Maya Ram Sharma vs H.C. Arora And Ors.
1988 Latest Caselaw 13 Del

JUDGMENT

Sunanda Bhandare, J.

(1) This petition under Article 227 of the Constitution of India is directed against the order of the Competent Authority (Slum) dated 29th January 1973 whereby I the application filed by the respondent for instituting eviction proceedings against the petitioner was allowed The petitioner is a tenant in respect of a portion of house no. 1633, Gali Krishna Sohan Ganj, Subji Mandi, Delhi comprising of two rooms, one store and two kitchens on the ground floor at a monthly rent of Rs. 12.00 since the year 1942 In the year 1971respondents 2 and 3 moved an application under Section 19 of the Slum Areas (Improvement and Clearance) Act seeking permission to institute proceedings for eviction of the petitioner from the premises It was averred in the petition that the family of the petitioner consisted of 9 members including five sons, two daughters. They were living in commonsality. The two sons who were employed were earning more than Rs. 1000.00 per month as salary, the daughter was earning more than Rs. 400 per month and son's wife was earning more than Rs. 500.00 per month. The petitioner himself was drawing more team Rs. 800.00 per month from two places. The petitioner was leading a luxurious life and owns luxury items like electric fans, radio, transistor, steel almirahs, sofa set, other furniture and three cycles and, therefore, the petitioner was a man of means and even if he was evicted be was not likely to create/slum because he would be in a position to procure alternative accommodation. This averment made by respondent no. 2 in the petition was denied by the petitioner herein and it was stated that the total income of the family including that of the sons and the daughter in law was Rs. 576,20 pet month. It was averred that out of the five sons, only one son was working in the Lok Sabha Secretariat at a net salary of Rs. 295.00 per month and the other sons were students and not earning anything. The daughter in law Mrs, Sneh Sharma was getting an honorarium of Rs. 120.00 as a Craft Teacher and the petitioner himself was earning only Rs. 215.00 per month. ( The petitioner filed the salary certificate ) from the Lok Sabha Secretariat showing the net salary of his son Ram Parkash Sharma, a pay certificate issued by Deputy Organiser, GrahKalyan Kendra showing the honorarium of the daughter in law Smt. Sneh Sharma and a pay certificate issued by M/s Modern Optical Company Pvt. Ltd. showing that the petitioner was getting Rs, 215.00 per month as salary. The Competent Authority however disbelieved the case of the petitioner and came to the conclusion that the petitioner had not come to the court with clean hands because he had not filed affidavits of the other sons in support of his case. The Competent Authority further held that the petitioner was a man of means and if evicted would be in a position to have alternative accommodation without creating slum.

(2) It was contended by the learned counsel for the petitioner that since the other sons of the petitioner were students, there was no necessity of filing their affidavits in court showing their income. Learned counsel submitted that Competent Authority failed to give any categorical finding regarding the financial status of the petitioner/ and did not come to any precise conclusion regarding the monthly income of the petitioner and since the Competent Authority had failed to give specific finding, the order granting permission is bad, Learned counsel relied on the judgment of this Court inC.M.(M)102 of 1970 decided on 23rd April 1972. Learned counsel further submitted that the Competent Authority wrongly came to a conclusion that the petitioner possessed luxury items like cycles etc. He stated that the petitioner's total income including the income of his family members was only Rs. 576.20 per month and the items stated to be in his house were not luxury items but were essential items and these items would not .indicate that the petitioner was leading a luxurious life as held by the Competent Authority.

(3) On the other hand, it was contended by the learned counsel for respondents 1 & 3 that even if the case of the petitioner is accepted and the income of the petitioner was only Rs, 576.20 per month, the petitioner would have been in a position to get alternative accommodation of 264 sq, feet for Rs. 92.40 and, therefore, on the own showing of the petitioner he was not likely to create sium.

(4) I find substantial force in the contention of the learned counsel for the petitioner It appears that Along with his written statement, the petitioner had filed salary certificates from Lok Sabha Secretariat indicating the income of his son, the son, the salary certificate of his daughter in law and the salary certificate regarding his own income. He has specifically stated in the affidavit filed Along with the written statement in support of the averment that one of his daughter is married and the other daughter is studding in B, Ii year and his other four sons arc students, one of them was appearing for a Higher Secondary Examination and the other three sons were studying in Class 9th, 7th and 4th respectively. There is no reply affidavit filed by respondent no. 2 to these averments and these averments of the petitioner have not been denied by respondent no. 2. I also find that the Competent Authority has come to the conclusion regarding means of the petitioner solely on the basis that he had failed to file affidavits of the major members of his family in support of his case and also that the documents filed by him do not give complete details of the emoluments being drawn by the members of his family and has not denied the possession of luxury items like electric fan, sofa set. cycles etc. Now even if the petitioner's version is to be disbelieved, it was necessary for the Competent Authority to give a specific finding regarding the total income of the petitioner. The Competent Authority could not grant the permission by merely saying that the petitioner had failed to discharge the onus. There is is also no force in the contention of learned counsel for respondents 2 & 3 that even assuming the case of the petitioner that his income from all sources was Rs. 576.20 is accepted as correct he would have been in a position to get similar alternative accommodation for Rs. 92.40 @ 35 paise per square feet. It is well-settled that a person cannot be expected to spend more than 10ø/o of his income as house rent. By pure mathematical calculation also if the petitioner was required to spend Rs. 92.40 for getting an accommodation of 264 square feet, the petitioner's income should have been at least Rs. 1000.00 per month. I therefore, find that the order of the Competent Authority is based on general finding regarding the income of the petitioner and, therefore, it cannot be sustained

(5) The petition is, therefore, allowed. The order of the Competent Authority dated 29th January 1973 is set aside. No costs.