be decided after considering the evidence that the objector or any
H   other person concerned might adduce. The further remedies provided to an ·
         ACHAL MISRA v. RAMA SHANKER SINGH [BALASUBRAMANY AN, J.]           44 7
aggrieved person after an allotment was made, also supported this position.         A
The learned Judges thus held that the correctness of the decision in Mis
Tirlok Singh and Co. 's was open to doubt. Their Lordships ended up by
saying that the scheme of the Act would show that a tenant of a premises in
whose case it was found that there was a deemed vacancy had no efficacious
or adequate remedy under the Act to challenge that finding. A petition under
Article 226 or 227 of the Constitution of India filed by such a tenant in order     B
to challenge that finding could not, therefore, be said to be premature. In that
view, the Bench set aside the decision of the Allahabad High Court and
remanded the Writ Petition involved therein to be heard by the High Court
on merits. Thus, the subsequent decision of three learned Judges of this Court
indicated that an order notifying the vacancy in terms of the Act was capable       C
of affecting the rights of the landlord or the tenant and hence the challenge
offered to it then and there, could not be said to be either not maintainable
or premature.

       9. It was in the context of this decision that the High Court allowed
the Writ Petitions filed by the allottees on the ground that the landlord not       D
having challenged the original order notifying the vacancy then and there,
was precluded from challenging the notifying of vacancy in revision against
the final order or in further challenges to it in the High Court. The Court also
noticed the decision in Smt. Kunj Lata v. Xth Additional District Judge,
Kanpur Nagar and Ors., ( 1991) 2 RCJ 658, holding that if an order declaring        E
a vacancy was not challenged and allowed to become final, it could not be
set aside by the Revisional Court in a revision against the final order of
allotment. The High Court proceeded to say that the law declared by this
Court in Ganpat Roy's case has to be taken to be the law as it always was,
and even though at the time of the declaration of vacancy in this case, the
landlord might have been misled by the ratio of the decision in Mis Tirlok          F
Singh and Co. 's case in not challenging that order then and there, the challenge
of the landlord in the revision to the final order of allotment had to be
rejected on the ground that the order declaring a vacancy had become final.
It was thus that the Writ Petitions filled by the allottees was allowed by the
High Court.
                                                                                    G
       IO. In the order of reference to a larger Bench dated 17.8.2000, the
learned Judges notieed that it could not be said that the question of vacancy ·
if not challenged by a separate Writ Petition on its notification, could not be
questioned in the revision filed under Section 18 of the Act. The question of
vacancy pertained to a jurisdictional fact and can be challenged .in the revision H
    448                     SUPREME COURT REPORTS                    [2005] 3 S.C.R.

A filed against the allotment order passed by the District Magistrate. In case it
    was found that there was no vacancy, the order of allotment had to be set
    aside. The Bench, therefore, felt that the decision in Ganpat Roy's case
    holding that the validity of declaration of vacaney cannot be agitated in the
    revision under Section 18 of the Act challenging the allotment could not be
    accepted as correct. It was in that context that the case was referred to a
B   larger Bench for decision, since the decision in Ganpat Roy's case was
    rendered by three learned Judges of this Court.

          11. On the scheme of the Act, it is clear lhat the preliminary step is to
    declare a vacancy. At this stage, an enquiry has to be made including an
C   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
                                                                                        r-
    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
D   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
                                                                                        r
    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
E   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. It
    was held long ago by the Privy Council in Moheshur Singh v. The Bengal
    Government, (1859) 7 Moo Ind App 283 (302):

            "We are not aware of any law or Regulation prevailing in India
            which· renders it imperative upon the suitor to appeal from every
F
            interlocutory order by which he may conceive himself aggrieved,
            under the penalty, if he does not do so, of forfeiting forever the
            benefit of the consideration of th.e Appellate Court. No authority or
            precedent has been cited in support of such a proposition, and we
            cannot conceive that anything would be more detrimental to the
G           expeditious administration of justice than the establishment of a rule
            which would impose upon the suitor the necessity of so appealing,
            whereby on the one hand he might be harassed with endless expense
            and delay, and on the other inflict upon his opponent similar
            calamities."

H
         ACHAL MISRA v. RAMA SHANKER SINGH [BALASUBRAMANY AN, J.]           449

      In Sheonath v. Ramnath, (IO MIA 413) the Privy Council reiterated             A
that a party is not bound to appeal from every interlocutory order which is
a step in the procedure that leads to a final decree. It is open on appeal from
such final decree to question an interlocutory order.

       12. This principle is recognized by Section 105(1) of the Code of Civil
Procedure and reaffirmed by Order XLIII Rule (IA) of the code. The two              B
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      C
an appeal against the decree passed subsequent to the order of remand. All
these aspects came to be considered by this Court in Satyadhan Ghosal and
Ors. v. Smt. Deorajin Debi and Anr., [1960] 3 SCR 590 wherein, after referring
to the decisions of the Privy Council, it was held that an interlocutory order
which had not been appealed from either because no appeal Jay or even
though an appeal lay an appeal was not taken, can be challenged in an appeal        D
from a final decree or order. It was further held that a special provision was
made in Section 105(2) of the Code of Civil Procedure as regards orders of
remand where the order of remand itself was made appealable. Since Section
l 05 (2) did not apply to the Privy Council and can have no application to
appeals to the Supreme Court, the Privy Council and the Supreme Court               E
could examine even the correctness of an original order of remand _while
considering the correctness of the decree passed subsequent to the order of
remand. The same principle was reiterated in Amar Chand Butail v.. Union
of India and Ors., AIR (1964) SC 1658 and in other subsequent decisions.

       13. It is thus clear that an order notifying a vacancy which leads to the    F
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' s case, which
has disapproved the ratio of the decision in Mis Tirlok Singh and Co., cannot       G
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,          H
    450                     SUPREME COURT REPORTS                      [2005) 3 S.C.R.

A   in our view, has misunderstood the effect of the decision of this Court in
    Ganpat Roy's 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 that there is anything in the Act corresponding
    either to Section 97 or to Section I 05(2) of the Code of Civil Procedure,
B   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 Smt. Kun} lata v. Xth Additional District Judge,
    Kanpur Nagar and Ors., (supra) 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
C   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.
D
          14. 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
E   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



F
    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. The
                                                                                          ---
    appeal is hence allowed. The jttdgment of the High Court in the Writ Petition
    filed by the allottees is set aside and the Writ Petition is remanded to the
    High Court for a fresh disposal in accordance with law and in the light of the
    observations contained in this judgment. The High Court, it is hoped, will
G   expeditiously dispose of the Writ Petition afresh pursuant to this order of
    remand, in the circumstances of the case preferably within a period of six
    months of the receipt of a copy of this Judgment.

    I.A. NOS. 4 AND 5 of 2004

H         15. It appears that the respondents who are in occupation of the two
         ACHAL MISRA v. RAMA SHANKER SINGH [BALASUBRAMANY AN, J.]         45 J

floors in the suit premises, have not paid rent since the beginning. They seem    A
to be taking advantage of the pendency of litigation, also of the landlord
being not resident in India or in the city.

       16. I.A. No.4 of 2004 is filed by the landlord seeking direction to the
respondent-tenants to pay the rent of the premises during the pendency of
litigation. I.A. No.5 of 2004 is filed for a direction to the respondents to      B
vacate the premises. Notice on the applications was issued to the respondents.
On 5.4,2004, this Court directed respondent-tenants to pay the entire arrears
of rent/damages within a period of two months from the date of the order and
to continue to pay monthly rent/damages as and when it falls due. On 5.7.2004,
the Court directed that any amount tendered by the respondent-tenant would        C
be accepted by the landlord without prejudice.

      17. On 5.7.2004, respondent No.2-Raj Singh filed an affidavit-in-
response stating that on 2.6.2004 he tendered a crossed cheque of Rs. l ,45,860
as rent for 26 years calculated on the basis of the annual value as stated in
the assessment list of 1976, of the first floor of the premises in question       D
which is Rs.5, l 00, water tax Rs. 408 and drainage tax Rs. 102 making a total
of Rs.5,610 per annum. However, the cheque was received back by respondent
No. l as addressee-landlord was not available at the address given by him.

       18. Respondent No. I-Rama Shanker Singh has stated that he is a tenant
on the ground floor assesse4 at Rs.6,120 per annum whereas water tax is E
Rs.489.60 and drainage tax is Rs.122.40 making a total of Rs.6,732 per
annum. According to him he is a tenant since 14.11.1978 and with his letter .
dated 15th May, 2004 he tendered a pay order in an amount ofRs.l,75,032
to the landlord. The pay order sent through registered post has been received
back by him as undelivered to the addressee-landlord.
                                                                                  F
       19. According to the landlord, the property is a valuable property
situated in a prime locality of Lucknow city. The landlord has got the property
valued through Snow Fountain Consultants, Architects and Valuers. The
valuation report dated 17.7.2004 has been filed in the court, according to
which the total rent of the property would come to Rs.28,496 per month.           G
      20. 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.           H
    452                     SUPREME COURT REPORTS                   [2005] 3 S.C.R.

A         21. We direct as under:-

            (i)   Within a period of two months from today respondent No. I-
                  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
B                 same to the counsel for the landlord. With effect from J .5.2005,
                  month by month, or on or before the 15th day of that month,
                  Rama Shanker Singh-respondent No. I shall pay an amount of
                                                                                       -
                  Rs.1200 per month plus the amount of water tax and. drainage
                  tax through bank draft drawn i.n the name of the landlord and
                  tendered either to the landlord or to her counsel.
c                                                                                      ·---:
            (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,oo;ooo 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
D                or before the 15th day of that mon_th, Raj Singh-respondent No.2
                 shall pay an amount of Rs. I 000 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.                                                              -;im
E          (iii) This amount shall be treated as .a provisional payment but a
                 condition precedent to their entitlement to contest the present
                 proceedings. The amount so paid shall be liable to be adjusted
                 consistently with the decree that may be passed by the competent
                 Court for the recovery of the rent.
F          (iv) Any respondent who does not comply with the above-said order,
                shall not be entitled to contest in the proceedings and shall not
                be entitled to be heard.            •

           22. From the material available on record it does not appear that any
    rate of rent was appointed at which rent would be payable by the respondents
G   to the landlord. 'The respondents also do not seem to have taken any steps for
    fixation of rent of the premises in their occupation. They have been happy
    to have got the premises in a prime locality, occupying and enjoying the
    same for no payment. We make it clear that the respondents shall be liable
    to pay the rent equivalent to mesne profits with effect from the date with
H   which they are found to have ceased t_o pe entitled to retain possession of the
         ACHAL MISRA v. RAMA SHANKER SINGH (BALASUBRAMANYAN, J.]          453
premises as tenant and for such period the landlord's entitlement cannot be      A
held pegged to the standard rent. Reference may be had to the law laid down
by this Court in Atma Ram Properties (P) ltd v. Federal Motors (P) ltd
[2005] 1 sec 105.

      23. The appeal is allowed. I.A. Nos. 4 and 5 are disposed of in the
terms above said. The parties through their respective counsel are directed to   B
appear in the High Court on 2nd May, 2005. As it is long pending litigation,
we request the High Court to give this matter a priority in hearing and decide
the same as far as possible within a period of six months from 2.5.2005, the
date on which the parties would appear in the High Court.

K.K.T.                                                       Appeal allowed.