Mohd. Mushir Alam vs Shiv Charan Bharti & Another
2009 Latest Caselaw 4287 Del

10.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 3824/2008

                                  Date of decision: 23rd October, 2009

       MOHD. MUSHIR ALAM                          ..... Petitioner
                               Through Mr. Arun K. Yadav, Advocate.

                     versus

       SHIV CHARAN BHARTI & ANR.              ..... Respondents
                      Through Mr. Santosh Manglam, Advocate for
                      respondent No. 1.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA

       1. Whether Reporters of local papers may be
       allowed to see the judgment?
       2. To be referred to the Reporter or not ?
       3. Whether the judgment should be reported
       in the Digest ?

                                ORDER

1. The present writ petition under Articles 226 and 227 of the

Constitution of India is directed against order dated 7th February, 2008

passed by the competent authority under Section 19 of the Slum Areas

(Improvement and Clearance) Act, 1956.

2. The petitioner herein, Mohd. Mushir Alam, claims that he is a tenant

of the respondent No. 1, Mr. Shiv Charan Bharti, in respect of one shop

forming part of property No.BB-271, Gali No. 3, Ashoka Basti, Nabi Karim,

Paharganj, New Delhi on a monthly rent of R.300/-. The respondent No.

W.P. (C) No. 3824/2008 Page 1 1, on the other hand, claims that the property was rented out to one Mr.

Abdul Hannan, the respondent No. 2, on a monthly rent of Rs.2,500/- and

he has vacated the property and sublet the same to the petitioner.

3. The petitioner herein has not challenged and questioned the

permission granted to the respondent No. 1 under Section 19(4) of the

Act. The petitioner herein has questioned findings recorded in the

impugned order by the competent authority to the effect that the

respondent No. 2 is a tenant of the respondent No. 1 and it is submitted

that the findings recorded are beyond the jurisdiction and the scope of the

Act and are also contradictory.

4. It is well settled that competent authority while deciding a petition

under the Act is required to examine the capacity of the tenant to acquire

an alternative accommodation. The object and purpose behind the Act is

to prevent creation of further slums by eviction of a tenant. The

competent authority while deciding the said question goes into the

financial status of the tenant to determine whether the tenant will be able

to acquire an alternative accommodation. The merits of the dispute on

other aspects is not required to be gone into by the competent authority.

A Division Bench of this Court in Mohammed Sayeed (deceased)

Through His Legal Representatives versus Chiranjilal Gupta and

Others, 24 (1983) DLT 93 has observed as under:-

"8. In our view, the review application is misconceived. The applicant is not correct in W.P. (C) No. 3824/2008 Page 2 saying that we have not dealt with the contention of the learned counsel. In the appeals before us the question involved was how the Competent Authority is to exercise his powers in granting or not granting permission in the context of the provisions of Sub-section (4) of Section 19 of the Act. It was not within the ambit of the controversy in the appeals as to whether the protection of Section 19 of the Act is or is not available to a particular party keeping in view the provisions of Section 2(1) of the Delhi Rent Control Act. It is for that reason that towards the end of our judgment we observed that all the other enquiries, including whether a person is a tenant or is not a tenant, or a landlord needs or does not need the premises, are outside the scope of the enquiry contemplated by Section 19 of the Act. Those are matters which have to be considered by civil courts or by Rent Controllers. In the appeals before us, we could not possibly have decided whether the heirs of Mod. Sayeed are or are not tenants within the meaning of Section 2(1) of the Delhi Rent Control Act. That is why we did not decide it and made only the observation referred to above. Section 25 of the Delhi Rent Control Act permits a decree or an eviction order to be executed against anybody. It was entirely for the applicants to decide whether or not to pursue their applications under Section 19 of the Act moved against Mohd. Sayeed vis-à-

vis the properties in question."

(emphasis supplied)

5. A similar view has also been taken by a single Judge of this Court in

Devi Pershad versus Ghanshyam Das, 31 (1987) DLT 62 holding that

for deciding an application under Section 19 of the Act the only aspect

which is required to be seen is whether a tenant if evicted is likely to

create a slum and for this purpose, his capacity to acquire alternative

W.P. (C) No. 3824/2008 Page 3 accommodation has to be seen. If there is any other challenge to the

eviction petition on merits regarding existence of tenancy or relationship of

landlord and tenant, the same is to be made subject matter of the eviction

petition or civil suit and not in an application under Section 19 of the Act.

6. In the impugned order, the competent authority noticed the

judgment of the Division Bench in the case of Mohammed Sayeed

(supra) and has held that all enquiries including whether a person is a

tenant or not a tenant are outside the scope of the enquiry contemplated

under Section 19 of the Act. However, thereafter the competent authority

has made some other observations on the scope and benefit of protection

under Section 19(4) of the Act and the said protection is conferred on

tenants alone and not upon an occupier or a sub tenant. The competent

authority has also referred to the decision in the case of Shadi Lal

(Deceased) Through LRs versus Competent Authority & Others, 87

(2000) DLT 587 wherein it has been held that in case of default in

payment of rent, permission under Section 19 of the Act should be granted

to the landlord without enquiring into the financial status of the tenant.

7. The aforesaid findings recorded in the impugned order are only

tentative and prima facie. These will not be binding on the authorities

under the Delhi Rent Control Act, 1956, who will examine contentions of

the parties on the question of tenancy rights, sub tenancy, etc., as claimed

W.P. (C) No. 3824/2008 Page 4 by the petitioner and the respondent No. 1 independently and without

being influenced by the observations made in the impugned order.

8. The effect of the impugned order passed by the competent authority

is that permission has been granted to respondent No. 1 to file an eviction

proceeding under the Delhi Rent Control Act, 1956 against the respondent

No. 2 and not against the petitioner. In case respondent No. 1 succeeds

and it is established that the respondent No. 2 is a tenant in the

proceedings under the Delhi Rent Control Act, 1956, an eviction order may

be passed upon satisfaction of conditions mentioned in Section 14 of the

Delhi Rent Control Act, 1956 against the respondent No. 2. An eviction

order may also be passed against the petitioner herein if it is established

and proved that he is a sub tenant of respondent No. 2. This is because

permission under Section 19(4) of the Act is only required to be obtained

against a tenant and not against a sub tenant (refer Shri Kishan and

another versus Mahabir Singh and others, AIR 1972 DELHI 196 and

Kailash Chand versus Ganpat Rai, 1989 RLR 274). In case it is held

by the Rent Controller that the petitioner is a tenant of respondent No. 1,

the eviction petition will be dismissed on the ground of failure of the

respondent No. 1 to obtain necessary permission as the respondent No. 1

does not have any permission under Section 19 of the Act to file eviction

proceedings against the petitioner. In the said situation, merits of the

eviction petition under Section 14 of the Delhi Rent Control Act, 1956 need

W.P. (C) No. 3824/2008 Page 5 not be examined and gone into. The writ petition is accordingly disposed

of with the aforesaid clarification.

9. Observations and findings recorded in the impugned order will be

read in accordance with the directions given above. Observations made

on merits, will not influence and are not binding in the eviction

proceedings under the Delhi Rent Control Act, 1956. In the facts and

circumstances of the case, there will be no order as to costs.

SANJIV KHANNA, J.

       OCTOBER 23, 2009
       VKR




W.P. (C) No. 3824/2008                                                Page 6