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Bishan Singh Vs. Kala Wati and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.M. (M) 118 of 1970
Judge
Reported inAIR1976Delhi133
ActsSlum Areas (Improvement and Clearance) Act, 1956 - Sections 19; Constitution of India - Article 227
AppellantBishan Singh
RespondentKala Wati and anr.
Appellant Advocate G.C. Lai, Adv
Respondent Advocate Bharat Inder Singh, Adv.
Excerpt:
.....dispute had been taken almost six years after the other premises. on the question of status ,the appellate authority negetived the contention of the tenant that he was a poor tailor earning 125/- per month on the ground that the tenant had admittedly fought municipal corporation election in the year 1967 and could not have done so on the basis of the alleged income and that 'it is also unbelievable that a tailor in delhi would be earning only 125/- per month when an ordinary labour earns anything between 6/- to 7/- per day as daily wages. ' and that 'his mere assertion without specifically disclosing and substaining as to why and how and from where he earns 125/- as an established tailor creates a presumption against the respondent ,who has to my mind failed to come out with clean..........petition under article 227 of the constitution of india, the tenant challenges an order of the appellate authority under the slum areas (improvement and clearance) act, 1956, hereinafter called 'the act', by which it has reversed the order of the competent authority under the act -refusing permission to the landlady to initiate eviction proceeding as against the tenant.2. the proceedings have had a somewhat chequered history. the dispute relates to a one-room tenement being no. 4298. situated in basti nand ram. gali barna khurd sadar bazar, delhi. on june 14, 1966. the landlady applied to the competent authority under the act for permission to evict the tenant, inter alia. on the ground that the tenant had been in possession of alternative accommodation. being premises no- 4284, gall.....
Judgment:
ORDER

1. By this petition under Article 227 of the Constitution of India, the tenant challenges an order of the appellate authority under the Slum Areas (Improvement and Clearance) Act, 1956, hereinafter called 'the Act', by which it has reversed the order of the Competent Authority under the Act -refusing permission to the landlady to initiate eviction proceeding as against the tenant.

2. The proceedings have had a somewhat chequered history. The dispute relates to a one-room tenement being No. 4298. situated in Basti Nand Ram. Gali Barna Khurd Sadar Bazar, Delhi. On June 14, 1966. the landlady applied to the Competent Authority under the Act for permission to evict the tenant, inter alia. on the ground that the tenant had been in possession of alternative accommodation. being premises No- 4284, Gall Barna, Sadar Bazar. Delhi, in the same locality. The application was resisted by the tenant on the ground that the tenant was a man of meager means and had not taken any alternative accommodation. It was contended that the premises in dispute had been taken and was being used as a residence while the other premises was a shop where the tenant was carrying on tailoring business. The landlady who filed an affidavit to the effect that the tenant was carrying on business of textile commission agent and was working as such in Delhi, Bombay and Ahmedabad and was earning about Rs. 1.0001- per month contested the claim of the tenant with regard to his means. In a rejoinder, the tenant filed affidavits of Ganga Das, Prem Chand, Dwarka Parsad and Bharat Singh along with the certificates of two gazetted officers supporting the claim of the tenant that he was hardly able to earn Rs. 100/- or Rs. 125/- per month on account of tailoring business the allegation that the tenant was carrying on business of commission agent was denied. By an order made on April 29 1968, the competent authority refused permission holding that on the material placed before the authority, the tenant was not earning more than Rs. 125/- per month on Account of tailoring business. It was further held that the tenant was residing in the premises in dispute with his family and was carrying on business in the other premises. On the landlady's appeal, the appellate authority set aside the order of the competent authority and remanded the case for fresh decision. While the appellate authority did not advert to the question of the means of the tenant, it felt that the real issue was if the tenant had acquired the other premises. On remand the competent authority again refused permission holding that, on the evidence on record, he was satisfied that the premises in dispute had been taken almost six years after the other premises. It was further held that while the premises in dispute had been taken for residence, the other premises was a shop and could not, thereforee, be said to be an alternative premises. On the question of status of the tenant, the competent authority reiterated its earlier finding that the tenant was a tailor earning bout finding that the tenant was a tailor earning about Rs. 125/- per month and had to support a family of six persons and, thereforee, would create slums if evicted. The contention of the landlady that the tenant was earning 1000/- per month as a textile agent was negetived.On appeal , the appellate authority has by impugned order reversed the order of the competent authority and granted the necessary permission to the landlady. On the question of the availability of the alternative accommodation, the appellate had been taken by the tenant at more or less the same time. It was further held that the availability of the accommodation would, thereforee, no t be a ground to permit the eviction of the tenant without reference to the evidence that the tenant was using both the premises for residential purposes and that ' he may or may not be using either or both of them for business purpose. On the question of status , the appellate authority negetived the contention of the tenant that he was a poor tailor earning 125/- per month on the ground that the tenant had admittedly fought Municipal Corporation election in the year 1967 and could not have done so on the basis of the alleged income and that 'it is also unbelievable that a tailor in Delhi would be earning only 125/- per month when an ordinary labour earns anything between 6/- to 7/- per day as daily wages.' It was further pointed out that the contention of the tenant was , thereforee not acceptable 'particularly when he and his wife have three tenancies in their favor.', the third being a shop allotted to her in Rama Krishna Puram. The appellate authority further observed that ' it cannot be denied that the responsibility to establish that the respondent was a person deserving of the protection provided by the slum act solely rested on him.' And that ' his mere assertion without specifically disclosing and substaining as to why and how and from where he earns 125/- as an established tailor creates a presumption against the respondent , who has to my mind failed to come out with clean hands to establish his status as to be deserving under the protection of the act.' The appellate authority , thereforee, held that ' the respondents income from the tailoring profession and other commission jobs that he dabbles in does not amount to less than 1000/- per month which amount I consider sufficient to provide respondent with a status a sufficient means to enable him to find alternative accommodation in case of his eviction from the demised premises.' It was further held that even other wise' with his having residential accommodation in premises No.4284 and professional accommodation in the shop allotted to his wife in Rama Krishna Puram, this would not be a case where the respondent must necessarily create a slum accommodation in case of his eviction from the demised premises being ordered. 'During the pendency of the petition in this court and in absence of any stay of operation of the impugned order, the landlady filed an application for the eviction of the tenant and succeeded in obtaining an order for the eviction of the tenant from the Additional Rent Controller who, by order for his order of September 18, 1974 held that the tenant was liable to be evicted on the ground of personal bona fide need of the landlady. The Additional Rent Controller, however returned the finding that the tenant could not be said to have acquired any other residential premises nor had it been established that neither the tenant nor any member of his family has been staying in the premises in dispute for a period of six months prior to the filing of the petition as alleged by the landlady. The plea of eviction based on sections 14(1)(h) and 14(1)(d) of the Delhi Rent Control act was, thereforee, dispelled. The order of the Add, Rent controller has since been confirmed by the Rent Control Tribunal and a Second Appeal is said to be pending in this Court.

3. The first ground on which the impugned order is assailed on behalf of the petitioner is that it suffers from that the tenant was using both the fatal infirmity of being based on a wholly erroneous approach to the question of onus to establish the status misses for residential purposes and that and means o-f the tenant. It is contended that it was, the landlady's application for Permission to evict the tenant 'he may or may not be using either grand it was, thereforee, for the landlady to establish that the tenant was possessed of sufficient means and status both of them for business purpose.' Once as to disentitle him to the protection of the Statute and that the onus shifts to the tenant to establish by the question of status, the appellate adducing all such evidence as the landlady would ordinarily be in a position to do. It was further contended that in theorist negative the contention of the present case no attempt was made by the landlady to Produce any evidence with regard to the status and the tenant that he was a poor tailor earning means of the tenant apart from the vague and indefinite allegations in her own affidavit, It was, thereforee, Rs. 125/- per month on the ground that contended that the observation of the appellate authority that the responsibility to establish that the tenant was- the tenant had admittedly fought Municipal Person deserving of the protection 'solely rested on him' could not be justified.

4. On the other hand, it was contended on behalf of the landlady that the means and, status of the tenant was a fact which was peculiarly within the personal knowledge of the tenant and it is essential for the tenant to establish such a fact to justify the protection of the Statute and that whatever material was available to the landlady had been -placed by her in the course of her affidavit.

5. It is true that it is the landlord who approaches the Authority under the Act for permission to evict the tenant and one of the matters that the authority has to consider while granting or refusing permission is whether having regard to the status and means of the tenant he would be able to afford alternative accommodation if evicted and would not create further slum In that sense, thereforee. it in initially for the landlord to prove the factum of the status and means of the tenant so as to justify the permission Raving regard, however, to the nature of the fact which ordinarily would be within the Peculiar knowledge of the ten-ant alone, the burden cast on the landlord would be a very light one and the moment the landlord Produces such evidence as he was able to marshal on the question of the status and means of the tenant, the burden would shift on the tenant who alone is in a position to disclose his true means. Resources and status and justify the Protection of the statute that he seems in defense to an application for permission. In the present case, the landlady filed an affidavit alleging that the tenant was carrying on agency business and was earning Rs. 1,000/- per month. It was further stated in the affidavit that the tenant was well-to-do man and had acquired alternative accommodation for his residence and, that his eviction would not involve the creation of any further slum. In view of this material, the onus shifted to the tenant to disclose the source of income and to establish that. having regard to his means and status, tie was entitled to the protection of the Statute. This contention must, thereforee, fail.

6. Lastly, it is contended that the conclusion of the appellate authority with regard to the status and means of the tenant has been arrived at without any material on the records, is based on conjectures and surmises and in determining the question. the appellate authority has ignored the evidence on the question 'Produced on behalf of the tenant.

7. Learned counsel for the landlady, on the other hand, contends that there was adequate material to justify the findings arrived at by the appellate authority that the findings arrived at by the appellate authority that the appellate authority was entitled to rely on circumstantial evidence and to draw appropriate inference from admitted facts and that this Court would not interfere with the findings in the present proceedings even if it was based on an improper assessment of the material or even if the appellate authority may have drawn wrong inference from the circumstances or may have even ignored some material on the record.

8. In order to deal with this contention, it is necessary to bear in mind the limited nature of the jurisdiction of this Court under Article 227 of the Constitution of India. It has been held by the Supreme Court that the power of superintendence of High Courts under the aforesaid Article being extraordinary must be exercised most sparingly and only in appropriate cases and could not be invoked to correct an error of fact which only a superior Court could do in exercise of its statutory Power as a Court of appeal. It was further held that the High Court could not in the case of exercising its jurisdiction under Article 227 convert itself into a Court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate Court or tribunal final on facts. It was further Pointed out that while exercising such jurisdiction, the High Court cannot interfere with findings of fact recorded by the subordinate Court or tribunal -and, its function was limited to see that the subordinate Court or tribunal functions within the limits of its authority and that it -could not correct mere errors of fact by examining the evidence and appreciating it. It was further held that the High Court could not have interfered in the findings of fact recorded in that case by the District Court on the ground that the District Court misread a part of the evidence and ignored another part of it.

9. The material on the record and the findings recorded by the appellate authority may now be examined in the context of the aforesaid principles. The authority and the appellate authority which had dealt with the matter on two specific occasions were hitherto concerned with two questions, namely, whether the tenant had acquired alternative residential accommodation and as to the means of the tenant. The first question does not survive at this stage because it was conceded before me that during the pendency of the present proceedings. the Additional Rent Controller and the Rent Control Tribunal have returned concurrent findings of fact that the tenant had not acquired any other residential accommodation and it could not be said that the tenant or the members of his family have not been living in the demised Premises so as to render the tenant liable to ejectment either under Section 14(1)(d) or Section 14(1)(h) of the Delhi Rent Control Act, 1958. These findings have become final because being against the landlady. the landlady had at no stage challenged these findings and the Second Appeal Pending in this Court was filed by the tenant in relation to the findings that the landlady bona fide required the premises for her personal use. It is, thereforee, unnecessary to pursue this Point any further.

10. That, thereforee, leaves for consideration the material on the question as to the means of the tenant in the context of his ability to acquire alternative residential accommodation. if evicted. Without creating a further slum. On this question, the appellate authority had before it, in the first instance, the affidavit of the landlady that the tenant was not carrying on tailoring business but had been working as a textile commission agent in various places and earning more than Rs. 1,000/per month and that he was a well-to-do man. The further material available to the appellate authority was the admission made at that stage, as indeed, before me, that the tenant has fought Municipal election from the area in 1967, though unsuccessfully. As against this, the authority had the affidavit of the tenant himself that he was only earning Rs. 125/- per month as a tailor with which he was supporting six members of his family including fairly grown-up children and similar affidavits from four other persons referred to above besides two certificates from certain Government servants supporting the claim of the tenant that he was hardly earning more than Rs. 1251- per month from the tailoring business. It was not disputed before me, and is even otherwise well settled, that the authority. as induce the appellate authority were entitled to draw reasonable inference from the facts established on the record, the material available and other circumstances and it was not disputed, that if the conclusion was based on an inference that could Possibly be drawn from the existing material and the other circumstances, it would not be open for this Court to interfere under Article 227 of the Constitution of India even if this Court feel that the said material may equally justify a contrary inference or a different conclusion. The appellate authority has expressed the view that the statement of the tenant that he was merely earning Rs. 125/- per month from tailoring business was hard to believe having regard to the current norms of income of unskilled workmen, particularly in the context of the admitted fact that the tenant who had, fought a municipal election in 1967, even though unsuccessfully, must be a person with influence and has, thereforee, not made true disclosures with regard to his means. To my mind. such -an inference is not only a possible inference from the material and the circumstances but is fairly reasonable one which the appellate authority was entitled to make. It is true that in mating the contention of the tenant, the appellate authority has not specifically discussed the four affidavits and -the two certificates filed by the tenant but these affidavits and certificates hardly improve the case of the tenant because they do not go beyond, what the tenant himself says. namely. that he was not earning more than Rs. 1251- per month. If the statement of the tenant could not be belie- ed because it is inherently unbelievable, I do not see how the statement could become believable merely because it is multiplied six times over. A tribunal is entitled to reject a statement or a contention as being inherently untenable or unbelievable having regard to the common course of events and the surrounding circumstances and that is exactly what the appellate authority has done in the present case.

11. In the result it must, thereforee, be held that the impugned order does not suffer from any infirmity, which may justify interference under Article 227 of the Constitution of India. The petition must, thereforee, fail and is hereby dismissed but, in the circumstances, leaving the parties to bear their respective costs.

12. Petition dismissed.


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