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Said-ud-dIn Vs. Mahabir Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.W. 600 of 1970
Judge
Reported inAIR1971Delhi240
ActsConstitution of India - Articles 226 and 227; Delhi Slum Areas (Improvement and Clearance) Act, 1956 - Sections 19(3) and 19(4)
AppellantSaid-ud-din
RespondentMahabir Singh and ors.
Appellant Advocate Bawa Shiv Charan Singh, Adv
Respondent Advocate N.R. Suri, Adv.
Cases ReferredMadurai v. The Commissioner of Income Tax
Excerpt:
.....his income of rs.725 can avail of alternative accommodation on eviction - petitioner challenged findings - findings regarding income of petitioner cannot be challenged - inference from such fact can be challenged in writ petition - mixed question of law and fact involved - question of law can be challenged in writ petition. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in..........no income at all. the total income of the member of his family was rs.400/- per month. on this income a family of 31 member had to be supported. the tenant was thus obviously not in possession of means to find alternative accommodation if evicted from the premises.5. the competent authority observed that the size of the family of the tenant was 31 members which was established from the copies of the ration cards on record. it further observed that the size of the family was not challenged by the landlords. it concluded, thereforee, that a sum of rs.460/- per month was simply not enough to maintain such an alarmingly large family and the tenant could not, thereforee, acquire alternative accommodation if evicted. the permission was, thereforee, refused to the landlords.6. in an appeal.....
Judgment:
ORDER

1. Can the High Court acting under Articles 226 and 227 of the Constitution review a finding of fact by a quasi judicial Tribunal? If so, what types of findings of fact on what grounds? What is the legal theory of such judicial review? These are some of the interesting questions raised by the otherwise simple facts of this case.

2. The petitioner is the tenant of house NO. 1225, Gali Jaman Wali, Kalan Mahal, Delhi situated in a slum area of which the respondents 2 to 5 are the landlords. The landlords obtained an order for the eviction of the tenant from the above premises under the Delhi Rent Control Act, 1958. In view of Section 19(1)(b) of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter called the Act) however such an order of eviction could not be executed by the landlords except with the previous permission in writing of the competent authority under the Act. The landlords, thereforee, applied under Section 19(3) of the Act to the competent authority of such permission.

The decision of the application by the competent authority had to be governed by the statutory standard laid down in Section 19(4) (a) which is, thereforee, reproduced below:-

'19 (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'

3. The case of the landlords was that the tenant was in possession of means to obtain alternative accommodation. His own monthly income was Rs.100/- but his sons and grandsons lived and messed with him and thus constituted one family. The total income of all the members of the family was not less than Rs.1500/- per month.

4. The defense of the tenant was that he was an aged man of 90 years who had retired long ago and was not getting any pension. He had thus no income at all. The total income of the member of his family was Rs.400/- per month. On this income a family of 31 member had to be supported. The tenant was thus obviously not in possession of means to find alternative accommodation if evicted from the premises.

5. The competent authority observed that the size of the family of the tenant was 31 members which was established from the copies of the ration cards on record. It further observed that the size of the family was not challenged by the landlords. It concluded, thereforee, that a sum of Rs.460/- per month was simply not enough to maintain such an alarmingly large family and the tenant could not, thereforee, acquire alternative accommodation if evicted. The permission was, thereforee, refused to the landlords.

6. In an appeal filed under Section 20 of the Act the Administrator pointed out that in calculating the income of certain members of the tenant's family, the competent authority had made a mistake and on agreed calculation the total income of the tenant's family came to not less than Rs.725/- per month as per the admission of the tenant himself. The learned Financial Commissioner came to the following conclusion on the findings:

'With nearly Rs.100/- per month available for the respondent (tenant) to find an alternative accommodation outside a slum area, I accordingly consider the respondent to be a person of means whose eviction from the demised tenanted premises would not entail his necessarily have to create an alternative slum (sic) and this being so, I accept the appeal, set aside the impugned order of the competent authority and hereby award permission to the appellants to proceed with the execution of the decree obtained by them against the respondent if they so deem necessary and if it be competent in law'.

7. The tenant has challenged the validity of the above mentioned order to the Financial Commissioner mainly on the ground that the finding that an income of RS.725/- per month was sufficient for the maintenance of the family of 31 members and further to find an alternative accommodation for them, if evicted, was such as no reasonable person could arrive at and, thereforee, contained an error apparent on the face of the record.

8. The defense of the landlords is that the impugned finding is one of fact based on evidence and cannot, thereforee, be challenged in this writ petition.

9. The main question for decision is whether the impugned finding of fact can be challenged in this writ petition under Article 226 and 227 of the Constitution and if so on what grounds.

10. Section 20 of the Act says that the decision of the appeal there under shall be final. This means that there is no appeal or revision possible of the said decision under the Act. The only remedy is the judicial review under the Constitution within the limits of such review. It is well established that such a judicial review of a finding of fact is confined to two grounds, namely:-

(1) that the finding of fact is based on no evidence at all, or

(2) that it is so unreasonable that no reasonable person could have arrived at it on the evidence before him.

11. Can it be said that the impugned finding in the present case is not based on any evidence at all? On the side of the petitioner, it may be urged that the tenant as such was a retired person without any pension. He had thus no income of himself at all. Ordinarily, it is his own income which must be taken into account in considering whether he had the means to find alternative accommodation, if evicted. As he had no income at all the obvious answer should be that he was not in a position to find alternative accommodation, if evicted. Even if the income of the members of his family is taken into account on the ground that they were living with him in the premises in question, still the total income of the family was Rs.725/- per month and it is a matter of obvious common sense that in the present days of high prices this amount was not sufficient for even the bare maintenance of 31 persons who were the members of the family. It cannot be said, thereforee, that there was any evidence worth the name which could support the finding that the tenant and his family had the means to find alternative accommodation if evicted.

12. In reply the landlords may point out that it is only the existence of the evidence which is necessary to support such a finding. The evidence certainly existed to show that the income of the family was Rs.725/- per month. The sufficiency of the evidence to sustain the finding was a question for the quasi judicial authority alone to decide. This Court cannot go into the sufficiency to the evidence and, thereforee, cannot question the finding on the ground that Rupees 725/- per month was not sufficient for maintenance of the family and for finding out an alternative accommodation for them if evicted.

13. The impugned finding is divisible into two parts. Firstly it is that the income of the tenant is nil and that of his family of 31 members is Rs.725/- per month. There are what may be called 'primary facts' found by the learned Financial Commissioner. Secondly it consists of an inference from the primary facts, namely, that the income of the tenant and his family was such that the tenant could find alternative accommodation if evicted . This inference from the primary facts may be called the finding of the secondary fact. According to Lord Denning, L.J. in Bracegirdle v. Oxley, (1947) 1 Kb 349 , such an inference is one of fact if it can be drawn by a layman but, would be a conclusion of law if it involves construction of a document or of a statute. Prof. A.L. Goodheart would call the distinction between the primary and secondary facts as one between the perception of facts and the evaluation of facts 1955-71 Lqr 402 .

14. The inference from the primary facts involves in the present case the conclusion that the standard laid down in Section 19(4)(a) of the Act is satisfied. It involves the application of Section 19(4)(a) to the facts of the case and would, thereforee, be either a mixed question of law and fact or a question of law.

15. The finding of primary law as to the quantum of the income is based on evidence and is, thereforee, final. It cannot be challenged in the present writ petition. The finding of the secondary fact is, however, open to challenge from every point of view. In itself it is based on no evidence as there is nothing on record to show that an income of RS.725/- per month was not only sufficient to support the family but was also sufficient for them to find alternative accommodation if evicted. It is, thereforee, based on no evidence.

16. Further the inference tried to be reached from the primary facts that an income or Rs.725/- would enable the tenant to find alternative accommodation is so unreasonable that no reasonable person could have arrived as it. Such a perverse finding of fact is always assailable. Associated Provincial Picture Houses v. Wednesbury Corporation, 1948 1 Kb 223. In Bracegirdle v. Oxley, referred to above, Lord Goddard C.J. at p. 353 referred to the finding of the Justices of Peace and observed that if it is one that no reasonable person could arrive at, 'then this court can interference, because the position is exactly the same as if the Magistrates had come to a decision of fact without evidence to support it. Sometimes it has been said of the verdict of a jury given in those circumstances, that it is perverse, and I should have no hesitation in applying that term to the decision of Magistrates which are arrived at without evidence to support them'.

17. Lastly, the conclusion that the requirements of Section 19(4)(a) of the Act are satisfied by the inference drawn from the primary facts involves a question of law being based on the construction of a statute, In Edwards v. Baristow, 1956 Ac 14 as follows:

' I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the Court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously erroneous in point of law, But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So, there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which three is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination.'

18. The assailability of the decision of a Tribunal and the nature of such a decision (namely, whether it is a question of fact or law or a mixed question of law and fact, etc.) was also considered by the Supreme Court in Meenakshi Mills, Madurai v. The Commissioner of Income Tax, Madras, 0044/1956 : [1956]1SCR691 and the conclusion arrived at by their Lordships supports my reasoning stated above.

19. To sum up the conclusion that the tenant who had no income at all (or alternatively whose family of 31 members had an income of RS.725/- per month only) would be able to find alternative accommodation, if evicted, was:-

(1) if regarded as one of primary fact, based on no evidence;

(2) as a finding of secondary fact or an inference or a conclusion of fact on a question of degree, so unreasonable that no reasonable person could have arrived as it and

(3) the conclusion that the requirements of Section 19(4)(a) could be satisfied by such an inference was an erroneous application of law, the error being apparent on the face of the record.

20. On all these three grounds, thereforee, the writ petition is allowed and the impugned order is quashed. In the circumstances, however I make no order as to costs.

21. Petition allowed.


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