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Raj Rani Vs. Moolan Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.M. (Main) No. 102 of 1971
Judge
Reported inAIR1972Delhi236
ActsHouses and Rents-Slum Areas (Improvement and Clearance) Act, 1956 - Sections 19; Code of Civil Procedure (CPC), 1908 - Sections 9 and 21; Constitution of India - Articles 226 and 227
AppellantRaj Rani
RespondentMoolan Bai and ors.
Appellant Advocate Vijay Kishan and; Swatanter Kumar, Advs
Respondent Advocate L.D. Adhlakha, Adv.
Cases ReferredPioneer Traders v. Chief Controller of Imports and Exports
Excerpt:
tenancy - execution of order - section 19 of houses and rents-slum areas (improvement and clearance) act, 1956, sections 9 and 21 of code of civil procedure, 1908 and articles 226 and 227 of constitution of india - order of eviction against tenant passed on grounds of personal necessity - landlady wished to execute decree - petitioner-landlady made application under section 19 before competent authority which was dismissed - petition filed by land lady for relieving her of consequences of having filed an application for permission to execute against respondents under section 19 - contended that there was no necessity to apply to competent authority for permission to evict tenant - permission of competent authority under act of 1956 not necessary to execute decree of eviction - order of..........for vacating the property.2. an application was presented to the competent authority under the slum areas (improvement and clearance) act, 1956 on 5-5-1970. the same was dismissed on 12-3-1971 on the ground that the respondents could not get alternative accommodation. an appeal which was preferred to the financial commissioner by the landlady was also dismissed on 17-5-1971.3. though a number of points were taken in the petition the main argument on behalf of the petitioner was that the application to the competent authority for permission to evict the respondents was itself unnecessary and was misconceived. this stand has been explained in the following manner: the respondents who were imp leaded as l. rs., of chetan dass in the appeal before the rent control tribunal were.....
Judgment:
ORDER

1. The petitioner (landlady) had filed a petition to evict the late Chetan Dass on the ground of personal necessity and non-payment of rent in April, 1965. The application was dismissed on 15-3-1966, but the landlady had filed an appeal. During the pendency of that appeal Chetan Das died and his legal representatives were brought on record. The appeal was accepted on 9-3-1967 and eviction was ordered on the ground of personal necessity. The second appeal preferred to this Court was dismissed on 10-3-1970 two months time having been granted for vacating the property.

2. An application was presented to the Competent Authority under the slum Areas (Improvement and Clearance) Act, 1956 on 5-5-1970. The same was dismissed on 12-3-1971 on the ground that the respondents could not get alternative accommodation. An appeal which was preferred to the Financial Commissioner by the landlady was also dismissed on 17-5-1971.

3. Though a number of points were taken in the petition the main argument on behalf of the petitioner was that the application to the Competent Authority for permission to evict the respondents was itself unnecessary and was misconceived. This stand has been explained in the following manner: the respondents who were imp leaded as L. Rs., of Chetan Dass in the appeal before the Rent Control Tribunal were themselves not tenants of the property since Chetan Dass himself must, by reason of the order of eviction that was ultimately passed with his L.R., on record, be deemed to have been a statutory tenant having no estate to assign or transfer in respect of such tenancy and which also did not devolve on any one on his death. For this reason it is contended that the persons who were brought on record as L.Rs., to Chetan Dass were not tenants of the property and the question whether alternative accommodation within their means would be available to them if they were evicted did not fall for consideration before the Competent Authority. It is further contended that if this is the true legal position the mere fact that an application was made under Section 19 of the Slum Areas (Improvement and Clearance) Act for permission to evict the L.Rs., of Chetan Dass who were imp leaded in the appeal could not confer jurisdiction on the Competent Authority if there was none and that the petitioner would not be precluded from showing such want of jurisdiction on the part of the Competent Authority despite the petitioner having invoked his jurisdiction.

4. It was held by Shah, J.,(as his Lordship then was) in Anand Nivas Pvt. Ltd., v. Anandji Kalyanji's Pedhi, : [1964]4SCR892 that a statutory tenant of a property had no interest in the property occupied by him except that he enjoyed the protection against eviction by the said statute. It was further held that even a sub-lessee from a statutory tenant acquired no right of a tenant in the premises occupied by him.

5. In South Asia Industries Private Ltd., v. S.Sarup Singh, : [1965]3SCR829 the Supreme Court upheld the order for eviction passed against the assignee from a company (lessee) despite the company having gone into liquidation after the application for eviction was field. Sarkar, J.(Mudholkar, J. dissenting) speaking for himself as well as Bachawat, J., held that if the tenant became extinct without leaving any successor on whom the tenancy devolves an order could be made against a person who took an assignment of the lease from the tenant before it became extinct. Observing that if the assignee or a sub-tenant was entitled to oppose an order for eviction that would be a reason by itself for passing an order of eviction against such a person, the majority repelled the contention that since an assignee was not a tenant no order for eviction could be passed against him under Section 14(1)(b) of the Delhi Rent Control Act, 1958. Bachwat, J., pointed out that since the tenant company had been dissolved and ceased to exist no one could be substituted in its place and observed that the proceedings could continue against the assignee alone who was already made a party along with the tenant to the proceedings for possession.

Shri Vijay Kishan, learned counsel for the petitioner landlady, also relied upon a decision of P.N.Khanna, J., in Life Insurance Corporation of India v. Megh Raj Mannulal 1970 Ren Cr 794 where it was pointed out that Order 22 of the Civil Procedure Code was not applicable to the proceedings under the Delhi Rent Control Act, 1958 and since the Rent controller had been given such powers under the Civil Procedure Code as may be prescribed and Rule 23 of the Delhi Rent Control Rules, 1959 having stated that the Rent Controller would be guided by the provisions of the Civil Procedure Code as far as possible in matters not specifically provided under the Act, Section 146 of the Civil Procedure Code became attracted and legal representatives could be brought on record by invoking that section which provided that save as otherwise provided under the Code of Civil Procedure or by any law for the time being in force a proceeding which can be taken by or against any person may also be taken by or against any person claiming under him. In this view it would not matter that the application to implead the heirs of Chetan Dass was itself made under Order 22.

6. Shri Vijay Kishan further relied upon the fact that an order for eviction under the Delhi Rent Control Act is resjudicata against the same party in a subsequent proceedings and thereforee the very fact of a decree for eviction having been passed against the L.Rs., of Chetan Dass precludes them from contending that there was any contractual tenancy between the landlord and Chetan Dass for there would have been no jurisdiction to pass a decree for eviction under the Delhi Rent Control Act unless Chetan Dass was merely a statutory tenant as opposed to a contractual tenant. The L.Rs., of Chetan Dass could have put forward the contention in the appeal before the Rent Control Tribunal that Chetan Dass was a contractual tenant, that the tenancy was subsisting and had not been determined by a proper noticed to quit and , thereforee, the petition for eviction was not maintainable. This contention would no doubt have been open to them, but not having put forward the same they could not now say, after suffering a decree for eviction, that Chetan Dass was anything other than a statutory tenant, in which event no tenancy right would pass on to Chetan Dass's heirs. It has been held by Deshpande, J., in Madam Lal v. Competent Authority 1969 Ren Cr 565 that findings under the Rent Act would operate as rest judicata in so far as they pertain to matters decided before the final decision terminating the proceedings under the Rent Appellant

7. It has also been decided by this Court in a number of cases that the status of the person which has to be determined under Section 19 of the slum Areas (Improvement and Clearance) Act, 1956 is the status of the tenant himself and not of any other person. If the person concerned was in fact the tenant he would in spite of a decree for eviction passed against him under the provisions of the Delhi Rent Control Act, 1958, still be a tenant within the meaning of Section 19 of the Slum Areas Act. This was so held by a Full Bench of five Judges of this Court in Bardu Ram v. Ram Chander, 0043/1972 : AIR1972Delhi34 . But the position is different if the persons against whom an order for eviction was passed were not tenants but still had been brought on record in the circumstances explained above.

8. In Joint Hindu Family, Firm Ram Chand Siri Ram v. Mangal Kumhar, (Ex.S.A.No.107-D of 1966 decided by P.N.Khanna, J., on 16-3-1971 (Delhi), it was held, following the decision of the Supreme Court in Calcutta Credit Corporation Ltd., v. Happy Homes Pvt. Ltd. : [1968]2SCR20 (similar to the earlier decision in : [1964]4SCR892 ) that since the statutory tenant has merely a personal right to protect his possession, and has no estate or interest in the premises occupied by him, the L.R., of the statutory tenant could not be considered to be a tenant within the meaning of Section 19 of the Slum Areas Act. The Full Bench decision in Bardu Ram's case was referred to and distinguished. P.N.Khanna, J., thereforee, observed that 'there is no escape from the conclusion that Section 19 of the Slum Areas Act, which offers protection from the eviction to the tenant, provides no similar protection to his legal representative, who cannot plead it as a bar against his eviction.'

9. Shri L.D. Adhalkha, learned counsel for the respondents, sought to distinguish the above-said decision on the ground that in that case the tenant had died after the order of eviction was passed whereas in the present case the petition for eviction was dismissed in the first instance but was allowed by the Rent Control Tribunal in appeal after the tenant (Chetan Dass) had died. But it seems to me that this cannot sufficiently distinguish the above-said decision of P.N.Khanna, J., in the view that the order of eviction would not have been legally possible if Chetan Dass was not a statutory tenant, and for that very reason his legal representatives could not be considered to have acquired by devolution any interest of Chetan Dass as tenants.

10. It is fairly clear that all these complicated steps in the reasoning of the petitioner's argument before me could not have been clearly known or perceived at the time when the application was filed under Section 19 for permission. The arguments advanced before me rested on the decision of P.N.Khanna, J., that Section 19 of the Slum Areas Act does not apply to heirs of a statutory tenant. In Siri Kishan v. Mahabir Singh, C.W.P.No. 1116 of 1970 decided on 31-3-1971 (Delhi). I had held that the expression 'tenant' in Section 19 of the Slum Areas Act did not include a sub-tenant and that the status of the person to be decided with reference to Section 19 of the Slum Areas Act was not the status of the sub-tenant in other words the expression 'tenant' did not include a 'sub-tenant'.

11. The only further question that arises for consideration is whether by reason of the petitioner having made an application under Section 19 of the Slum Areas Act before the Competent Authority, she is in any manner debarred from raising the contention that there is no necessary to apply to the Competent Authority for permission to evict the heirs of Chetan Dass , against whom the order of eviction was obtained before the Rent Control Tribunal. Shri Vijay Kishan relief upon a number of authorities for the position that consent by itself cannot confer jurisdiction where there is none. Reliance was placed on Imperial Tobacco Co., of India v. State, : (1971)ILLJ350Cal , where Basu, J. held that it is the business of the supervisory Court, whether under Article 226 or under Article 227 of the Constitution to keep the statutory authority within the bounds of its limited authority and that a petition under either of these Articles should not be thrown out on the ground that the objection concerning want of jurisdiction was not taken before the Tribunal, the reason being that where there is inherent want of jurisdiction consent cannot confer jurisdiction. Similar observations have been made by the Supreme Court in Kiran Singh v. Chaman Paswan, : [1955]1SCR117 , and in Pioneer Traders v. Chief Controller of Imports and Exports : 1983(13)ELT1376(SC) . In the former case Venkatarama Aiyar, J. observed that the defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very roots of jurisdiction of the authority or of the court to pass a decree, and such a defect cannot be cured even by consent of parties.

12. In the above situation, which I am free to state is so complicated and complex, I can see no reason to deny relief to the petitioner when she states that she must be relieved of the consequences of having filed an application for permission to execute against the respondents under Section 19 of the Slum Areas Act and of the further appeal that she filed against the order of the Competent Authority declining to grant permission to execute the order of eviction obtained against them. If the legal position is, as I apprehend it to be, that permission of the Competent Authority under the Slum Areas Act is not necessary to execute the decree for eviction against the respondents 1 to 4, then they have been found to be persons of not sufficient means is not at all material. In these circumstances, I feel, that to allow the order of dismissal of the application under Section 19 of the Slum Areas Act on the merits to stand would be to allow to perpetrate an order passed without jurisdiction. Since as it has been pointed out so often, that it is the duty of the court to exercise supervision under Articles 226 and 227 of the Constitution to keep a Tribunal exercising quasi judicial powers within its jurisdiction, it seems necessary to quash the order of the Competent Authority as well as of the Financial Commissioner in appeal by dismissing the application for permission under Section 19 of the Slum Areas (Improvement and Clearance) Act, not on the merits as they have done, but to dismiss the petition on the ground that the status of respondents 1 to 4 did not fall to be decided under Section 19 of the Slum Areas Act. A limited relief of the above-said description alone seems to be called for and the impugned orders are quashed accordingly. There will be no order as to costs.

13. Petition allowed.


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