Amir Chand Rustagi vs M.K. Rai And Ors.
1970 Latest Caselaw 246 Del

JUDGMENT

S.N. Andley, J.

(1) The petitioner has invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for quashing the order dated 27/07/1970 of the Competent Authority(Mr. M.K. Rai) constituted under the Slum Areas (Improvement & Clearance) Act, 1956, hereinafter referred toas the 'Slums Act. By the impugned order the Competent Authority granted permission to respondents nos.2 and 3, hereinafter referred to as "The Respondents", toexecute the order of eviction that had been passed againstthe petitioner.

(2) The respondents are the owners of a two storeyedhouse bearing municipal no. 1313, Vaidwara Maliwara, in ward No. V in Delhi. The petitioner has beenin occupation of the first floor of this house as a tenantfor over 22 years. In 1962, the respondents filed a petition under section 14 of the Delhi Rent Control Act,1958 against the petitioner for his eviction from the tenancy premises on the ground of bonafide requirement.An order of eviction was passed against the petitionerby the Rent Controller on 3/12/1964 and the petitioner failed to get this order set aside in the appealfiled by him before the Rent Control Tribunal.In 1966, the respondents applied under Section 19 ofthe Slums Act to the Competent Authority for permission to execute the aforesaid order of eviction. TheCompetent Authority refused to grant the permissionby its order dated 4/10/1967. The CompetentAuthority came to the conclusion that the petitionerhad an income of Rs. 125.00 as his salary from M/s.Devi Sahai Madan Lal and his son Kishan Chandhad an income of Rs. 150.00 per mensem as salary fromM/s. Nathu Ram Ram Narain where he was employed.The Competent Authority concluded that the aggregate income of Rs. 275.00 per mensem of the petitionerand his son Kishan Chand was not sufficient for a familyof four members. The appeal filed by the respondentswas dismissed on 17/08/1968 by the appellateauthority.

(3) After a few months, on 18/04/1969 the respondentsfiled a fresh application under Section 19 of the SlumsAct before the Competent Authority alleging that the petitioner was able to obtain other residential accommodation, out of slums, as there had been a considerable increase in his means. In reply, the petitioneradmitted that although his income and the income ofhis son had increased, he had become poorer as the pricesof necessities had increased at a higher rate. In supportof the application, respondent no. 3 filed an affidavit on 15/10/1969 stating that the salaryof the petitioner and his son had gone up to Rs. 200.00per month each and there was an increase of Rs. 125.00per month in their aggregate income. It was furtheralleged that the income of the petitioner's family wasRs. 450, per mensem and there was a saving of Rs. 100.00per mensem as the petitioner's son had liquidated the loanwhich had been taken by him from a Chit Fund;that the petitioner had himself taken a Chit for Rs.5,000.00 in his own name which was payable in Installments of Rs. 100.00 per month and that the petitioner'sson was earning Rs. 100.00 per month from tuition-fees. The petitioner filed his counter-affidavit on 25/11/1969 in which he stated that at the time of theprevious application in 1966, his total income wasRs. 175.00 per month out of which, Rs. 125.00 per monthwas as salary from M/s. Devi Sahai Madan Lal andRs. 50.00 per month was income from making paperenvelopes while in 1969 his entire income was only Rs. 200.00per month as salary from the aforesaid firm ashe had given up making paper envelopes on accountof his old age. He further stated that the income ofhis son was Rs. 200.00 per month ; that he was not doingany tuition work nor had he any other income. Itwas, therefore, averred that against an income of Rs. 325.00 in 1966, the petitioner's income in 1969 was Rs. 400.00 when the prices of ail the commodities had increasedat a higher ratio. The petitioner denied having takena chit of Rs. 5,000.00 in his own name from M/s. Million-tex Finance Company Private Ltd. On 14/01/1970, the respondents filed an application before theCompelent Authority for adducing additional evidence.The respondents wanted to prove that the income ofthe petitioner and his son had increased from Rs. 275.00to Rs. 550.00 per month : that the petitioner and hisson were saving Rs. 200.00 per month as the amountsdue on the two chits had been satisfied and the petitioner owned a plot of land worth Rs. 5,000.00 in Shahdra.The petitioner replied to this application and in thisreply it was admitted that the salary income of the petitioner and his son was Rs. 400.00 The other allegations were denied. On 16/04/1970 the petitioner'sson filed an affidavit in support of the reply filed by the petitioner stating that his salary was Rs. 270.00 per mensemand that the petitioner had to leave his job on accountof old age and failing eye sight and was now drawinga salary of only Rs. 100.00 per mensem from M/s. NawalKishore Rajinder Kishore and that the aggregate incomeof the petitioner and his son was Rs. 270.00. There wasno denial of the allegation of the respondents that the petitioner owned a plot in Shahdra. On 30/05/1970 the Competent Authority has recorded an orderthat the petitioner's application be taken on record andthat the respondents did not want to adduce any evidencein rebuttal. It may here be stated that no affidavitwas filed by the petitioner himself, stating that his salaryhad been reduced from Rs. 200.00 to Rs. 100.00 per mensern.The Competent Authority passed the impugned orderon 22/07/1970 and assessing the aggregate income ofthe petitioner ?nd his son at Rs. 470.00 per mensern expressed the view that the petitioner had the means to arrangealternative accommodation and granted the permissionto execute the aforesaid order of eviction.

(4) The first contention on behalf of the petitioneris that the order dated 17/08/1968 of the appellate authority rejecting the first application of the respondents for permission to execute the decree of evictionhad become final and a fresh application was not competent. Reliance was placed by the petitioner on Section 20 of the Slums Act which provides for an appeal againstan order of the Competent Authority refusing to grantthe permission and further provides that the decisionof the appellate authority shall be final. The argumentof the petitioner is that the finality given to the decisionof the appellate authority enures for all time and a freshapplication for permission even in altered circumstances is not competent. This identical question wasraised in Civil Miscellaneous (Main) No. 86 of 1968in re : Jai Narain v. Assistant Commissioner and anotherwhich was disposed of by a Division Bench of this Court(Dua, C.J. and Rangarajan, J.) on 7/04/19690). TheDivision Bench construed the word 'final' used in Section 20 of the Slums Act to mean that the order of the appellate authority was not subject to any further appeal.The Division Bench further observed : "THEland-Lord's right to execute the decreefor eviction is not completely lost, but it is onlydependent on the provisions of Section 19 whichafford to the tenant relief so long as he falls withinthe terms of this Section....................Merely because at a given point of time the meansof the tenant sought to be evicted are too meagreto enable him to have alternative accommodation, does not necessarily mean that his meansare not capable of improvement in future andhe must always be held to be in-capable of havingalternative accommodation. The means of thetenant are to be considered in their co-relation withthe availability of alternative accommodationonly at the time when permission to execute thedecree or order is sought from the CompetentAuthority. And again, merely because evictionis not considered to be in the interest of improvement and clearance of the Slum Areas at a pointof time in given circumstances, does not mean thatsuch a situation must, as a matter of law, beassumed always to continue in future. Thisbeing the legal position we, are, unable to understand how the general principle of res judicatacan be appropriately held applicable to the present case."

(5) The Slums Act does not purport to render decreesor orders of eviction passed by the Rent Tribunalsnullities. This Act concerns itself only with slum areasin Delhi, amongst other specified Union Territories.Section 19 of this Act places a fetter upon the institutionof any suit or proceeding after 1964 for obtaining anydecree or order for the eviction of a tenant from anybuilding or land in a slum area and upon any decreeor order obtained in any suit or proceeding institutedbefore 1964 in respect of any such building or land beingexecuted. The decree or order so obtained remainsfully effective in so far as the determination of the rightof the land-lord to evict his tenant is concerned. IF any suit or proceeding is sought to be instituted after1964 or if a decree or order of eviction passed in a suitor proceeding instituted before 1964 is sought to be executed, permission has to be obtained from the competent authority under this Act. The reasons for granting or refusing such permission have no relation to thereasons under the Rent Acts which render a tenantliable to be evicted. In granting or refusing to grantpermission the Competent Authority has to take intoaccount (a) whether alternative accommodation withinthe means of the tenant would he available to himif he were evicted; (b) whether eviction is in the interest of improvement and clearance of the slum areas;(c) such other factors, if any, as may be prescribed.The objects and purposes of the Slums Act and theRent Acts being different, the orders of the CompetentAuthority under Section 19 of the orders of the appellateauthority under Section 20 of the Slums Act cannothave the effect of nullifying the determination by theRent Tribunals of the liability of the tenant to be evicted.The finality attached to the decision of the appellateauthority under Section 20 of the Slums Act cannot,therefore, render the decree or order of eviction inexecutable or unenforceable for all time. If the argument of the petitioner is accepted, it would lead to theabsurd result that if once the Competent Authority orthe Appellate authority refuses to grant permission toinstitute a suit or proceeding for obtaining any decreeor order for the eviction of a tenant from any buildingor land in a slum area, the landlord would not be ableto institute such suit or proceeding even if subsequentto the refusal the tenant is not in a position to satisfyany of the conditions which are set out in Section 19 of the Slums Act even though his acts may have givenrise to a cause of action for his eviction under the RentAct. We are, therefore, of the opinion that the finalitygiven to the decision of the appellate authority is confinedto the circumstances which are the basis of that decisionand only to the extent that that decision is not subjectto challenge by a further appeal. If, therefore, thereis a change in the circumstances of the tenant so as todis-entitle him to the protection of Section 19 of the SlumsAct, it would be competent and open to the landlordto make a fresh application for permission to executehis decree or to institute fresh proceedings and suchfresh application will not be barred by any generalprinciples of res-judicata.

(6) The second contention on behalf of the petitioneris that there was no change of circumstances and, therefore, there was no justification for the Competent Authority to grant the permission in the second application filedby the respondents. While, dealing with this question,we have to remember that the extent of jurisdiction ofthis Court under Article 227 of the Constitution is onlyto see that Subordinate Courts and Tribunals functionwithin the bounds of their authority and this Article cannot be invoked for correcting mere errors. Evenunder Article 226 of the Constitution this Court willnot interfere with the orders or findings of a SubordinateCourt or Tribunal unless it has acted in excess of itsjursidiction or there is an error apparent on the face ofthe record.

(7) Now, in the impugned order the Competent Authority has computed the aggregate income of the petitionerand his son at Rs. 470.00 per month without taking intoconsideration the alleged income of the petitioner tothe extent of Rs. 50.00 per month from the sale of paperenvelopes. It is not disputed that the salary incomeof the petitioners son was Rs. 270.00 per mensem.As to the salary-income of the petitioner, the CompetentAuthority has dis-believed the affidavit of the petitioner'sson when he says that the salary-income of the petitionerhas been reduced form Rs. 200.00 to Rs. 100.00 permensem. It is contended by the petitioner that therewas no rebuttal to the statement made on oath in theaffidavit filed by the petitioner's son that there had beena reduction from Rs. 200.00 to Rs. 100.00 per monthinthe salary income of the petitioner and, therefore, theCompetent Authority should have held that the aggregate income of the petitioner and his son was Rs. 370.00per mensem and the finding of the Competent Authoritythat the aggregate income was Rs. 470.00 per mensemwas as a result of an error apparent on the face of therecord. The Competent Authority has observed thatthe petitioner neither filed a certificate nor any affidavitfrom his pervious employers about his resignation nora certificate from his alleged. new employer that hissalary was only Rs. 100.00 per month, that the petitionerhad spoken a lie when he denied having taken a Chitof Rs. 5,000.00 from Ms. Milliontex FinanceCompany (P) Ltd., as two intimation cards bearingdifferent chit numbers had been produced before him,one of which was addressed to the petitioner and theother to his son : that there was no specific denial bythe petitioner of the respondent's allegation that the petitioner had a plot of land in Shahdra. These reasonsaie not, in our opinion, extraneous to the question asto whether the statement of the petitioner's son in hisaffidavit that the petitioner's salary was Rs. 100.00 asagainst Rs. 200.00 previously was true or false. Thefinding of the Competent Authority that that statement isa false statement cannot be interfered with on the groundthat it has been arrived at by an error which was apparenton the face of the record. We have, therefore, to takeit that the aggregate income of the petitioner and hisson in 1969 was Rs. 470.00 as against an income of Rs. 275.00 per month in 1966 and upon this finding we cannotinterfere with the finding of the Competent Authoritythat on account of the increased income the petitionerhas the means to arrange alternative accommodation andwould not create a slum if evicted.

(8) In the result the Writ Petition is dismissed with costs.Counsel's fee is fixed at Rs. 100.00