R.K.SHUKLAversusSUDHRIST NARAIN ANAND (DEAD) BY L.RS.

                            [200818 S.C.R. 373

)t
                          R.K.SHUKLA                                        A
                               v.
           SUDHRIST NARAIN ANAND (DEAD) BY L.RS.
                (Civil Appeal No.7238 Of 2005)
                              MAY 12, 2008
                                                                            B
         [A.K. MATHUR AND TARUN CHATTERJEE, JJ.)

          Constitution of India, 1950 - Arts. 226 and 136:
           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
  validity of the order dated 24th January, 1981 declaring
0
  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          375
                  (DEAD) BY L.RS.

and the Revisional Court.                                  A
    Dismissing the appeal, the Court
     HELD:1.1. The question whether Respondent was
given sufficient opportunity to object and lead evidence
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 High Court was wrong
in coming to a conclusion of fact that no opportunity was
given to the respondent to file objections, then also, this
Court is not inclined to interfere with the judgment of the D
High Court ir. the exercise of its discretionary powi:r un-
der Art.136 of the Constitution for the following reasons:
     a. The passing of the allotment order without declar-
ing vacancy was a gross error committed by the RC&EO
because under the scheme of the provisions of the Act, E
the preliminary step was to declare a vacancy, which was
not done and even if done, the same was not in a bonafide
manner. The RC&EO should have at least conveyed their
decision on that point.
                                                            F
     b. The Rent Control Inspector (RCI) and the RC & EO
while submitting the report and passing the order declar-
ing vacancy respectively did not adhere to the provi-
sions governing the allotment of vacant buildings. No
neighbour was enquired to ascertain vacancy, much less G
two neighbours as mandated by the rules.
      c. The finding of the High Court that simply because
the gate was locked, it was no ground to conclude that
the disputed premises was vacant cannot be ignored. The
fact that the gate was locked cannot be a conclusive proof H
    376      SUPREME COURT REPORTS               [2008] 8 S.C.R.


A to hold that the respondent had removed his effects there-
  from or that he had allowed it to be occupied by any per-
  son who was not a member of his family or even that he
  and members of his family had taken up residence else-
  where. The question of deemed vacancy cannot arise at
B all in view of the facts, which would be evidenced from
  the order of the RC & EO and the report of the RCI.
        d. The High Court had permitted the respondent to
  amend the writ petition whereby he sought to challenge
  the order dated 24th January, 1981 declaring vacancy.
C Such order of the High Court allowing the amendment
  was challenged before this Court. Since this Court had
  remanded the matter to the High Court for a fresh deci-
  sion on the question whether the amendment should be
  allowed or not along with the merits of the writ petition, it
D cannot be said that the High Court was in error after the
  order of this Court to allow the application for amendment
  on facts as this Court did not decide the merits as to
  whether the application for amendment should be al-
  lowed or not. The High Court had simply followed the di-
E rections made by this Court in the order passed in that
  special leave petition and came to a conclusion that the
  order dated 24th of January, 1981 declaring vacancy was
  bad in law.
        e. It was open to the respondent to challenge the or-
F der declaring vacancy in the writ petition against the al-
  lotment order even though the said order was not chal-
  lenged independently there and then. Therefore, the High
  Court was fully justified in considering the validity of the
  vacancy declaration order while hearing the writ petition
G against the allotment order. Since this Court had not de-
  cided that special leave petition on merits, it cannot be
  said that the vacancy declaration order had attained fi-
  nality. Therefore, the High Court was fully justified in con-
  sidering the question of vacancy, which was a core issue
H in the writ petition because if the vacancy declaration it-
        R.K.SHUKLA v. SUDHRIST NARAIN ANAND              377
                  (DEAD) BY L.RS.

self was bad in law, the consequent allotment order which        A
was passed cannot be said to be not in violation of s.16
of the Act.
      f. In any view of the matter, the question regarding
vacancy was a core issue in the writ petition and the High
Court, on consideration of the materials on record was 8
entitled to look into it by invoking its writ jurisdiction un-
der Art. 226 of the Constitution. Since the order passed
by the High Court was based on consideration of facts,
which cannot be interfered with except in exceptional
cases, there is no reason to interfere with the same under C
Art. 136 of the Constitution. [Paras 11, 12, 13, 14, 16) [386,
B; F; G-H; 387, A-C; 388, H; 389, A-E; 389, F-H; 390,A; A-CJ
     1.3. There is another aspect of this matter for which,
in the facts and circumstances of this case, this Court
                                                             0
would not exercise discretionary power under Art.136 of
the Constitution. The Appellant stormed into the disputed
premises more than two decades back and started en-
joying the same without paying a single penny in respect
of the same. It was only after the judgment of the High
Court that he had deposited the amount as directed by E
the High Court. Therefore, there is no reason to interfere
with the impugned judgment of the High Court under Ar-
ticle 136 of the Constitution in the facts and circum-
stances of the case. The Appellant is, however, granted
time to vacate the disputed premises by 30th of Novem- F
ber, 2008 subject to filing an usual undertaking before this
Court within one month.[Paras 17, 18) [390,C-G)
     Ganpat Roy and Others vs. A.D.M. and others, (1985) 2
sec 307 - relied on.                                             G
     CIVILAPPELLATE JURISDICTION: Civil Appeal No. 7238
of 2005
     From the Order dated 9.11.2004 of the High Court of Ju-
dicature at Allahabad in Civil Misc. Writ Petition No. 4621 of   H
    378       SUPREME COURT REPORTS                 [2008] 8 S.C.R.


A 1982
                                                                      "
           J.C. Gupta, S.R. Singh, Harish C. Kharbanda, Manoj
    Swaroop, Prakash Chandra Shukla, Shrish Kumar Mishra,
    M. P. S. Tomar and Sandhya Goswami for the Appellant.
B         Ranjeet Kumar. Rani Chhabra for the Respondent.
          The Judgment of the Court was delivered by
         TARUN CHATTERJEE,J. 1. One Parsuram Pandey filed
   an application for allotment of a part of House No.21, George
c Town, Hamilton Road, Allahabad, U.P. (in short "the disputed
   premises") which had allegedly fallen vacant. There were in a!I,
   thirteen applications for allotment of the disputed premises by
   various persons before the Rent Control & Eviction Officer (in
   short "the RC & EO"). On the said application of Parsuram
   Pandey for allotment of the disputed premises, an order was
0
   passed by the RC & EO on 9111 of September, 1980 directing
  the Rent Control Inspector (in short "the RCI") to inquire and
  report on the issue of vacancy of the said disputed premises.
  Consequent to the order dated 91h of September, 1980, the
  RCI, after inspecting the disputed premises, submitted his re-
  port to the RC & EO regarding vacancy. Thereafter, the RC &
  EO on 18th of September, 1980 passed an order issuing notice
  to the landlord/respondent calling upon him to appear on 6th of
  October, 1980 and directed that the matter of allotment of the
  disputed premises would be considered on that date. Notices
  dated 15th of November. 1980 and 1•t of December, 1980 were
  again issued to the respondent for the aforesaid purpose. On
  3rc1 of January, 1981, the respondent was directed to appear
  before the RC & EO and accordingly, the respondent did ap-
  pear before the RC &EO but no other person was present there.
  The RC &EO noted the presence of the respondent and passed
  the following order: -
          "Today the file was placed in presence of the land-
    lord. None else was present."
          2. The RC & EO passed an order dated 24th of January,
           R.K.SHUKLA v. SUDHRIST NARAIN ANAND                379
           (DEAD) BY L.RS. [TARUN CHATTERJEE,J.]

 1981, on the question of vacancy and also directed the matter A
 to be put up on 31st of January, 1981 for arguments on allotment
  and orders. It was the case of the respondent that by the afore-
  said order dated 24th of January, 1981, he came to know that
· certain applications were filed before the RC & EO for allot-
  ment of the disputed premises although he along with his family B
  members was very much living in the disputed premises and
  there was no occasion for anyone to make any application for
  allotment. Accordingly, the respondent had brought to the no-
  tice of the RC & EO that he was occupying the disputed pre-
  mises and the question of allotment of the disputed premises      c
  to anyone else could not arise at all. Therefore, all the applica-
  tions for grant of allotment of the disputed premises must be
  dismissed. It was all along the case of the respondent that he
  had filed his objections with regard to the matter of allotment of
  the disputed premises on 24th of January, 1981 to the extent
  that the disputed premises which was occupied and possessed D
  by the respondent was No. 21, Hamilton Hoad and not No. 21,
  Georgetown, Allahabad, with which the respondent had no con-
  cern and the allotment applications, if they related to No. 21,
  Hamilton Road, Allahabad were liable to be rejected as no part
  of the same was lying vacant. At this stage, it would not be out
  of place to mention that the notice received by the respondent
  was not indicative of the fact that the question of allotment of the
  disputed premises would be considered on 3rd of January, 1981.
  It was also all along the case of the respondent that the notice
  was served on him at his address although the notice mentioned
  the address of the respondent as 103, Chowk Gangadas,
  Allahabad and on the back of the notice, there was the process
  server's report that the respondent was residing at No. 21,
  Hamilton Road, Georgetown, Allahabad. According to the re-
  spondent, without considering the objections filed by him, the
  RC & EO on 24th of January, 1981 declared the vacancy par-
  ticularly when the respondent himself had appeared before the
  RC & EO specifically bringing to his notice that he was in physi-
  cal occupation of the disputed premises and nothing was va-
  cant which could be said to be available for allotment. It was
    380       SUPREME COURT REPORTS                   [2008] 8 S.C.R.

                                                                         f,
A also the case of the respondent that the RC & EO without con-
  sidering the objection filed by him passed the order dated 24th
  of January, 1981 declaring vacancy in the following manner: -
          "The file was put up. The report of RCI seen. On the spot
          the house was locked. No body was living. At the main
B         gate a Board of Shri Prasidh Narain Anand was there.
          Landlord has appeared. He has made no objection. It is
          clear that the disputed portion, which is western portion of
          the house is vacant because there is no objection from Sri     -
          S.N.Anand, hence vacancy is being notified. To be put up
c         on 31st January for argument on allotment and orders."
        3. A bare perusal of the aforesaid order of the RC & EO
  passed on 24th of January, 1981 would make it clear that the
  said order was passed without considering the objection of the
  respondent and by even mentioning that the respondent had no
D
  objection when it was all through his case that the objections              ...
  were submitted before the RC & EO. It is also an admitted po-
  sition that the alleged report of the RCI would only show that the
  disputed premises was locked at the time of inspection and it
  did not indicate that no body was residing there. Therefore, it
E was the case of the respondent that the fact that the disputed
  premises was locked cannot by any stretch of imagination mean
  that no body was residing in the disputed premises entitling the
  RC & EO to declare the same vacant for allotment.

F       4. On 20th of April, 1981, the respondent was heard and
  he was given time to file evidence. Thereafter, on 3rd of June,
                                                                         .
  1981, an order was passed directing the respondent to file evi-
  dence on that very date and the case was adjourned to 3rd of
  July, 1981 for arguments on vacancy. On 261h of September.
  1981, the respondent and the applicants were present and were
G
  heard and on 18th of November, 1981, the RC & EO passed an
  order of allotment in favour of the appellant. Against the afore-
  said order of allotment, the respondent filed a revision petition      "
  under Section 18 of the Uttar Pradesh Urban Buildings (Regu-
  lation of letting, Rent and Eviction) Act, 1972 before the Distric~
H
           R.K.SHUKLA v. SUDHRIST NARAIN ANAND                381
          (DEAD) BY L.RS. [TARUN CHATTERJEE,J.]

 Judge, Allahabad, which was, however, dismissed by order A
 dated 4th of March, 1982. Feeling aggrieved by the allotment
 order and the dismissal of the revision petition, the respondent
 filed a writ petition before the High Court of Judicature at
 Allahabad wherein a challenge was made to the allotment or-
 der and a prayer was made for quashing the same. By a judg- B
 ment and order dated 9th of November, 2004, the High Court
 had allowed the writ petition thereby setting aside the order
dated 181hof November, 1981 passed by the RC & EO allotting
the disputed premises in favour of the appellant and the order
dated 4th of March, 1982 passed by the District Judge, Allahabad    c
dismissing the revision directed against the said allotment or-
der. The High Court in the impugned judgment had also con-
sidered the validity of the order dated 24th of January, 1981,
declaring vacancy passed by the RC & EO and held the same
to be invalid. It is this judgment of the High Court, which is im- D
pugned in this appeal.
     5. We have heard the learned counsel for the parties and
examined the judgment of the High Court and the District judge
as well as the order of allotment passed by the RC & EO and
the order declaring vacancy and other materials on record.          E
Before we consider the rival submissions made on behalf of
the parties, we may, at this stage, record the findings of the
High Court while allowing the writ petition which are as follows:
      (i) The report of RGI had only shown that the main gate of
      the disputed premises was locked and that if found F
     appropriate, it was the duty of the RC & EO to call the
     parties to ascertain the correct position. This by itself did
     not amount to vacancy. There was nothing in the report to
     show that there was vacancy in the house of the premises
     in question.                                                  G
    (ii) The order dated 24th of January, 1981 declaring
    vacancy did not show that on that date, either the landlord
    or any applicant was present.
    (iii) It was not clear from the order sheet as to whether the   H
    382       SUPREME COURT REPORTS                    [2008] 8 S. C.R.


A         RCI had inspected the disputed premises and submitted
          his report on the direction of the RC & EO.
          (iv) The RCI report, the order sheet and any other
          document did not show that any notice was given to the
          landlord before inspection by the RC I or that he was made
B         aware of the RCI Report.
          (v) No order directing the landlord to file objection against    -.
          vacancy was passed.
          (vi) In view of sub-rule (3) of Rule 9 of the Rules framed
c         under the U.P.Act No. 13 of 1972 and the case reported
          in Yogendra TiwariVs. D.J. GorakhpurAIR 1984SC 1149,
          it was essential to issue notice to the landlord so that he
          could file release application if he so desired.
          (vii) From the orders dated 20.4.1981, 3.7.1981 and
D
          7.8.1981 on the order sheet, it would be clear that the RC
          & EO had heard the question of vacancy again.
          (viii) The landlord did not file any copy of the release order
          of 1952.
E
          (ix) Against the order dated 24.1.1981, declaring vacancy,
          although no challenge was made independently but the
          same was challenged by an application for amendment
          subsequently filed.

F         (x) The vacancy declaration order was bad in law for the         ~
          following reasons : (a) Inspection was made by the RCI
          without notice to the landlord. (b) there was no material or
          evidence which could justify declaration of vacancy. The
          RCI Report, even if it was correct, did not disclose
G         existence of vacancy; (c) Vacancy was declared without
          issuing notice to the landlord. (d) Vacancy declaration
          order was reconsidered by the RC & EO but no fresh               y

          order declaring or holding vacancy was passed by the RC
          & EO.
H         (xi) The allotment order was in violation of Section 16(9)
          R.K.SHUKLA v. SUDHRIST NARAIN ANAND                383
         (DEAD) BY L.RS. [TARUN CHATTERJEE,J.]

     of the Act inasmuch as while making the allotment order, A
     the allottee was not required to pay to the landlord advance
     presumptive rent of one month.
     6. On the aforesaid findings arrived at by.the High Court,
the writ petition was allowed. Before we proceed further, we
may also record the findings arrived at by the revisional court     B
which are as follows :-
     (i) Subsequent to the receipt of the Rent Control Inspector,
     a notice was formally sent to the landlord who had put in
     appearance on 3.1.1981 but he did not file any objection       c
     nor had sought time for filing objection.
     (ii) There was no objection filed by the landlord as to the
     vacancy before passing the order dated 24.1.1981.
     (iii) The finding of the RC & EO that the building in dispute D
   · was vacant was a finding of fact not vitiated by any error
     of jurisdiction.
     (iv) There was C!mple evidence on record to show that the
     landlord was residing at 103, Chowk Gangadas, Allahabad
     and the disputed premises was vacant. The name of the          E
     landlord had been entered in the electoral roll consistently
     from the year 1966 to year 1980.
     (v) The affidavit of Smt. Prabha Shukla, wife of the
     appellant to the effect that the disputed premises was let
     out to different university students was not contradicted by   F
     the landlord.
     (vi) All the persons who had applied for allotment had
     alleged that the disputed premises was formerly in
     occupation of one Sri S.K.Misra but even in the objection G
     purported to have been filed on 24.1.1981, there was no
     averment that the building in dispute was not occupied by
     S.K.Misra or any other person.
     These were the findings made by the revisional court while
                                                                    H
           .- •, ·.: ·- t.·_
    384       SUPREME COURT REPORTS                   [2008) 8 S.C.R.


A   rejecting the revision petition filed by the respondent.              •
          7. Keeping in mind the findings arrived at by the revisional
    court and the High Court, let us now deal with the submissions
    of the learned counsel for the parties.

B       8. The learned senior counsel for the appellant Mr. Gupta
  submitted before us that the High Court was not justified in in-
  terfering with the order dated 24th of January, 1981 declaring
  vacancy, in the exercise of its writ jurisdiction under Article 226
  of the Constitution. In this context, it was brought to our notice
c that during the pendency of the writ petition before the High
  Court, after almost 20 years, on 18th of February, 2002, an ap-
  plication praying for a~endment of the writ petition for challeng-
  ing the order dated 24th of January, 1981 by which the vacancy
  was declared was filed, which was allowed by the High Court
  by its order dated 22nd of May, 2002. Against this order of the
0
  High Court, the appellant had filed an application for recall of
  the said order but the same was also rejected by the High Court
  by its order dated 141h of February, 2003. Aggrieved by the or-
  ders of the High Court, the appellant had filed a special leave
  petition before this court challenging the aforesaid orders. This
E court had allowed the special leave petition by setting aside the
  orders dated 22nd of May, 2002 and 14th of February, 2003 in
  the following manner: -
          "On going through the materials on record and keeping in
F         view the limited notice we ordered when the special leave
          petition initially came up for orders relating to admission,
          the fact that has to be kept into consideration is not even
          so much as is to what really transpired on that day in court
          but how best the situation should be solved and the
          interests of justice could be served. On that view of the
G
          matter, we are fully satisfied that the orders of the High
          Court under challenge are to be set aside and convinced         t
          that the interest of justice can be better served only if the
          orders dated 22.5.2002 and 14.02.2003 are set aside
          and the Civil Misc. Writ Petition No. 4621 of 1982 is
H
                  R.K.SHUKLA v. SUDHRIST NARAIN ANAND                   385
                  (DEAD) BY L.RS. [TARUN CHATTERJEE,J.]

              restored to its file to be disposed of afresh on merits and      A
              in accordance with law, after hearing both the parties and
              giving them due opportunity.
              Having regard to the further fact that the writ petition is of
              the year 1982, in the interest of justice and in order to
              avoid any further delay, the High Court may ensure the           B
              disposal of the matter as expeditiously as possible, atleast
              within three months from the date of receipt of a copy of
              this order.

              The appeals are disposed of on the above terms. No               c
              costs."

               9. The learned senior counsel for the appellant Mr. Gupta,
         therefore, sought to argue before us that by virtue of the order
         passed by this court in the aforesaid special leave petition, set-
         ting aside the aforementioned two orders of the High Court, the       D
    ""   fact of exister..ce of vacancy had attained finality. The learned
         senior counsel thus submitted that it was not open to the High
         Court to adjudicate upon the question of vacancy after the deci-
         sion of this court and also in view of the concurrent findings of
         fact of the RC &EO and the revisional court. The learned senior       E
         counsel for the appellant Mr. Gupta also sought to argue that it
         was not open to the High Court to reconsider the question of
         vacancy which had been fully answered by the RC & EO and
         affirmed by the revisional court in view of the decision of this
~



    ,.   court in Ganpat Roy and others Vs. A.D.M. and others [(1985)          F
         2 sec 307], and that the High Court was not justified in not
         following the dictum of Ganpat Roy's case merely because it
         had been referred to a larger bench.
               10. These submissions of the learned senior counsel for
         the appellant were hotly contested by the learned senior coun-        G
         sel appearing on behalf of the respondent.
     +
               11. After considering the rival submissions of the parties,
         we may note that the question whether the respondent was given
         sufficient opportunity to object and lead evidence to disprove
                                                                               H
    386       SUPREME COURT REPORTS                     (2008] 8 S. C. R


A   the fact of vacancy was taken into consideration by the High
    Court and from the materials on record and the evidence ad-
    duced by the parties, it was open to the High Court, even in the
    exercise of its power under Article 226/227 of the Constitution,
    to come to a finding of fact that such opportunity was not at all
B   given to the respondent. Even assuming that the High Court
    was wrong in coming to a conclusion of fact that no opportunity
    was given to the respondent to file objections, then also, we are       1
    not inclined to interfere with the judgment of the High Court in
    the exercise of our discretionary power under Article 136 of the
c   Constitution for the reasons stated hereinafter.

        12. First, the finding of the High Court, as noted herein
  earlier, in clause (vii) viz., that from the orders dated 2Q1h of April
  1981, 3rd of July, 1981 and 7tti of August, 1981 on the order
  sheet, it was clear that the RC & EO had heard the question of
D vacancy again is very crucial. Having done so, it was impera-
  tive that the RC&=o should have passed a fresh order to +he
  effect whether the disputed premises was vacant or not. How-
  ever, in a rather peculiar and strange manner, the RC&EO pro-
  ceeded and fixed a date for passing of the allotment order on
E the basis of the order dated 241h of January, 1981. We may                    •
  note at this stage that the provisions regarding allotment of va-
  cant buildings are governed by Sections 12, 16 and 34(8) of
  the U.P. Urban Buildings (Regulation of Letting, Rent and Evic-
  tion) Act, 1972 (in short "the Act") and the rules framed under
F the said Act. The passing of the allotment order without declar-
  ing vacancy was a gross error committed by the RC&EO be-
  cause under the scheme of the provisions of the act, the pre-
  liminary step was to declare a vacancy, which, in our view, was
  not done and even if done, the same was not in a bonafide
G manner. The RC&EO should have at least conveyed their deci-
  sion on that point.
          13. Secondly, the RCI and the RC&EO while submitting
    the report and passing the order declaring vacancy respectively
    did not adhere to the prov1s1ons governing the allotment of va-
H   cant buildings, as enumerated herein above We fir~d from record
             R.K.SHUKLA v. SU DH RIST NARAIN ANAND              387
             (DEAD) BY L.RS. [TARUN CHATTERJEE,J.]

    that no neighbour was enquired to ascertain vacancy, much less    A
    two neighbours as mandated by the rules.

          14. Thirdly, the finding of the High Court that simply be-
    cause the gate was locked, it was no ground to conclude that
    the disputed premises was vacant cannot be ignored .. The
    learned senior counsel for the appellant contended that in this 8
    case, a deemed vacancy had occurred and ingredients of Sec-
    tion 12 of the Act which deals with Deemed vacancy of build-
    ings were satisfied. As rightly pointed out by the High Court in
    the impugned judgment, the fact that the gate was locked can-
    not be a conclusive proof to hold that the respondent had re- C
    moved his effects there from or that he had allowed it to be
    occupied by any person who was not a member of his family or
    even that he and members of his family had taken up residence
    elsewhere. In our view, the question of deemed vacancy cannot
    arise at all in view of the facts, which would be evidenced from D
    the order of the RC & EO and the report of the RCI. From the
    said order of the RC & EO, it does not appear that the respon-
    dent had substantially removed his effects from the disputed
    premises. As stated hereinabove, the fact of the gate being
    locked and the absence of the respondent at the time of the E
     inspection would not mean that substantial removal of effects of
    the respondent had been made. In view of our discussions made
     hereinabove, we are not of the view that any deemed vacancy
     had occurred and on this ground, we are not inclined to inter-
    fere with the judgment of the High Court.                         F

           15. As regards the objection raised by the learned senior
    counsel for the appellant to the effect that the High Court should
    have followed the dictum in Ganpat Roy's case (Supra) th~ same
    is not acceptable. At that time, the matter was referred to a larger
    bench. The decision was, therefore, debatable and not conclu- G
    sive. But now all doubts regarding the dictum in Ganpat Roy's
~   case [supra] have been set at rest by a decision of this court in
    Achal Mishra Vs. Rama Shanker Singh and ors. [(2005) 5
    SCC 531], wherein this court in Para 14 observed as under: -
                                                                      H
    388       SUPREME COURT REPORTS                    [2008] 8 S.C.R.

                                                                           I.

A         "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
B         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 case
          which has disapproved the ratio of the decision in Tirlok
          Singh and Co. cannot be understood as laying down that
c         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
D
          High Court, in our view, has misunderstood the effect of
          the decision of this court in Gan pal Roy 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
E         corresponding either to section 97 or to section 105(2) of
          the Code of Civil Procedure, 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 Kunj La ta V. Xth ADJ, that
F         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 successful challenge to the allotment
          order itself. In fact, the person aggrieved by the order
G         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
H
             R.K.SHUKLA v. SUDHRIST NARAIN ANAND                 389
             (DEAD) BY L.RS. [TARUN CHATTERJEE,J.]

'        approach the High Court. It would really be a case of A
         election of remedies."
          16. In the present case; the High Court had permitted the
    respondent to amend the writ petition whereby he sought to
    challenge the order dated 241h of January, 1981 declaring va-
    cancy. Such order of the High Court allowing the amendment B
    was challenged before this court and this court had remanded
    the matter to the High Court setting aside'such order request-
    ing the High Court to decide the writ petition afresh. Since this
    Court had remanded the matter to the High Court for a fresh
    decision on the question whether the amendment should be al- c
    lowed or not along with the merits of the writ petition, it cannot
    be said that the High Court was in error after the order of this
    court to allow the application for amendment on facts as this
    court did not decide the merits as to whether the application for
    amendment should be allowed or not. We have already quoted D
    hereinearlier the substantial portion of the order of this court in
    that special leave petition and from the same, it is clear that it
    was passed without going into the merits of the orders allowing
    the application for amendment of the writ petition and this court
    had simply set aside the said orders of the High Court remand-· E
    ing the matter to the High Court for disposal of the same afresh
    and in accordance with law after hearing both the parties and
    after giving them due opportunity. The High Court by the im-
    pugned judgment had simply followed the directions made by
    this court in the order passed in that special leave petition, as F
    quoted hereinearlier, and came to a conclusion that the order
    dated 241h of January, 1981 declaring vacancy was bad in law.
    That apart, it is clear from the decision of this court in Achal
    Mishra's case [supra] that it was open to the respondent to cha I-
    lenge the order declaring vacancy in the writ petition against
                                                                        G
    the allotment order even though the said order was not chal-
    lenged independently there and then. Therefore, the High Court
'   was fully justified in considering the validity of the vacancy dee-
    laration order while hearing the writ petition against the allot-
    ment order. In view of our discussions made hereinabove, we
                                                                        H
    390       SUPREME COURT REPORTS                     (2008] 8 S.C.R.


A   are, therefore, of the view that since this court had not decided
    that special leave petition on merits, it cannot be said that the
    vacancy declaration order had attained finality. Therefore, the
    High Court was fully justified in considering the question of va-
    cancy, which was a core issue in the writ petition because if the
B   vacancy declaration itself was bad in law, the consequent allot-
    ment order which was passed cannot be said to be not in viola-
    tion of Section 16 of the Act. In any view of the matter, the ques-
    tion regarding vacancy was a core issue in the writ petition and
    in our view, the High Court, on consideration of the materials on
c   record was entitled to look into it by invoking its writ jurisdiction
    under Article 226 of the Constitution. Since the order passed
    by the High Court was based on consideration of facts, which
    cannot be interfered with except in exceptional cases, we do
    not find any reason to interfere with the same under Article 136
    of the Constitution of India.
0
          17. There is another aspect of this matter for which, in the
    facts and circumstances of this case, we would not exercise
    our discretionary power under Article 136 of the Constitution.
    The vacancy declaration order and the consequent allotment in
E   favour of the appellant was made in the manner indicated herein
    earlier and the appellant stormed into the disputed premises
    more than two decades back and started enjoying the same
    without paying a single penny in respect of the same. It was only
    after the judgment of the High Court that he had deposited the
F   amount as directed by the High Court. Therefore, we do not find
    any reason to interfere with the impugned judgment of the High
    Court under Article 136 of the Constitution in the facts and cir-
    cumstances of the present case.
          18. For the foregoing reasons, we do not find any merit in
G this appeal. The appeal 1s thus dismissed. There will be no or-
  der as to costs The appellant is, however. granted time to va-
  cate the disputed premises by 30 1h of November. 2008 subject
  to filing an usual undertaking before this court within one month
  from this date.
H B.B.B.                                       Appeal dismissed.