Anurag Kumar Vs.
Mohan Lal & ANR.  INSC 159 (27 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.446 OF 2009 (Arising out
of SLP(C) NO. 550 of 2009) Anurag Kumar ........ Appellant Versus Mohan Lal
& Anr. ........Respondents
appeal is directed against the orders passed by the High Court of Judicature at
Allahabad in Civil Miscellaneous Writ Petition No. 47199 of 2007 dated
24.11.2008. By the impugned order, the court has allowed the writ petition by
quashing the order dated 01.09.2007 passed by the Additional District Judge,
Court No.1, Meerut and further has remanded the matter to the Revisional
Authority to pass fresh order in the light of observations made after affording
sufficient opportunity to the parties.
appellant is the owner of a Shop No. 570. Budhana Gate, Meerut, where
respondent no.1 is the occupant on monthly rent of RS. 400.
On 23.04.1999, an
application was made by respondent no.2 before the Rent Control and Eviction
Officer stating that vacancy be declared as the respondent no.1 has obtained
allotment order by the appellant by concealing the fact that he is already in
occupation of three other shops.
Competent Authority after obtaining a report from the Rent Control Inspector
and after having heard the parties vide its order dated 28.09.2005 has observed
that as the respondent no.1 has obtained the possession of the disputed shop by
playing fraud, and therefore, the allotment of the disputed shop happens to be
nullity and is void, and thus the said shop is liable to be declared vacant.
the respondent no.1 nor the appellant challenged the order dated 28.09.2005,
thus it has become final. Appellant after declaration of vacancy made an
application for release of the disputed shop before the Delegated Authority.
The Delegated Authority after considering the genuine and bonafide need of the
appellant allowed the release application in favor of the petitioner under sec.
16 of the act, vide its order dated 30.11.2005.
no.1 being aggrieved by the order filed a revision petition before the
Revisional Authority on the ground that no question of release of the disputed
shop in favor of appellant arises as the said shop is not vacant and had been
duly and properly allotted to the respondent no.1. However, respondent no.1 did
not challenge the order of vacancy. Revisional Authority again went into
details of the case and vide its order dated 01.09.2007, declared that the property
in question was not vacant and was in occupation of the respondent no.1 as a
valid allotee and the allotment in favor of respondent no.1 has not been
cancelled in accordance with provisions of law, therefore the impugned order is
liable to be set aside.
aggrieved by the order dated 01.09.2007, appellant filed a Civil Misc. Writ
Petition before the High Court for quashing the said order passed by the
High Court, allowed the writ petition vide its order dated 24.11.2008, quashing
the order passed by the Revisional Authority dated 01.09.2007 and has remanded
the matter to the Revisional Authority to pass an appropriate order, on the
ground that Revisional Authority has failed to take into consideration the fact,
that, if the order of vacancy has become final and it has never been challenged
3 by aggrieved person then the question of allotment or question of release in
favour of the landlord cannot be raised by the person concerned without
challenging the order of vacancy unless and until the premises in dispute is
declared vacant by an authority competent to do that is set aside. Aggrieved by
this order the appellant is before us in this appeal.
High Court while exercising its discretionary and extraordinary jurisdiction
under Article 226 has remanded the matter back to the Revisional Authority to
pass an appropriate order with certain directions after going into the merits
of the case.
basic principle of Article 136 is that if a litigant feels that injustice has
been done by a Court or any other body charged with administration of justice,
there is one superior court he may always approach and which, in its
discretion, may give him special leave to appeal so that justice may be done:
(1996) 1 SCJ 786, 803.
is not possible to define with any precision, the limitations on the exercise
of the discretionary jurisdiction vested in the Supreme Court by the
constitutional provision made in Article 136. The limitations whatever they be,
are implicit in the nature and character of the power itself. It being an
exceptional and over-riding power, naturally, it has 4 to be exercised
sparingly and with caution and in special and extraordinary situations.
is well settled that though special leave is granted, the discretionary power
which is vested in the Court at the stage of the special leave petition
continues to remain with the Court even at the stage when the appeal comes up
for hearing and when both sides are heard on merits in the appeal: (1999) 2 SCC
view of above, in our opinion although leave has been granted but we do not
find a need to exercise the discretionary powers under Art.
136. The matter has
already been discussed by various Authorities and the same has been remanded
back by the High Court and as such no extraordinary situation arises. It will
be proper that the Revisional Authority decides the matter again.
without going into the merits of the case, we dismiss the appeal. However, we
reserve liberty to the appellant to raise all such contentions which are
available to him including certain contentions raised in this appeal before the
Revisional Authority. We direct the Revisional Authority to adjudicate upon the
matter independently untrammeled by the observations and orders made by the
appeal is dismissed accordingly. No order as to costs.
[ TARUN CHATTERJEE ]
[ H.L. DATTU ]
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