Pal Singh vs H.D. Birdhi And Ors.
1986 Latest Caselaw 236 Del

JUDGMENT

S S. Chadha, J.

(1) This Petition under Article 226 of the Constitution of India ii directed against the order dated March 31, 1975 passed by Shri H D. Birdi, Competent Authority (Slum) allowing an application under Section 19(1)(a) of the Slum Areas (Improvement & Clearance) Act filed by Shri Sunder Singh for seeking permission to institute eviction proceedings against the petitioner.

(2) The fact* lie in a narrow compass. Sh. Sunder Singh moved an application under Section 19 of the said Act for permission to institute proceeding for obtaining an order for eviction of the petitioner herein from tcourt-yeards consisting of three rooms with a court-yeard in house No. 2216 to 2222, Gali Inder Chamar, Teliwara, Delhi. The tenant filed a written statement railing several objections to the maintainability of the petition. The landlord then filed application. The parties were called upon to file their affidavits and counter affidavits. The Competent Authority appraised the evidence produced by the parties in the form of affidavits, counter affidavits and documentary evidence. The Competent Authority concluded that the petitioner herein has not come out with true facts, that he has tried to conceal material information, that he has not come out with clean hands and that the allegations of the landlord were accepted as correct. It was held that the petitioner herein is a person of status and means to acquire alternative accommodation in case of his eviction from the premises in dispute. The permission sought under Section 19(1)(a) of the said Act was granted by the impugned order dated March 31,1975.

(3) Shri Sunder Singh died on March 6, 1981 and the property in dispute devolved upon his legal heirs. No application was filed for bringing on record the legal representatives of the deceased respondent No. 2. The legal heirs then moved an application under Section 151 of the Code of Civil Procedure on or about April 1, 1986 for dismissal of the main petition or in the alternative it was prayed that the hearing of the main petition be expedited. The hearing of the main petition was expedited. In the meanwhile the tenant moved an application under Section 151 of the Code of Civil Procedure praying inter alia, that though the legal representatives are not required to be brought on the record after the death of late Shri Sunder Singh, the application is being made by way of abundant precaution for impleading the legal representatives

(4) Mr. Devinder Kapur, the learned counsel for the legal representatives has raised an objection that the Competent Authority (Slum) is not amenable to the jurisdiction of this Court under Art. 227 of the Constitution of India as amended by Constitution (42nd Amendment) Act, 1976. There is no merit in this preliminary objection. The order of the Competent Authority (Slum) was passed on March 31, 1975. The petition under Article 227 of the Constitution was filed on August U, 1975. Constitution (42nd Amendment) Act, 1976 came into force on 1st February, 1977. There is consensus of judicial opinion that where a statue is passed pending an action strong and distinct the words are necessary to alter the vested rights of either litigant as they stood at the commencement of the action. Pending petition under the original Article 227 would, therefore, not be affected by the amended Articles inasmuch as, then arc no words at all, much lese strong and distinct words, in the amended Article 227 which suggest, either expressly or by necessary implication that any alteration was intended in the right of the petitioners to continue and complete their proceedings with the Article as it stood at the commencement of the Action (See) ' Sh. Patrao Dalisaheb Ghatge and another v. The State of Maharastra and another, and Chhaganlal Devchand etc.V. Smt. Naval Kunwar Talak Chandand another etc. Air 1977 Gujarat 180).

(5) The second objection raised is the inordinate delay and laches in bringing on record the legal representatives of the deceased landlord. There is merit in this submission. As already mentioned respondent No. 2 died on March 6, 1981. In pursuance of the permission granted by the Competent Authority (Slum) respondent No. 2 obtained an order of eviction against the petitioner. The appeal before the Rent Control Tribunal was dismissed. The second appeal being S. A. O. 326/80 was pending in this Court. The petitioner moved an application on May 30, 1981 under Order 22 Rule 4 of the Code of Civil Procedure for bringing on record the legal representatives in the second appeal. That application was allowed by the Court on October 13, 1982. The petitioner was fully aware of the death of respondent No. 2. He did not even then take any steps within a reasonable time for bringing on record the legal representatives of the deceased in these proceedings. The application was moved on April 23, 1986. No explanation is furnished as to why the delay was caused in making the application. The only reason advanced is that the legal representatives of the deceased could not be in any way necessary parties to the decision of the main petition as late Shri Sunder Singh was only a proper party. The contention is that what is challenged in these proceedings is the order of the Competent Authority (Slum) which is the only necessary party.

(6) The order of the Competent Authority (Slum) granted permission under Section 19(1)(a) of the said Act to late Shri Sunder Singh to institute proceedings for obtaining an order of eviction of the petitioner from the demised premises. The order was obtained from the Competed Authority (Slum) on an application presented as required by the said Act The result of the quashing of the order dated March 31,1975 would have prejudicially affected late Shri Sunder Singh He was, therefore, a necessary party and in his absence no relief can be granted by this Court. This plea has been taken by the petitioner only to cover the inordinate delay and laches in making the application. The provisions of the Code of Civil Procedure i. e. Order 22 and the provisions of the Limitation Act may not be applicable to the proceedings under Article 226 and 227 of the Constitution of India, yet the principle do apply. It was held in 'Bhagwan Singh and other v. Additional Director of Consolidation, Punjab. Ferozepur and another, Air 1968 Punjab and Haryana 360 that the Court will apply the principles as distinguished from the technical provisions of Order 22 Rules 3& 4, relating to substitution in appropriate cases in the exercise of its discretion on the ground of justice, equity and good conscience However, where there has been inordinate delays and laches without proper explanations for the substitution, the Court will have to refuse to exercise its discretion. The case before me is also a fit case in which I am inclined to refuse to exercise my discretion in favor of the petitioner.

(7) However, on merits the petitioner has also no case. For granting or refusing permission under Section 19 of the said Act the Competent Authority (Slum) has to take into consideration the various factors mentioned in Section 19(4) of the said Act. The Competent Authority (Slum) has to give a finding whether alternative accommodation within the means of the tenant would be available to him if he was evicted. I was taken through the material before the Competent Authority (Slum) and I have appreciated it only with a view to find out whether it calls for interference under Article 227 of the Constitution of India, I would interfere only when the finding is either based on no material or which is such as no reasonable person acting reasonably would have come to that conclusion, in other words, if the finding is perverse.

(8) The landlord filed an affidavit alleging that the tenant is very well off financially and is in affluent circumstances and can easily arrange for alternative accommodation. It was pointed out that he owns about Ii bighas of agricultural land at Haibatpur near Najafgarb, Delhi which yields an income not less than Rs. 500.00 per month. It is also states that the tenant sold his land measuring 24 bighas 14 biswas situated in village Haibatpur near Najafgarh, New Delhi for Rs. 33.000.00 on September 17, 1970 by means of sale and this sum of Rs. 33.000.00 in his possession. Besides monthly income from the working of a charade machine is not less than Rs 1200.00 per month and-the income of his son is given as RI.IOO.00 per month, la the counter affidavit there is an evasive denial as to the income from the agriculture land in the name of the tenant. It is also sworn that the tenant was never in possession of Rs. 33,000.00 at any lime and was not then in possession of any amount. The tenant admitted his income to the extent of Rs. 175.00 per month as salary besides the income of Rs. 100.00 or so of his son.

(9) The Competent Authority (Slum) considered the copy of the sale deed relating to the sale of the land measuring 24 bighas 14 biswas situated in village Haibatpur near Najafgarh, New Delhi. As per sale deed, the tenant received a sum of Rs. 17,151.00 at the time of registration before the Sub-registrar and admitted the receipt of Rs. 15,849 previously. The Competent Authority also relied upon the copy of the written statement filed by the tenant in the suit filed by Shri Darshan Singh. It records the admission that the tenant sold his share of the land and received the amount of the proceeds as alleged by the landlord. After noticing this material the Competent Authority (Slum) held that the story of the tenant that be did not receive the- amount of Rs. 33,000.00 does not appear to be convincing and reliable in the absence of any other cogent peace of evidence on record. The Competent Authority (Slum) believed the allegations of the landlord that the tenant is having income by way of interest earned on the said amount of Rs. 33,000.00 .

(10) The Competent Authority (Slum) then noticed the admitted case that the tenant owned 11 bighas of agricultural land at village Haibatpur near Najafgarh, New Delhi, that the land is chai and most productive and the tenant has installed a tubewell to irrigate the land. A copy of the khasra girdawari dated August 24, 1972 was filed. The Competent Authority then noticed that the tenant has not denied that the land is not productive or that he has not installed a tubewell for irrigation of the same. On that basis the inference is drawn that the tenant is having the inference is drawn that the tenant is having monthly income of Rs. 500.00 from the agricultural land. Besides this there is admitted income of Rs. 275.00 by the tenant. On this basis the finding of the Competent Authority (Slum) that the tenant is a person of status and means to acquire alternative accommodation in case bids eviction from the demised premises is supported by cogent material and evidence.

(11) For the above reasons C.M.(M) 236/75 is dismissed with no order as to costs.