Ashrafi Devi vs Ganga Sahai Kishan Lal
1988 Latest Caselaw 171 Del

JUDGMENT

D.P. Wadhwa, J.

(1) This is tenant's petition under Article 227 of the Constitution against the order dated August Ii, 1986, of the Competent Authority constituted under the Slum Areas (Improvement and Clearance) Act 1956 (for short 'the Act'). By this order the competent authority allowed an application of the respondent-landlord filed under S. 19(l)(a) of the Act seeking permission to file proceedings for eviction against the petitioner-tenant. The suit premises comprise one shop, measuring 10' x 6' in Bazar Sita Ram in the walled city of Delhi.

(2) The permission was granted principally on the grounds that the tenant did not file ration card of her family to prove that her husband and she herself did not constitute joint family and further she did not give any account or record of her monthly income derived from the shop premises in question though she gave daily turn over of the business being carried on therein. The competent authority held that on that account the tenant was not entitled to any protection under the Act and that she could acquire an alternative accommodation by spending Rs. 60.00 per month. It was pointed out that she could get the alternative accommodation at the rate Re. l.00 per sq. ft. (Commercial). The competent authority finally held that the tenant was having sufficient income and means and status to find an alternative shop, if evicted from the shop premises in question.

(3) The application under S. 19(l)(a) was filed in April 1978, six month after an earlier application filed by the respondent-landlord was dismissed by a Division Bench of this Court by judgment dated November 1977, in C.W. No 202/77. This earlier application was filed in may 1975 and this was also allowed by the competent authority and permission was granted to the landlord to file eviction proceedings against the tenant. This order was, however, reversed by this Court in C.W. No. 202/77. The grounds on which permission was sought in the first application as well as the present one are almost identical. When C.W. 202/77 came up for hearing before a learned single Judge of this Court, he referred the matter to a Division Bench to determine the question whether "the means" of the tenant within the meaning of S. 19(4)(a) of the Act to find alternative accommodation for a shop in which the tenant was carrying on business could include the means of the husband of the tenant who was living with the tenant in a residential house but carried on his own business in another shop. The Court answered the question in favor of the tenant and applying the test laid held that the tenant did not have the means to find an alternative accommodation if she were evicted from the shop in question. The order of the competent authority granting permission to the landlord was set aside.

(4) It was contended by Mr. Dhan Prakash Gupta, learned counsel for the tenant, that there was no change in circumstances for the landlord to file another application seeking permission to evict the tenant within six months of his first such application having been dismissed by the High Court. He further said that the impugned order did not take into account the principles laid down in C.W. 202/77, On the other hand, Mr. P.D. Gupta, learned counsel for the landlord, submitted that this was a case where the tenant suppressed true facts and the competent authority was right in raising a presumption against the tenant and that if the tenant had come out with all the material facts and evidence, that would have shown that she had the means to find out an alternative accommodation. The contention of the tenant appears to be correct. There is nothing on the record to show that the tenant who is carrying on her own business in the shop is in any way being assisted financially either by her husband or by any other person. The tenant in her affidavit has denied that she is being assisted by her husband and rather she has come out with the version that her relations with her husband are strained. The non-production of ration card in the present case does not appear to be quite material. When the tenant said that she was having a small business of selling juice wherein she was assisted by a small boy of 15 years of age who was her relative and that she was not keeping any books of account, no presumption could be raised for non-production of the books of account. In fact, this court in CW. 202/77 did mention that it would be unrealistic for the competent authority to expect production of account books from such petty traders. Further the observation of the competent authority that alternative accommodation being shop could be obtained at the rate of Re. 1.00 per sq. ft., is quite unrealistic in the present circumstances.

(5) I am, therefore, of the view that it cannot be said that the tenant has means to find alternative accommodation if she is evicted from the shop premises in question. The order of the competent authority granting permission to the landlord has, therefore, to be set aside. Accordingly, the present petition is allowed, and the impugned order dated Aug. 11, 1986, of the' competent authority is set aside. There will, however, be no order as to costs.