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Prithi Singh JaIn Vs. Hema Chand JaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.M. (M) No. 36 of 1971
Judge
Reported inAIR1972Delhi194
ActsConstitution of India - Article 227
AppellantPrithi Singh Jain
RespondentHema Chand JaIn and anr.
Appellant Advocate Satish Chander, Adv
Respondent Advocate R.L. Sharama, Adv.
Cases ReferredPioneer Chemical Co. v. Suraj Bhan Prem Raj.
Excerpt:
.....then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - in the written statement (annexure b), the petitioner clearly stated that he was earning his living by supplying hosiery goods from shop to shop and was hardly earning thereby about rs. the absence of any affidavit of the son in the circumstances was clearly immaterial. he merely stated that the petitioner's son was very well placed earning about rs. 600 of 1970 decided on 27.11.1970 air1971delhi240 ,it is well established that it is open to..........of india praying that an order (annexure x), dated 22.12.1970 passed by shri d.k. poddar, competent authority. slum areas, granting permission for the institution of a suit or other proceeding for obtaining a decree or order for eviction of the petitioner from the suit premises which consists of one room and one godown, be quashed. the respondents to the petition are (1) shri hem chand jain, and (2) shri d.k. poddar. competent authority, slum areas. delhi. 2. respondent no. 1 is the owner of the premises no. 2799 in kinari bazar, dariba kalan delhi - 6, and the petitioner is his tenant in respect of one room and one kitchen (godown) in the said premises. respondent no. 1 filed an application (annexure a) under section 19 of the slum areas (improvement and clearance) act, 1956,.....
Judgment:
ORDER

1. The petitioner, Prithi Singh Jain, filed this petition under Article 227 of the Constitution of India praying that an order (Annexure X), dated 22.12.1970 passed by Shri D.K. Poddar, Competent Authority. Slum Areas, granting permission for the institution of a suit or other proceeding for obtaining a decree or order for eviction of the petitioner from the suit premises which consists of one room and one godown, be quashed. The respondents to the petition are (1) Shri Hem Chand Jain, and (2) Shri D.K. Poddar. Competent Authority, Slum Areas. Delhi.

2. Respondent No. 1 is the owner of the premises No. 2799 in Kinari Bazar, Dariba Kalan Delhi - 6, and the petitioner is his tenant in respect of one room and one kitchen (godown) in the said premises. Respondent No. 1 filed an application (Annexure A) under Section 19 of the Slum Areas (improvement and Clearance) Act, 1956, for permission to institute a suit or proceedings for obtaining a decree or order for eviction of the petitioner on the ground bona fide personal requirement of respondent No.1 for his residence.

3. The petitioner filed a written statement (Annexure B) admitting the tenancy but challenging the ground pleaded for his eviction. He also disputed the extent of accommodation in his occupation mentioned in the application. According to him he was also a tenant with respect to two Saibans besides the room and the kitchen (godown), and had also a right to use the roof for the purposes of sleeping and basking in the sun. As regards his status, he stated that he was hardly earning about Rs. 60/- per month by supplying hosiery goods from shop to shop, and that he had to maintain himself and his wife with the said amount. He thereforee, pleaded that he would not be able to acquire alternative accommodation if evicted.

4. Respondent No.1 filed a replication (Annexure C) reiterating his contentions. He also stated that the son of the petitioner was living in Darya Ganj and earning about Rs. 800/- per month, that the wife of the petitioner was also living with her son, and that the petitioner himself was mostly living with his son at Darya Ganj and was carrying on the business of selling terylene and imported clothes material on the 'Thara' of Radha Fancy Stores Chandni Chowk. Delhi and earning about Rs. 500/- per month.

5. The petitioner filed a counter affidavit (Annexure F) in reply to the aforesaid replication in which he stated that he and his wife were living in the suit premises, that the allegations in the replication to the contrary were false, that his son and his son's wife and children who were living in Darya Ganj came frequently to his house, that he and his wife were living on the sum of about Rs.60/- per month which he was earning by supplying hosiery goods from shop to shop, that it was false to allege that he was carrying on any terylene or cloth business at the 'Thara' of M/s. Radha Fancy Store or any other place, and that he could not get another alternative accommodation within his small income.

6. The competent Authority, by his order (Annexure X), dated 22.12.1970, held that the petitioner and his wife were living in the suit premises, that the petitioner was not carrying on any business of cloth as alleged in the application of respondent No.1 and that the income of the petitioner was only about Rs. 60/- per month as pleaded by him. However, the Competent Authority took the view that since the petitioner stated in his affidavit that his son and his son's wife and children come and stay with him sometimes, it was clear that the petitioner was on speaking terms with his son, and that as no affidavit of the son was filed, he had no option but to include the income of the son viz Rupees 800/- per month in the income of the petitioner. In that view, the Competent Authority concluded that an income of Rs. 860/- per month was available to the petitioner and his son, and that alternative accommodation would be easily available to the petitioner, in case he is evicted. In the result, the Competent Authority granted permission to respondent No. 1 to institute a suit or proceedings for eviction of the petitioner from the suit premises. It is against the said order that the present petition has been filed by Prithi Singh Jain under Art. 227 of the Constitution praying that the aforesaid order of the Competent Authority he quashed.

7. In opposition to the petition, a reply was filed on behalf of respondent No.1.

Shri Satish Chander learned counsel for the petitioner, contended that the Competent Authority ought not to have taken into consideration the income of the petitioner's son in determining the income of the petitioner merely because the petitioner was on speaking terms with his son and no separate affidavit was filed by the son. There is considerable force in the contention of the learned counsel. In the application (Annexure A) under Section 19 of the Slum Areas (Improvement and clearance) Act, respondent No. 1 did not make any mention about the availability of the son's income to the petitioner. In the written statement (Annexure B), the petitioner clearly stated that he was earning his living by supplying hosiery goods from shop to shop and was hardly earning thereby about Rs. 60/- per month which was barely sufficient for his and his wife's maintenance. It was in his replication (Annexure C) that respondent No.1 stated for the first time the petitioner's son was earning about Rs.800/- per month, that the petitioner's wife was staying with the son, and that the petitioner also was mostly staying with his son at Darya Ganj. The said allegations were denied by the petitioner in his counter-affidavit (Annexure F). It was not the case of respondent No. 1 that the petitioner and his son constitute members of a joint Hindu Family. His only allegation was that the petitioner and his wife were living with the son at Darya Ganj. That circumstance by itself cannot and does not necessarily mean that the income of the son was that of the petitioner or that it was available to the petitioner as of right. The observation of the Competent Authority that the petitioner was on speaking terms with his son could not obviously be a ground for treating the income of the petitioner's son as that of the petitioner. The absence of any affidavit of the son in the circumstances was clearly immaterial. The initial burden of proving that the income of the son was available to the father as of right was upon respondent No.1. No evidence at all was adduced by respondent No.1 to establish the same. Respondent No.1 did not plead specifically in his replication that the income of the son was available to the petitioner as of right. He merely stated that the petitioner's son was very well placed earning about Rs.800/- per month, and that the petitioner and his wife were living mostly with the son. The latter allegation was denied by the petitioner. These was thereforee no necessity for the son also to file an affidavit denying the allegations of respondent No. 1 Thus, there was no evidence at all on the record to support the view taken by the Competent Authority that the income of the son was available to the petitioner. The conclusion of the Competent Authority which was not based on any evidence cannot be sustained.

8. Shri L.R. Sharma, learned counsel for respondent No. 1. referred to the decision of I.D. Dua C.J. in Pioneer Chemical Co. v. Suraj Bhan Prem Raj. 1967 Delhi Lt 642, in which the learned Chief Justice observed that a petition under Article 227 is an extra-ordinary remedy by way of superintendence given by the Constitution, and that this Court would interfere under Article 227 only in cases disclosing jurisdictional or serious legal infirmity causing injustice and not remediable by any alternative legal proceeding. The decision cannot be of any assistance to the learned counsel as the view taken by the Competent Authority was as pointed out above, not based on any evidence. As pointed out by V.S. Deshpande, J. in Said-ud-din v. Mahabir Singh. C. W. No. 600 of 1970 decided on 27.11.1970 : AIR1971Delhi240 , it is well established that it is open to this Court to interfere under Art. 227 with a finding of the Competent Authority which is based on no evidence at all.

9. It the income of the son is excluded, the income of the petitioner would only be about Rs.60/- per month. He would not obviously be able to secure alternative accommodation within that small income, and would create a slum is evicted.

10. For the above reasons, the petition is allowed, the order of the Competent Authority, dated 22.12.1970, is set aside, and the application of respondent No.1 is dismissed. In the circumstances, the parties are directed to bear their own costs in this petition.

11. Petition allowed.


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