Joginder Singh vs K.C. Johorey And Ors.
1991 Latest Caselaw 427 Del

JUDGMENT

D.K. Jain, J.

(1) The petitioner has approached this Court under Article 227 of the Constitution of India for quashing of the orders of the Financial Commissioner and Competent Authority (Slum) dated 29th April, 1974 and 6th February, 1973 respectively, declining to grant permission for the institution of the suit or order for eviction of respondent No. 3 from the premises bearing municipal No. 2209, Shankar Gali, Bazar Sita Ram, Delhi.

(2) The petitioner is the owner and respondent No. 3 is his tenant in the said premises. The petitioner filed an application under Section 19 of the Slum Area (Improvement ond Clearance) Act, 1956 (hereinafter referred to as the Act) for permission to institute a suit or proceedings for obtaining a decree or order for eviction of respondent No. 3 on various grounds. The main grounds being ; (a) the premises in question was let out for the purpose of residence but the same had been converted by the said respondent into business premises by using the same for the purpose of a milk dairy without the written consent of the petitioner, (b) the said respondent has built his own house in Krishna Nagar, Shahdara, (e) the premises in question is required bonafide by the petitioner for the residence of himself and his dependents, who were living in a one room rented house in a condition of slums with a large family and (d) respondent No. 3 is a well to do person and his eviction from the premises in question will not result in creation of any slums.

(3) Respondent No. 3 contesting the application, denied that the premises in question were let out for residential purposes. According to him these were let out to him by the previous owner for dairy purposes and had been used as such for the last about 20 years continuously under a license issued by the Municipal Corporation. As regards the property at Krishna Nagar he stated in the first instance that he was not the sole owner of the said residential house but had only a share in the said ancestral house. He pleaded that bids having only a share therein could not affect his tenancy of the premises in question let out to him for commercial purpose or render him liable for eviction. Subsequently, with the permission of the competent authority respondent No. 3 led additional evidence to prove that the house at Krishna Nagar belonged to his mother only. He further stated that he was the only earning member of the family, earning about Rs. 300.00 per month, hardly sufficient for his - family of 7 members to make bath ends meet and on his eviction it would not be possible for him to get another accommodation for his business and the creation of another slum would be compulsive.

(4) In his replication the petitioner denied that the premises in question were let out for commercial purposes by the previous owner, and he relied on the sale deed dated 5th February, 1959 in his favor, and attornment letter dated 2nd May, 1959; the certified copy of the voters list wherein the said respondent was shown to have been residing there with his family. It was also stated that the user of the premises by respondent No. 3 for the purpose of dairy was clearly against the Jetting purpose and the bye-laws of the Municipal Corporation of Delhi. Regarding the house at Krishna Nagar it was stated that it had fallen to the share of respondent No. 3 and his brother in equal shares on the death of their father, and as such, it was stated that the said respondent could easily shift to his self-owned house and there is no question of creating any slums if his eviction from the property in question was ordered. It was added that the conditions of slums had been created by respondent No. 3 by using the property in question for the purpose of milk dairy by keeping buffaloes therein, which was not only against the purpose of Jetting but also against the bye-laws of the Municipal Corporation of Delhi.

(5) The petitioner us well as respondent No. 3 filed their affidavits reaffirming what had been stated by them earlier.

(6) The Competent Authority vide its order dated 6th February, 1973 declined to grant permission to the petitioner under Section 19 of the Act. The competent authority found and held that although respondent No. 3 had an ancestral house but the same belonged to his mother and as such the house in the name of his mother could not be said to be freely available to the respondent. Jt further recorded a finding that the premises in question were being used by respondent No. 3 for the purpose of his dairy business. This finding was recorded by him on the basis of rent receipts and tax receipts from the Municipal Corporation of Delhi, which were filed by respondent No. 3. Having held so the competent authority came to the conclusion that the total amount which respondent No. 3 was required to part with for acquiring a commercial accommodation was not within his means and thus the permission sought for could not be granted.

(7) Being aggrieved by the said order the petitioner preferred an appeal under Section 20 of the Slum Areas Act to the Financial Commissioner. The Financial Commissioner vide his order dated 29th April, 1974 upheld the order of the competent authority. He overruled the objection of the petitioner that the evidence relied upon by the competent authority was beyond, the pleading as contained in the written statement on the ground that the judicial decisions relied upon by the petitioner, in support, were all under the Code of Civil Procedure and other enactments which were not applicable to the issue under determination. The learned appellate authority affirmed the competent authority's finding that respondent No. 3 will not be in a position to find out an alternative accommodation to the extent which he was occupying for commercial purposes. The appeal filed by the petitioner was accordingly dismissed.

(8) Before dealing with the contentions raised by the counsel for the petitioner it would be proper to notice the relevant provisions of Section 19 of the Act, which now read as under : Section 19:

(1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the Competent Authority- (a) institute, after the commencement of the Slum Area (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the .eviction of a tenant from any building or land in such area, execute such decree or order. (2) Every person desiring to obtain the permission referred to in sub-Section (1) shall make an application in writing to the Competent Authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the Competent Authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (4) In granting or refusing to grant the permission under sub- Section (3), the Competent Authority shall take into account the following factors, namely :- (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum areas (c) such other factors, if any, as may be prescribed. (5) ........................

(9) Section 19 of the Act provides that no eviction proceedings from any building or land in a slum area can be instituted without the previous permission in writing of the competent authority. Sub-Section (4) of the Section provides that while granting or refusing to grant such a permission, the competent authority has to take into account: (a) whether an alternative accommodation within the means of a tenant is available to him, (b) whether the eviction is in the interest of improvement and clearance of the slum area. Sub-Section (3) postulates an opportunity of being heard to the tenant and inquiry by the competent authority in a summary manner.

(10) In support of the petition Shri G.N. Aggarwal, the learned counsel for the petitioner, first submits that finding of the competent authority that the premises in dispute were being used for commercial purpose is against and in disregard of the evidence brought on record by the petitioner and is, therefore, perverse. It is further contended that on petitioner's adducing evidence in the form of sale deed and the attornment letter from the. previous owner, the initial onus to prove the purpose of tenancy was shifted to respondent No. 3 and he failed to produce any evidence to show that the property was in fact let out for commercial purpose.

(11) I am unable to persuade myself to agree with this contention. The competent authority, as also the appellate authority did consider the entire evidence on record while recording their finding. In his affidavit dated 23rd February, 1972, respondent No. 3 had stated that he was using the property in dispute since 1948 and the previous landlord had been issuing rent receipts, clearly mentioning therein that the premises was being used for dairy purpose. He also noticed that respondent No. 3 had produced copies of rent receipts and also tax receipts issued by the Municipal Corporation of Delhi for the years 1966 to 1969. No evidence was produced on record by the petitioner to show that the above evidence was false or fabricated. Appraisement of evidence produced, to record a finding thereon, is for the Authority. As. is well settled while exercising jurisdiction under Article 227 of the Constitution, this Court will not interfere with appreciation of evidence by the Competent Authority. The competent authority and the first appellate authority have appraised-the entire evidence on record before coming to the conclusion that the premises in dispute was in fact being used for commercial purpose. I see no reason to interfere with the concurrent finding of fact in this behalf and reject 'the contention.

(12) The second contention put forward by Shri Aggarwal is that the authorities below were not justified in taking into account evidence, which was beyond of the pleadings, to record the finding that alternative accommodation was not available to respondent No. 3. The grievance is that the additional evidence comprising of property tax receipts, showing not respondent No. 3 but his mother as the owner of the house, should not have been considered as it amounted to shifting his earlier stand that he had . only a share in it, not available to him for occupation. This, it was argued, was not permissible Reliance was placed on two authorities to contend that the provisions of Cpc were applicable to the proceedings under the Act. It was contended that the appellate authority was in error in holding that the provisions of the Code of Civil Procedure were not applicable to the proceedings under the Act. The first case on which reliance is placed by Mr. Aggarwal is the case of Ladli Pershad v. Financial Commissioner and another, (CPW 587/70). The question for consideration in that case was whether a finding given by the Civil Court under the Delhi & Ajmer Rent Control Act, works as Res judicata in inquiry under Section 19 of the Slum Act. The Court held that on principle, the effect of a decision of any quasi judicial authority arrived at after taking into account all the contentions and evidence of both the parties should act as res judicata inasmuch as this principle is not restricted to suits only dealt with by Section 11 of the Code of Civil Procedure. The second case relied upon is that of Ram Kishan v. Competent Authority and others, (CPW 837 of 1969)., in that case the question, was whether the competent authority had the power to set aside an ex-parte order made against the tenant. This court held that the competent authority is quasi judicial authority and has, therefore, inherent jurisdiction to correct a grave and palpable error which may have been committed by him or his predecessor in making an ex-parte order against the tenant when he was in fact not served. The proposition of law laid in the authorities is unquestionable. It is well settled that even when the provisions of the Code of Civil Procedure in terms do not govern proceedings by a quasi-judicial authority constituted under a particular statute, the general principles underlying them are to be followed. The observations of the Financial Commissioner to the effect that the decisions relied upon by the petitioner being under the Code of Civil Procedure or under other statute could not be taken into account therefore, are not in point, Hower, having regard to the legislative intent, proceedings under Section 19 of the act are not intended to fight out a regular litigation between a landlord and a tenant, Is expected that these proceedings would be concluded expeditiously.Otherwise the whole purpose of making the proceedings summary would be defeated. Sub-Section (3) of Section 19 of the Act makes it clear that the proceedings should not be construed Of understood or conducted in the same Way as in a regular suit or other proceedings before the Court. The only grievance of the petitioner herein is that respondent No. 3 having stated in his written statement that property at. Krishna Nagar was not available to him as alternate accommodation, the authorities below should not have taken into account the additional evidence adduced by him to prove that the property at Krishna Nagar was in the name Of his mother.I do not agree. The proceedings arc summary. The competent authority under the Slum Area Act is not a Court, the proceedings before him are not in the nature of a regular suit. Permission to lead additional evidence had been sought for and was granted. No evidence in rebuttal was produced by the petitioner, Having regard to the provision of Section 19(3) of the Act I do not, therefore, find any Jurisdictional error in the finding recorded by the authorities below that property at Krishna Nagar was not available to respondent No. 3 as an alternative accommodation.

(13) It was next contended by Shri Aggarwal that the competent authority as well as the first appellate authority had failed to devote any attention to his alternative plea based on clause(b) of Section 19(4) of the Act. His submission is that the competent authority was bound to consider the question whether eviction of the tenant was in the interest of Improvement and clearance of slum, particularly when the competent authority had found it as a fact that respondent No. 3 was running a dairy in a residential area. He argued that the conditions mentioned in clauses (a) and (b) of Section 19(4) of the Act were conditions in the alternative and had the competent authority come to the conclusion that eviction of respondent No. 3 was in the interest of improvement and clearance of slum area, the competent authority was bound to grant permission to the petitioner, notwithstanding his finding that an alternative: accommodation was not available to the tenant.

(14) This question, which is entirely concerned with construction of sub-Section (4) of Section 19 of the Act, reproduced above, is no longer res Integra and is covered by a full bench decision of this Court in the case of Punnu Ram and others v. Chiranji Lal Gupta and others, . This Court held as under :-

"WE do not accept the proposition that clauses (a) and (b) must be read cumulatively. We do not also accept that even if the conditions postulated by cl. (b) exist, but the tenant is too poor to acquire alternative accommodation, he can in no circumstances be evicted .We further hold that if the competent authority on valid grounds comes to the conclusion in a given case that eviction of the tenant if. in the interest of improvement and clearance of slum area, looking at it from the tenant's point of view the competent authority need not further investigate the question of the means and status of the tenant."

(15) In view of the judgment cited, the contention of Shri Aggarwal appears to be well found and the petitioner is entitled to succeed on this ground alone. It is evident from the impugned order that the authorities below have confined their entire attention to clause (a) of Section 19(4). There is not even a remote reference to clause (b) of sub-Section (4) of the said Section. In my view the failure to consider and adjudicate on this alternative plea of the petitioner is a fatal infirmity in the impugned order. Since neither the competent authority, nor the learned appellate authority have recorded a finding on this aspect of the matter, which has a vital bearing on the final decision of the case, I have no option but to set aside the impugned order and remand the case back to the Competent Authority to record a finding on this aspect of the matter and decide the matter afresh thereon after affording opportunity of hearing on the point to both the parties. Since the dispute relates to the year 1974, the Competent Authority would dispose of the matter within 6 months from today. Parties to appear before the Competent Authority on June 3, 1991 at 10.30 A.M.

(16) In the circumstances, I make no order as to costs.