- (1.) RAJESH Tandon Heard Sri A. Rab, Advocate for the petitioner, Mr. Manoj Kumar Sharma and Sri K. N. Joshi, Advocate for the respond ent no. 1 and Standing Counsel for the respondents no. 2 and 3.
(2.) BY the present writ petition, the petitioners have prayed for a writ of certiorari quashing the order of vacancy as well as release dated 17th August 2005 and 13th December, 2005 passed by the Rent Control and Eviction Officer in Case No. 10 of 2003 Smt. Jasvinder Kaur Vs. Smt. Majeedan and others (Annexures 17 and 18 to the writ peti tion) as well as the order dated 6th May, 2006 passed by the revisional Court/dis trict Judge, Dehradun in R. C. R. No. 2/ 2006 Atique Ahmed Vs. Jasvinder Kaur and others. Briefly stated, according to the case of the petitioners, they are tenants of shop No. 26 Landhoure Bazar, Mussoorie along with a small portion in the premises itself for residential pur poses. Petitioners have submitted that their father had two wives; namely Smt. Majeedan and Smt. Masoodi. Smt. Masoodi who used to live in village had no issue, whereas petitioner no. 1 according to him, is the eldest son of the late Rafique Ahmed and has become major in the year, 2003. However, peti tioners no. 2 and 3 are still minors. In the year, 1993, father of the petitioner died leaving behind the peti tioners, Smt. Majeedan and Smt. Masoodi.
(3.) PETITIONERS have submitted that looking to the family members, who were minors at that time, their cousin Mohd. Khurseed assisted them in the business of barber and now petitioner no. 1 is looking after the said business. Proceedings for vacancy were started on an application preferred before the Rent Control and Eviction Officer for release of the accommodation on the ground that the same is vacant. A perusal of the application U/s 16 (1) (b) shows that af ter the death of Rafique Ahmad in the year, 1993, Smt. Majeedan came to Mussoorie and paid the rent up to 1994 and removed entire house-hold effects and from 1995, Mohd. Khursheed has started business, when in point of fact, Mohd. Khurseed is not a member of the family and as such, the accommodation has fallen vacant and the same has been occupied by Mohd. Khurseed, who is an unauthorized occupant and as such the landlord has prayed for declaring the va cancy and for release of the accommo dation. On the aforesaid application, an inspection was made and the report was submitted on 30th August, 2001. The same is quoted below:- Hindi 7. As will appear from the aforesaid report that the premises has been occu pied by Mohd, Khurseed. There is also an affidavit of Mohd, Khurseed himself, who has stated that he is looking-after the children of late Rafique Ahmed. The affidavit was filed by Sri Atique Ahmed as well. In paragraph 6 of the affidavit, it has been stated that the electricity connection is in the name of Mohd. Khurseed and the bills are being paid by him as well. Mohd. Khurseed has also paid the rent on 30th June, 2003. The affidavit of Vikram Verma is also on the record, who has deposed that Mohd. Khurseed is doing the entire work. Simi lar affidavit has been filed by one Mr. Chandra Bhan. Paragraph 3 of the aforesaid affidavit is quoted below : Hindi 8. Mohd. Khurseed has also filed an affidavit dated 28th April, 2005. He has admitted that he has applied for elec tric connection. Paragraph 6 to that ef fect is quoted below : Hindi 9. On 15th December, 2005 an in spection was made by the SDM, where Mohd. Khurseed has been found to be the tenant of the shop in question. 10. The Rent Control and Eviction Officer on the basis of the aforesaid findings on the record has found that in the year, 1995, the shop as well as the residential portion has been occupied by Mohd. Khurseed, who is not a member of the family and as such the accom modation was deemed to be vacant. The findings of the Rent Control and Evic tion Officer is quoted below : Hindi 11. After the declaration of the va cancy, the premises was released in favour of the landlord on 13th December, 2005 U/s 16 (1) (b) of U. F Act No. 13 of 1972. The petitioner has preferred a revision before the District Judge, who has recorded a finding that Mohd. Khurseed being not a member of the family is not covered under Section 3 (g) of the UP. Act No. 13 of 1972. The revisional Court has also relied upon the admission of Mohd. Khurseed to the following effect : "as discussed earlier, Khurseed Ahmed himself has admitted in his affidavit that he came from his vil lage to Mussoorie after the death of original tenant in order to extend his help to the minor children of origi nal tenant. Khurshid Ahmed has not mentioned his any other place of resi dent at Mussoorie. It is not the case of Khurshid Ahmed that he himself has got some accommodation of his own or has obtained any rental ac commodation for his residence at Mussoorie. In the affidavit it self (pa per number 19/1) Khurshid Ahmad has given his residential address as 36, Labour Bazar, Mussoorie i. e. the address of the disputed premises. This clearly shows that Khurshid Ahmed is residing in the rear portion of the disputed premises. Landlady has her affidavit in unambiguous term asserted that Khurshid Ahmed. is residing in the rear portion of the premises in question along with his family members. Landlady as annexure of her affidavit has filed copy of the application which Khurshid Ahmed moved for an elec tric connection in the premises in question. Since for an electric con nection in a tenanted portion. , con sent of landlord is required, else the application has to file an indemnity bond. The landlady as annexure of her affidavit has filed the indemnity bond filed by Khurshid Ahmed. In both these documents annexure 3 and 4 of affidavit paper Number 211 2. Khurshid Ahmed claiming himself to be the tenant of the premises in question filed application for electric connection as well as the indemnity bond. In both these document Khurshid Ahmed has given his ad dress of the residence etc. i. e. of premises in question. " 12. As will appear from the findings recorded by the revisional Court that Mohd. Khurseed himself has admitted this fact that indemnity bond has been filled up by Mohd. Khursheed and the address of the disputed premises has been given by him addressing himself to be the tenant of the disputed premises. 13. A counter affidavit has also been filed by the respondent no. 3 and in the counter affidavit, affidavit of Smt. Jasvinder Kaur has been annexed. She has stated in paragraph 8 as under : Hindi 14. In the affidavit of Mr. Atique Ahmed, he has also stated that he has deposited the rent from 1994 upto 2003. Relevant portion of affidavit of Atique Ahmed is quoted below : Hindi 15. Paragraph 13 of the affidavit of Jasvinder Kaur dated 03-02-2005 estab lishes the subletting on the part of the petitioners in favour of Mohd. Khurseed. Paragraph 13 is quoted below : Hindi 16. There is also on record, the re ceipt of electric connection granted by the electricity board showing the metre in favour of Mohd. Khurseed and in demnity bond showing him the tenant of the property. Some detail is quoted be low : Hindi 17. A perusal of the aforesaid docu ments fully establishes that the accom modation by fiction of law shall be deemed to be vacant. Section 1 2 (1 ) (a) to (c) reads as under : "12. Deemed vacancy of building In certain cases.- (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the build ing or a part thereof if- (a) he has substantially removed his effects therefrom, or (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 build ing, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. " 18. The law is very well settled that there is a restriction for occupation with out any allotment or release as con tained U/ss 11 and 13 of the U. P. Act No. 13 of 1 972. The same is quoted below : "11. Prohibition of letting with out allotment order.- Save as here inafter provided, no person shall let any buildings except in pursuance of an allotment order issued under Sec tion 16. 13. Restrictions on occupation of building without allotment or re lease.- Where a landlord or tenant ceases to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf, or other wise than under an order of allotment or release under Section 16, and if a person so purports to occupy it, he shall, without prejudice to the provi sions of Section 31, be deemed to be an unauthorized occupant of such building or part. " 19. A rejoinder affidavit has also been filed by the petitioners reiterating the facts mentioned in the writ petition. However, there was no denial of the elec tricity connection in favour of Mohd. Khurseed. 20. Sri A. Rab, counsel for the pe titioners has referred Parvinder Singh Vs. Renu Cautam and others, AIR 2004 SC 2299, where it has been held as under: "rent Control laws usually protect the tenant so long as he may himself use the premises but not his transferee inducted into possession of the premises, in breach of the contract or the law, which act is often done with the object of the illegitimate profiteering or rack renting. The de feat the provisions of law, a device is at times adopted by unscrupulous tenants, and sub-tenants of bringing onto existence a deed of partnership which gives the relationship of tenant and sub-tenant an outward appear ance of partnership while in effect what has come into existence is a sub tenancy or parting with possession camouflaged under the cloak of partnership. . . . . . . . . . . . Parting with pos session or control over the tenancy premises by tenant in favour of third person would amount to the tenant having transferred his right under the lease' within the meaning of Section 14 (2) (i) (a) of the Act. " 21. The Apex Court has also ob served in the aforesaid judgment that in such matters all that is needed to be done is its appreciation and to draw in ference. The inferences are that Mohd. Khurseed has entered into an agreement with the electricity department by fulfill ing indeminity bond and admittedly he is residing and runs the shop and there fore, by fiction of law, the accommoda tion shall be deemed to be vacant within the meaning of Section 12 (1) (a) and (b) of U. P Act No. 13 of 1972. 22. In Ganpat Roy Vs. Add/. District Magistrate, ARC 1985 (2) Page 73, the Apex Court has explained the word 'fic tion' which is fully applicable in the present case and by fiction of law, therefore, the accommodation shall be deemed to be vacant. The observation of the Apex Court is quoted below : "section 13 provides that where a landlord or tenant ceases to occupy a building or part thereof, no person is to occupy it in any capacity on his behalf or otherwise than under an order of allotment or release under Section 16. Section 15 casts a duty on every landlord or tenant to give intimation of vacancy to the District Magistrate. " 23. In Madhu Gopal Vs. VI Addl. District Judge, AIR 1989 SC 155, the Apex Court has observed as under : "7. In any event, it is a well-settled principle of construction that unless clearly indicated, a proviso would not take away substantive rights given by the Section or the sub-section. A landlord has a right to the property. The Section should not be so con strued as to defeat the right to pos session of property in appropriate cases unless the intention of the Leg islature is manifest. We find no such clear intention in the fact of this case. 8. We are, therefore, of the opinion that the High Court came to the cor rect conclusion that a landlord, even though not in actual physical posses sion at the time of the possession of the property, can ask for review of the order of release or allotment. It must be borne in mind that this view was also expressed by Mr. Justice N. D. Ojha, as our learned brother then was, in his judgment in Niren Kumar Das v. The District Judge, Pilibhit, AIR 1977 All 47. We agree with that interpretation. " 24. I have already taken a view in Gurnaam Singh vs. Rent Control and Eviction Officer 2003 (2) ARC Page 433 2004 (1) U. D. , 60. relying upon the judg ment of Apex Court in Siemens Engi neering and Mfg. Co. v. Union of India, AIR 1976 SC Page 1785 and Union of India v. M. L. Capoor, AIR 1974 SC 87 at Page 97 and that the deeming clause fully applies to the present case and the findings recorded by the two courts below holding that the accommodation is vacant cannot be interfered U/a 226 and 227 of the Constitution of India. 25. In Harish Tandon Vs. Addl. Dis trict Magistrate Allahabad, U. P. and oth ers Supreme Court and Full Bench Rent Cases 1995 Page 123, where it has been held as under : "13. The role of a provision in a stat ute creating legal fiction is by now well-settled. When a Statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the Court has to examine and ascertain as to for what purpose and between what persons such a statu tory fiction and it has to be carried to its logical conclusion. In the well known case of East End Dwellings Co. Ltd. v. Finsbury Borough Coun cil, (1952) AC: 109 (B), Lord Asquith while dealing with the provi sions of the Town and Country Plan ning Act, 1947, observed : "if you are bidden to treat an imagi nary State of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the conse quences and incidents which, if the putative, State of affairs had in fact existed, must inevitably have flowed from or accompanied it. . . . . . . . The statute says that you must imagine a certain State of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable cor ollaries of that State of affairs. " That statement of law in respect of a statutory fiction is being consist ently followed by this Court. Refer ence in this connection may be made to the case of State of Bombay v. Pandurang Vinayak and others, AIR 1953 SC 244 :1953 SCR 773. From the facts of that case it shall appear that Bombay Building (Control on Erection) Ordinance, 1948 which was applicable to certain areas mentioned in the schedule to it, was extended by a notification to all the areas in the province in respect of buildings in tended to be used for the purposes of cinemas. The Ordinance was re pealed and replaced by an Act which again extended to areas mentioned in the schedule with power under sub section (3) of Section 1 to extend its operation to other areas. This Court held that the deemed clause in Sec tion 15 of the Act read with Section 25 of the Bombay General Clauses Act has to be given full effect and the expression 'enactment in the Act will cover the word 'ordinance' occur ring in the notification which had been issued. In that connection it was said : "the corollary, thus, of declaring the provisions of Sec. 25, Bombay Gen eral Clauses Act, applicable to the re peal of the ordinance and of deem ing that ordinance an enactment is that, whatever, the word "ordinance"occurs in the notification, that word has to be read as an en actment. " 14. In the case of Chief Inspector of Mines and another etc. v. Karam Chand Thapar etc. , AIR 1961 SC 838: 1962 (1) SCR 9, it was said : "were these regulations in force on the alleged dated of contravention ? Certainly, they were, in consequence of the provisions of Section 24 of the General Clauses Act. The fact that these regulations were deemed to be regulations made under the 1952 Act does not in any way affect the posi tion that they were laws in force on the alleged date of contraventon. The argument that as they were "regula tions" under the 1952 Act in conse quence of a deeming provision, they were not laws in force on the alleged date of contravention is entirely M/s conceived. " 15. In the case of M/s. J. K. Cotton Spinning and Weaving Mills Ltd. and another v. Union of India and others, AIR 1988 SC 191 : 1988 (1) SCR 700, it was said : "it is well-settled that a deeming pro vision is an admission of the non-ex istence of the fact deemed. There fore, in view of the deeming provi sions under Explanations to Rs. 9 and 49, although the goods which are produced or manufactured at an in ter-mediate stage and, thereafter, consumed or utilized in the integrated process for the manufacture of an other commodity is not actually re moved shall be construed and re garded as removed. The Legislature is quite competent to enact a deem ing provision for the purpose of as suming the existence of a fact which does not really exist. " 16. Recently in the case of M. Venugopal v. The Division Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and another, JT 1994 (1) SC 281:1994 (2) SCC 323 after referring to the case of East End Dwellings Co. Ltd. v. Finsbury Borough Council (supra), it was said that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and inci dents which, must inevitably have flowed. 17. When sub-section (2) of Section 12, provides that whenever a tenant carry ing on business in a building admits a person, who is not a member of his family, as a partner, the tenant shall be deemed to have ceased to occupy the building, full effect has to be given to* the mandate of the Legislature. There is no escape from the conclusion that such tenant has ceased to occupy the building. No discretion is left to the Court to enquire or investigate as to what was the object of such tenant while inducting a person as partner who was not the member of his fam ily. It can be said that the aforesaid statutory provision requires the Court to come to the conclusion that by the contravention made by the tenant such tenant has ceased to occupy the build ing. The framers of the Act have not stopped only at the stage of Section 12 (2), but have further provided in Section 25, Explanation (i) another le gal fiction saying that where the tenant ceases to occupy the building within the meaning of sub-section (2) of Sec tion 12, 'he shall be deemed to have sub-let that building or part'. In view of the three deeming clauses intro duced in sub-section (2) of Section 12, sub-section (4) of Section 12 and Ex planation (i) to Section 25, no scope has been left for the Courts to exam ine and consider facts and circum stances of any particular case, as to what was the object of admitting a person who is not the member of the family, as partner and as to whether, in fact, the premises or part, thereof, have been sub-let to such person. 18. It was then urged that if such strict interpretation is given to sub section (2) of Section 12, then simi lar interpretation should be given to Section 12 (1) (b) and to Section 12 (3) of the Act which prescribes other conditions under which the tenant shall be deemed to have ceased to occupy the 0 building under his ten ancy. It was pointed out that sub-sec tion (1) (b) of Section 12, says that a landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part, thereof, if he has allowed it to be occupied by any person who is not a member of his family. . . . . . . . . . . . . . . . . . . If the landlord or the tenant allows any person, who is not a member of the family within the meaning of the Act to occupy the premises, with the object that such person shall occupy such premises in his own rights, in that even, clause (b) of sub-section (1) of Section 12 shall be attracted. " 26. In Surya Dev Rai Vs. Ram Chander SCC 2003 Vol-6 675, the Apex Court has held as under : "superuisory jurisdiction under Article 227 of the Constitution is exer cised for keeping the subordinate courts within the bounds of their ju risdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exer cise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and fail ure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction". "be it a writ ofcertiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following re quirement are satisfied: (i) The error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter dis regard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. " "a patent error is an error which is self-evident i. e. which can be per ceived or demonstrated without in volving into any lengthy or compli cated argument or a long-drawn process of reasoning. Where two in ferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. " "the power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judi cial conscience of the High Court dic tates it to act lest a gross failure of justice or grave injustice should oc casion. Care, caution and circum spection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or correction is. yet capable of being corrected at the conclusion of the proceedings is an appeal or revision preferred there against and entertaining a petition in voking certiorari or supervisory juris diction of the High Court would ob struct the smooth flow and or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected 1 at that every mo ment, may become incapable of correction at a letter stage and refused to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the Lis. " "the High Court in exercise of cer tiorari or supervisory jurisdiction will not convert itself into a court of ap peal and indulge in reappreciation or evaluation of evidence or correct er rors in drawing inferences or correct errors of mere formal or technical character. " 27. Relying upon the Judgment of Surya Dev Rai Vs. Ram Chandra 2003 (6) SCC 675, the Apex Court in Ranjeet Singh Vs. Ravi Prakash 2004 (3) SCC 682, has held as under : "as to the exercise of supervisory ju risdiction of the High Court under Article 227 of the Constitution of In dia also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulg ing in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. " 28. The writ petition fails and is dis missed. However, the petitioners pray for time to vacate the premises. The re spondent no. 2 is allowed time up to 31st December, 2006 to vacate the premises provided : (A) undertaking is given by the peti tioner before the appropriate au thority by 15th August, 2006 to vacate the accommodation by 31st December, 2006. (B) the petitioners shall pay the damages for use and occupation by 15th August, 2006 along with the undertaking to pay the damages upto date. (C) failing which liberty is given to the respondent no. 3 to execute the order forthwith. 29. Writ petition lacks merit and is dismissed. No order as to costs. .;