HARBANS LALversusJAGMOHAN SARAN

    634


A
                               llARBANS LAL
                                    v.
                             JAIMIHAN SARAN

                             OCTOBER 10, 1985

                  [R.S. PATHAK AND RANGANATH MISRA, JJ •]
B
          Constitution of India, Article 226 - Writ of certiorari -
    When can be issued - Power of High Court to reappraise the
    evidence - When arises.

          U.P, Urban Buildings (Regulation of Letting, Rent and
    Eviction) Act, 1972, s. 12 (1) (b) - Agent carrying on business
c   in the building on behalf of the original tenant - Tenant -
    Whether deemed to have ceased to occupy the building.

          The respondent-landlord filed a petition under s. 12 read
    with s. 16 of the u.p, Urban Buildings (Regulation of Letting,
    Rent and Eviction) Act, 1972 against the appellant-tenant in
    respect of a shop situated in the district of Bu!awlshahr, He
D
    claimed a declaration that the shop had fallen vacant ad that it
    should be released to him on the ground that the appellant-tenant
    had sub-let the shop to one Ysdram and had allowed it to be
    occupied by Ysdram and his son Madan Lal, neither of whom was a
    member of the appellant 1 s family. The prescribed Authority
    dismissed the respondent's petition, holding (i) that the
E
    respondent had failed to prove that the appellant bad sub-let the
    shop and that it could be deemed to be vacant; and (ii) that the
    appellant had eatablished that he waa conducting his buainess of
    selling vegetablea in the shop and that Madan Lal sat in on his
    behalf. An appeal by the reapondent was also diamisaed by the
    Second Additional District Judge, Bulandabahr. However, the High
F
    Court in a Writ Petition filed by the respondent, nmanded the
    case to the prescribed Authority for passing orders on the
    respondent's application for release of the property frcxa
    allotment on the ground that the appellant bad 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
G
    Madan Lal who was occupying the shop within the me•nlng of
    s. 12 (l)(b) of the U.P. Act.

          Allowing the appeal to this Court,

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                    HARBANS LAL v. JAGMOHAN SARAN                    635


      HKLD: l. It is well known that a writ in the nature of                A
certiorari may be issued only if the order of the inferior
tribunal or subordinate court suffers from an error of
jurisdiction or from a breach of the principles of natural
justice or is vitiated by a manifest or apparent error of law.
There is no sanction enabling the High Court to reappraise the
evidence without sufficient reason in law and reach findings of             B
fact contrary to those rendered by an inferior court or
subordinate court. When a High Court proceeds to do so, it acts
plainly in excess of its powers. [637 A-C)

      In the instant case, the finding is that Madan Lal sat in
the shop conducting the \legetable selling business on behalf of            c
the appellant. The findings of fact by both authorities rested .on
evidence, and there was no warrant for disturbing that finding of
fact in a writ petition. [636 G-11)

      2. Under s. l2(l)(b) of the u.p. Act ·a tenant of a building
is deemed to have ceased to occupy the building if he bas allowed           D
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 as the agent of the tenant.                1•
When a person sits in the premises and carries on a business on
beh&lf of and for the original occupant, it cannot be said that
the original occupant bas thereby allowed the accommodation to be
                                                                            E
occupied within the meaning of s. 12 (l)(b). [638 B-F)

      Slit. Jr.eabar 1111.i .v. District Judge, llatbura and Ora., [1980)
6 A.L.R. 165 referred to.

        CIVIL APPELLATE JURISDICTION        Civil Appeal No. 2866 of
1979.
                                                                            F
      From the Judgment and Order dated l.8.1979 of the Allahabad
High Court in Civil Writ Petition No. 1942 of 1977.

        Shankar Ghosh and B.P. MaheBhwari for the Appellant.
                                                                            G
     G.L. Sanghi, Mr. Manoj Swarup and Ms. Lalita Kohli for the
Respondent.

        The Judgment of the Court was delivered by

      PAillAK, J; : This appeal by ·speciai leave is directed
against the judgment of the Allahabad High Court allowing the               H
respondents writ petition on the finding that the accommodation
let out to the appellant must 'be deemed to be vacant.
        636               SUPREME COURT REPORTS          ll985] SUPP.3 S.G.R.


A              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
B       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.

              The Prescribed Authority made an order dated October 30,
        1976 rejecting the respondent's petition, on the finding that he
c       had failed to prove that the appellant had sub-let the shop and
        that it could be deemed to be vacant. He 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
D       Authority.

               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
    E    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
    F    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.

               We are satisfied that the High Court travelled outside its
          jurisdiction in embarking upon a reappraisal of the evidence. The
    G
          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
    H
              HARllANS LAL v. JAGMOHAN SARAN [PATHAK, J.J          637


  226 of the Constitution are well settled. The writ petition             A
  before the High Court prayed for a writ in the nature of
  certiorari, and it is well known that a writ in the nature of
  certiorari may be issued only if the order of the inferior tri-
  bunal or subordinate court suffers from an error of jurisdiction,
  or from a breach of the principles of natural justice or is
  vitiated by a manifest or apparent error of law. There is no            B
  sanction enabling the High Court to reappraise the evidence
. without sufficient reason in law and reach findings of fact
  contrary to those rendered by an inferior court or subordteate
  court. When a High Court proceeds to do so, it acts plainly in
  excess of its powers. We are informed that a report of the
  Collllllissioner in another suit was not considered by the Prescribed   c
  Authority and by the learned Second Additional District Judge,
  and therefore, it is urged, the High Court was- justified in
  taking that report into consideration and entering into an
  examination of the material on the record. We have examined the
  report of the Collllllissioner and we find that an objection had been
  filed to that report and the trial Court had failed to dispose it       D
  of. In other words, the report of the Collllllissioner is no~ a final
  document and cannot be taken into consideration as it stands. It
  must, therefore, be ignored. That being so, the finding of fact             l
  rendered by the Prescribed Authority and affirmed by the learned                '
  Second Additional District Judge remains undisturbed. The finding
  is that Madan Lal sat in the shop conducting the vegetable              E
  selling business on behalf of the appellant.

       The next point to consider is whether the shop can be
 deemed to be vacant within the meaning of s. 12 (l)(b) of the
 U.P. Act. Section 12 provides :-

             "12. Deemed vacancy of building in certain c~ses - (1)       F
             A landlord or tl!nant of a building shall be deemed to
             have ceased to occupy the building or a part thereof
             if -

             (a) he has substantially removed his effects there-
             from, or                                                     G

             (b) he has allowed it to be occupied by any person who
             is not a member of his family, or

             (c) in the case of a residential building, he as well
             as members of his family have taken up residence, not
             being temporary residence, elsewhere.                        H

             x           x              x             x             x"
    638              SUPREME COURT REPORTS      [1985) SUPP.3 s.c.a.


A   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
B   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


c
    be impossible for the original occupant to engage any person to
    assist him in the discharge of his responsibilities in the place
    where he does- so. It cannot be conceived that the U.P. Legis-
    lature intended a person, occupying a building as a tenant, to
    live or operate in such a building with members of his family and
                                                                        I
    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 V•
D   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
                                                                        I
    person other than a family member wee found in the occupation of
    a building. It does not appear that the learned Judges speci-
    fically considered the full significance and scope of the
E   expression "occupied" ins. l2{l)(b). We 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 S• l2(l){b).

F        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.

         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
G   appeal is allowed with costs.




                                                      Appeal allowed.
H