Netra Pal vs Amarat Singh And Anr.
1995 Latest Caselaw 877 Del

JUDGMENT

Usha Mehra, J.

(1) Mr. Netrapal has assailed the order of the Competent Authority under the Slum Areas (Improvement and Clearance) Act, 1956, (in short the Act). He has challenged the impugned order primarily on the grounds that the Competent Authority failed to consider the fact that the respondent landlady had not pleaded nor proved the means and status of the petitioner. In the absence of the same permission under Section 19 of the Act could not to have been granted.

(2) In order to appreciate the challenge raised by the petitioner the brief facts of the case are that respondent No. 2, landlady Smt. Kaushalya Devi sought permission from the Competent Authority to evict the petitioner from her two shops given on rent, on the grounds of; (i) non payment of rent; and (ii) for subletting, assigning or (otherwise parting with possession of shop bearing Municipal No. 3142, Mohalla Dassan, Behind Chawn Bazar, Delhi, unauthorisedly and illegally. Her petition was contested by the petitioner herein (respondent before the Competent Authority) raising the plea that Kaushalya Devi was not the owner and that he had no means to acquire alternative premises for running his business. He, however, admitted that agreed rate of rent was Rs. 30.00 and Rs. 35.00 per month respectively. That he had paid the rent up to 18th January, 1973. Since, thereafter the landlady refused to accept the rent hence he was prepared to pay the arrears in Installments. He denied that he sublet, assigned or otherwise parted with possession of the shop bearing No. 3142. As he had no other source of income except the meagre income from these two shops taken on rent from this landlady bearing Municipal Nos. 3142 and 3144, Mohalla Dassan, behind Chawri Bazar, Delhi, permission should not be granted. In case permission granted he would create another slum. He was a petty shop keeper. In these two shops he could not stall goods worth more than Rs. 800.00 . In replication to the written statement the landlady denied that the petitioner herein was a poor man or that he had not sub let the shop. Subsequently, the landlady filed an affidavit of her husband by way of evidence, wherein it has been stated that except making a bald statement the tenant had not disclosed his financial accounts. Her husband Sh.Bhagwan Swarup Gupta further testified that the tenant was running a very lucrative business as general merchant selling a variety of articles including cold drinks. He was earning not less than Rs. IOUO.00 per month and that he had sublet the shop No. 3142 at a monthly rent of Rs. 200.00 . Previously the shop was sublet to a printing press and thereafter for godown purposes. This he stated on the basis of information gathered by him.

(3) On the other hand the tenant Sh.Netra Pal filed his affidavit by way of evidence testifying that he had paid the rent up to 18th January, 1973. He was prepared to pay the arrears of rent in Installments which had accrued because of the refusal by the landlady to accept the rent after 18th January, 1973. He denied that his financial position was sound. He further stated that he being a poor man was not in a position to get alternative shop for the purposes of running his business. That he was earning Rs. 175.00 to Rs. 200.00 per month from both the shops Beside these two shops he had no other source of income. He was not paying any income- tax. To support his case he got filed the affidavits ofS/Sh. Ram Bharose Lal, Ishwar Dass, Ravinder Kumar and Lala Tek Chand, by way of evidence, all of whom stated that Netra Pal was selling toffee, biscuit and Coca Cola in the tenanted shops. He was not earning more than Rs. 175.00 per month from both the shops. That he was a poor man.

(4) It is on the basis of these oral testimonies led by the landlady and present petitioner that the Competent Authority, respondent No. I herein, granted the permission in favor of the landlady in respect of shop No. 3142 and declined the permission in respect of shop No. 3144.

(5) As pointed out above the order has been assailed primarily on the ground that Competent Authority failed to take note of petitioner's financial status as proved by him. Further the landlady having failed to furnish the evidence of his sufficient means her petition ought to have been rejected. Approximate income of the tenant was furnished through the affidavit of the husband of the landlady.

(6) On the basis of submissions made, the short point for consideration is whether in the absence of having furnished the details about the financial status of a tenant in the petition, by the landlady, could the Competent Authority grant permission. Similar point came up before this Court in the case of Asarfi Devi v. Gangasahai Kishanlal, 1978 Rlr page 81. After analysing various provisions of Section 19 of the Slum Areas Act, the Court opined that the onus to prove the income is on the tenant and it is never for landlord to give estimate about the same. Tenant must give full details about the monthly or yearly income. For failure he may be allowed to be examined. A petty trader may not produce the copy of the return and income tax assessment order and may not be keeping the books of accounts, but at the same time he has to place on record satisfactory evidence to prove his income from the business which he is running in the premises let out to him. Therefore, the contention of the Counsel for the petitioner that the Competent Authority failed to appreciate that the respondent landlady did not indicate the income of the petitioner in the petition, has no force. In view of the Division Bench Judgment of this Court, the burden to prove the income was on the petitioner/ tenant. He was to give full details about his monthly or yearly income. In the written statement filed by him he did not furnish any such details. Except making a bald statement that he was a poor man he had not mentioned the details. In the evidence which he filed by way of affidavit of himself as well as his neighbours the income of the petitioner has been shown based on approximation. In his affidavit he stated that approximately he was earning Rs. 175 to 200.00 per month from both the shops. No neighbour can testify about the income of another businessman. Therefore, it can safely be presumed that neighbours' evidence about the income of the petitioner was based on hearsay. It was not their case that they had been maintaining the accounts of the petitioner or had seen the accounts of petitioner's business. How could they tell his income except being so told by the petitioner himself. Therefore, their testimony with regard to the income of the petitioner was rightly rejected by the Competent Authority. The petitioner ought to have furnished the details regarding his income, but nothing of that sort was done. Nobody asked him to furnish the books of accounts nor the income tax assessment order because he might not have maintained the same, yet he could have given the details of the monthly purchases made and daily sale effected by him. Having not done so, the Competent Authority was left with no alternative but to draw the conclusion that he had concealed his actual income from him. Even otherwise, it is unimaginable that a person who was earning about Rs. 175.00 per month from two shops, as had been alleged by him, would pay the rent of these two shops amounting to Rs. 65.00 per month. It is only when one earns sufficient that he could keep two shops and afford the rent of Rs. 65.00 per month. From an earning of Rs. 175.00 to Rs. 200.00 per month no one can afford the rent of Rs. 65.00 per month. Hence, I am in agreement with the conclusion drawn by the Competent Authority that the income of the petitioner was much more than disclosed by him. I find no merit in this petition. Even otherwise if he was a petty shopkeeper then his eviction from one shop will not create any other slum, because he has got alternative shop for running this petty business, against which permission has been refused.

(7) For the reasons stated above the petition is dismissed with no order as to costs.