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Raj Rani Vs. Dwaraka Das and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Misc. (M) No. 105 of 1971
Judge
Reported inAIR1972Delhi208
ActsConstitution of India - Article 227; Slum Areas (Improvement) and (Clearance) Act, 1956 - Sections 19 and 19(4); Evidence Act, 1872 - Sections 115
AppellantRaj Rani
RespondentDwaraka Das and ors.
Appellant Advocate Vijay Kishan, Adv
Respondent Advocate B.P. Sagar, Adv.
Cases ReferredRevti Devi v. Kishan Lal
Excerpt:
.....a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first..........stated in section 19(4) of the act and nothing more, and that the grounds of eviction under the delhi rent control act are completely irrelevant. the non-payment of rent is admittedly not a factor mentioned in section 19(4) of the act. the competent authority was, thereforee, correct in not taking it into consideration.7. the next contention of mr. vijay kishan is that the tenant respondent is estopped from showing that he cannot get alternative accommodation because of his request for two month's period at the time his appeal was decided by the high court. i have already held in civil misc. (main) no.103 of 1971 (smt. raj rani v. amar nath) decided today : air1972delhi206 that the tenant is not estopped from showing that he is not in a position to get alternative accommodation in.....
Judgment:
ORDER

1. The Petitioner has approached this court under Article 227 of the Constitution of India for quashing the orders of the Financial Commissioner and the Competent Authority (Slums) dated May 17, 1971 and March 18, 1971, respectively.

2. The petitioner is the landlady of house No.XII-5720, Street No.3, Nai Chandrawal, Kolhapur Road, Subzi Mandi, Delhi, Dwarka Dass is a tenant in a part of the premises. The petitioners instituted eviction proceedings against the tenant and succeeded in getting the eviction order from the Additional Rent Controller, Delhi. Tenant's appeal to the High Court was dismissed and, at the request of his counsel, he was allowed to months' time to vacate the premises and deliver vacant possession. Since the tenant refused to vacate the premises, the petitioner approached the Competent Authority (Slums) under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter referred to as 'the Act'). It was averred that the tenant was living at Nagpur for the last ten year and was not living in the house in dispute. In answer to this allegation the tenant stated that he was permanently residing in the premises in dispute in Delhi but temporarily he had been posted at Nagpur and he was likely to be transferred back to Delhi at any time and the members of his family were still in the house in dispute. The petitioner had also alleged that the tenant had not paid the rent.

3. The Competent Authority (Slums) came to the conclusion that the tenant was temporarily posted at Nagpur and that the members of his family were residing in the demised premises. The non-payment of rent could not be made the basis of granting the permission. The total income of the tenant was calculated at Rs.438.60 np. Per month and the covered areas in his possession was found to be 170 square feet. It was found that he could not get alternative accommodation at a reasonable rate which he could afford to pay. On these grounds the permission was refused.

4. The financial Commissioner dismissed the appeal of the petitioner. He held that the requirements of the family of the tenant, who was in fact posted at Nagpur, had to be taken into consideration while granting the permission. He was of the view that the poorest of constructions in a non-slum area could be hired at the minimum rate of 35 paise per square foot per month of the covered area, and thus the tenant would be required to pay Rs.59.50 np. Since a person was not expected to pay more than 12% of his income as monthly rent, the tenant could not afford to have similar alternative accommodation in a non-slum area. He thus dismissed the appeal.

5. Article 227 of the Constitution of India confers power of superintendence on the High Courts. It empowers a High Courts. It empowers a High Court - rather lays a duty on it-to see that the subordinate Courts and Tribunals act within the scope of their authority and do not exceed it. The exercise of this power is discretionary and should be used sparingly to correct flagrant violation of law or where grave dereliction of duty on the part of the Tribunal can be shown. It has to be used promoting the cause of substantial justice.

6. Mr.Vijay Kishan, learned counsel for the petitioner, contends that the respondent has not paid rent for a long time and he should not have been allowed to remain in the house without payment of rent. I am afraid this contention has no force. A Bench decision of this Court in C.R.Abrol v. Administrator under the Slum Areas, 1970 Ren Cr 519 has held that the Competent Authority must take into account the factors stated in Section 19(4) of the Act and nothing more, and that the grounds of eviction under the Delhi Rent Control Act are completely irrelevant. The non-payment of rent is admittedly not a factor mentioned in Section 19(4) of the Act. The Competent Authority was, thereforee, correct in not taking it into consideration.

7. The next contention of Mr. Vijay Kishan is that the tenant respondent is estopped from showing that he cannot get alternative accommodation because of his request for two month's period at the time his appeal was decided by the High Court. I have already held in Civil Misc. (Main) No.103 of 1971 (Smt. Raj Rani v. Amar Nath) decided today : AIR1972Delhi206 that the tenant is not estopped from showing that he is not in a position to get alternative accommodation in spite of the said request.

8. Mr. Vijay Kishan also contends that the principle applied by the Slum Authority that a person cannot get alternative accommodation at less that 35 paise per square foot per month of the covered area and that a person is not expected to pay more than 12% of his monthly income towards rent is an unreasonable principle and should not have been applied. I have held in Civil Misc. (Main) No.103 of 1971 : AIR1972Delhi206 , that it is a reasonable principle which needs no interference.

9. Lastly, it is contended that the tenant is in fact living at Nagpur for the last ten years and the question of his getting alternative accommodation under S. 19(4) of the Act does not arise. It is submitted that the tenant-respondent does not in fact need alternative accommodation in Delhi.

10. The petitioner had averred in para 5 of the petition before the Competent Authority as under:

'The respondent is permanently posed at Nagpur and is living at Nagpur for the last over ten years and is not living in the house in dispute.'

The tenant in his counter affidavit showed himself as a resident of the house in question stating at the same time 'presently at 101, Katol Road Colony, Nagpur'. He had in answer to the above-mentioned allegations of the petitioner stated in reply:

'That facts stated in Para 5 of the petitioners affidavit are not correct. I am permanently residing in the premises in dispute in Delhi but temporarily I have been posted at Nagpur and I am liable to be transferred back to Delhi at any time. Members of my family are still in the house in dispute.'

11. The competent Authority (slums), on the basis of these averments by the parties, found that the tenant is posted at Nagpur and his family is continuing to stay on the demised premises including the son, Om Parkash, who is also a government employee. It was thus held that the requirements o f the family of the tenant must be deemed to be the requirements of the tenant as such.

12. Section 19(4) of the Act is in the following terms:

'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.

It requires the Competent Authority to take into account whether alternative accommodation within the means of the tenant would be available to him if he were evicted. This situation would arise if the tenant is living in the premises in dispute. In case he is not living at the place, the question of his eviction does not arise, and so his need for alternative accommodation cannot be said to exist. The word 'tenant' is nowhere defined in this Act. The tenant is a person who holds under another under certain terms and conditions. This benefit of contractual right extends only to the person who has entered into the agreement. In case, he dies, his successors do not ordinarily succeed to the tenancy. The members of his family, thereforee, cannot derive any advantage in their own right. In Smt, Revti Devi v. Kishan Lal, 1970 Ren Cr 71 V.B.Deshapande, J., of this Court held that wife is not included in the word 'tenant' under the Delhi Rent Control Act. It is true that the word 'tenant' has been defined under the Delhi Rent Control Act to mean 'any person by whom or on whose account or behalf the rent of any premises is, or but for a special contract would be payable . . . . . . ' This definition, however, does not in any manner restrict the meaning of the word 'tenant' as used in the Slum Areas (Improvement and Clearance) Act. Section 19(4) of the Act, reproduced above, shows that the legislature had taken into account the fact that a tenant is ordinary living in the premises in dispute at the time the question of granting permission to the landlord for eviction arises.

13. In the instant case, the facts show that the tenant has been living at Nagpur in connection with his service for the last ten years. During the course of arguments. I had asked his learned counsel if the tenant has since come back to Delhi and he had informed me that he was still there and was likely to remain there for another few years. In these circumstances, there is a no question of his needing alternative accommodation in Delhi. The Competent Authority (Slums), thereforee, went wrong in taking into consideration the fact that the tenant would need alternative, accommodation if he were evicted from the premises in dispute.

14. I thus find, it is a fit case where interference is called for. The impugned order is, thereforee, quashed and set aside, and the petitioner is granted the necessary permission for executing the decree of eviction obtained by the petitioner in her favor against by tenant. Petitioner will be entitled to his costs.

15. Petition allowed.


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