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Harbhajan Singh Vs. Shakuntala Devi Sharma and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.M. (M) 129 of 1974
Judge
Reported inAIR1976Delhi175; 12(1976)DLT266; 1976RLR178
ActsCode of Civil Procedure (CPC), 1908 - Order 26, Rule 10(2); Slum Areas (Improvement and Clearance) Act, 1956 - Sections 19(1)
AppellantHarbhajan Singh
RespondentShakuntala Devi Sharma and anr.
Appellant Advocate M.S. Vohra, Adv
Respondent Advocate J.P. Chopra and ; S.B. Gupta, Advs.
Excerpt:
.....tenancy of his son - matter remanded for fresh decision. - - that the tenant bad acquired alternative accommodation in wazirpur colony for his residence; the commissioner then went to inspect the wazirpur premises and found it to be a well-furnished house and reported that on his enquiry in the locality, he was told that the tenant was residing there with his son, amrik singh. 500. the other affidavits by and large, followed the same pattern and fully supported the contention of the tenant that he has been residing as well as carrying on business in the premises in dispute and that his son amrik singh was living with his family and certain other members of the family in the wazirpur premises......the wife of amrik singh. the report concludes as under : --'from this, i conclude that harbhajan singh is residing at no. 1-212, wazirpur colony, delhi with his son.'objections were filed to this report on behalf of the tenant. with a view to rebut the allegations landlady and the finding of the commissioner, the tenant filed affidavits of bakhat ram singh, sucha singh, gur bax singh, joginder singh, attaullah, amrik singh and santokh singh. according to bakhat ram singh, the tenant was in possession of the demised premises and was using it partly for his residence partly for his business and the tenant's son amrik singh was residing in the wazirpur colony. it was further stated that the monthly income of the tenant varies from rs, 400 to rs. 500. the other affidavits by and large,.....
Judgment:
ORDER

1. By this petition under Article 227 of the Constitution of India, the tenant assails the order of the Competent Authority, under the Slum Areas (Improvement and Clearance) Act, 1956, hereinafter called 'the Act', by which the authority granted permission to the landlady, respondent No. 1 herein, to institute proceedings for his eviction.

2. The landlady sought permission under Section 19(1)(a) of the Act from the Competent Authority to institute proceedings for the eviction of the tenant from the demised premises on the grounds that the premises, which had been let for a residential purpose was being misused for a commercial purpose; that the tenant bad acquired alternative accommodation in Wazirpur Colony for his residence; that the tenant had 'deserted the premises' for the last over 6 months; and that the tenant had unauthorisedly sublet or parted with the possession of the premises. The application was resisted on behalf of the tenant and it was contended that the premises had been let out for residential-cum-commercial purpose and that the tenant was using the premises partly for the purpose of his business and partly for residence and that he and his wife were residing in the premises. It was further alleged that the premises in Wazirpur Colony had been taken on rent by the tenant's son, Amrik Singh who was residing there with his family and brothers. The allegations of subletting and parting with possession were denied. The tenant sought the protection of the Authority on the ground that the monthly income of the tenant varies between Rs. 400 and Rs. 500.

3. In the course of the proceedings, the Authority appointed, at the instance of the landlady, a local Commissioner and directed him to proceed immediately to the demised premises and to the Wazirpur premises and to report as to who were in occupation of the two. The local Commissioner submitted his report, according to which he first visited the demised premises and recorded the statement of certain persons including one found present there with a view to verify as to who residing in the said premises, and to was being put. It is further made out that apart from recording the statements, the local Commissioner also inspected the premises and found that, except a small room in the verandah and kitchen in the court-yard, the rest of the premises was being used for storage of old truck tyres. It was further made out that having regard to the type of utensils lying in a portion, which was not being used for storage, and the extent of the accommodation it could be inferred that 'no man of status or even a middle class person' could possibly be Residing there. It was further reported that one Atabullah was residing there with his son and was working at the shop of the tenant. The Commissioner concluded that the tenant could not be residing in the premises in dispute. It was further pointed out that neither the tenant nor any member of his family was present at the premises when the spot was inspected but while the Commissioner was there, a lady, who claimed to be the wife of the tenant, was brought there. The Commissioner then went to inspect the Wazirpur premises and found it to be a well-furnished house and reported that on his enquiry in the locality, he was told that the tenant was residing there with his son, Amrik Singh. The Commissioner, however, pointed out that the persons who gave this information, 'did not agree to get their statement recorded '. The Commissioner also mentioned that also mentioned that while Paramjit Kaur came there claiming to be the wife of Amrik Singh. The report concludes as under : --

'From this, I conclude that Harbhajan Singh is residing at No. 1-212, Wazirpur Colony, Delhi with his son.'

Objections were filed to this report on behalf of the tenant. With a view to rebut the allegations landlady and the finding of the Commissioner, the tenant filed affidavits of Bakhat Ram Singh, Sucha Singh, Gur Bax Singh, Joginder Singh, Attaullah, Amrik Singh and Santokh Singh. According to Bakhat Ram Singh, the tenant was in possession of the demised premises and was using it partly for his residence partly for his business and the tenant's son Amrik Singh was residing in the Wazirpur Colony. It was further stated that the monthly income of the tenant varies from Rs, 400 to Rs. 500. The other affidavits by and large, followed the same pattern and fully supported the contention of the tenant that he has been residing as well as carrying on business in the premises in dispute and that his son Amrik Singh was living with his family and certain other members of the family in the Wazirpur premises. These affidavits also controvert the allegations of subletting or of parting with possession of the demised premises.

4. By an order made on February 2, 1974, the Authority granted permission to the landlady to institute proceedings for the eviction of the tenant holding that it was 'convinced that the respondent has parted with the possession of the disputed, premises as alleged by the petitioner and has his own independent separate business premises and. residential accommodation and thus in no way is entitled to protection'. In support of the aforesaid conclusion, the Authority has solely relied on the report of the local Commissioner. The objections to the report filed by the tenant though referred to in the report were neither considered nor decided. No attention was devoted to any of the numerous affidavits filed on behalf of the tenant in support of his contention.

5. The first contention urged on behalf of the tenant is that the report of the Commissioner and the evidence recorded by him and enclosed with the report did not constitute legal evidence and could not, thereforee, be considered by the Authority unless the Commissioner had proved the report as a witness and had been subjected to cross-examination. This contention, to my mind, is untenable because on the principle incorporated in Rule 10 (2) of Order 26 of the Code of Civil Procedure, the report and the evidence would be evidence in the proceedings in which the Commissioner is appointed. Sub-rule (2) of Rule 10 is in the following terms:-

'The report of the Commissioner and the evidence taken by him (but not the evidence without the report)shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.'

It is obvious from the aforesaid sub-rule that the report of the Commissioner and the evidence, although not the evidence without the report, would be evidence in the proceedings in which the Commissioner is appointed although the Court has the power, as indeed, the parties a right to examine the Commissioner personally in the Court touching any of the matters referred to by him in the report or as to the manner in which he has made the investigation. In the present case, the Commissioner had been appointed in the presence of both the parties. The parties were, thereforee, aware that the Commissioner had been deputed to make a local investigation. The report of the Commissioner along with the evidence had been duly submitted in the Court. Although the tenant submitted his objections to the report but made no attempt either to summon the Commissioner or to seek an opportunity to cross-examine the Commissioner.

6. It is next contended that the tenant having filed objections to the re port, the Authority was bound to consider and decide the objections before relying on the report or the statements recorded by the Commissioner. This contention appears to me to be sound because even though the Authority has referred

to the objections filed by the tenant to the report, it has not dealt with various objections or recorded any conclusion with regard to it and has merely contented itself by observing that 'the perusal of the same simply provides an impression that he has tried to circumvent the matters with no specific evidence that the

disputed premises have not been sublet by him'. It is significant to mention that in the objections to the report, the tenant had alleged that the Commissioner had over-stepped the limits of the direction given by the Authority inasmuch as the Commissioner had been directed to inspect the premises and had not been

authorised to examine the witnesses. It was further alleged that the Commissioner was biased and that his report should, thereforee, be ignored. Since the Commissioner has not been examined by the Authority, the tenant obviously had no opportunity to assail the report or the manner in which the investigation had been

carried out. This could have been done by the tenant only by filing objections to the report which the tenant did and that being so, it was obligatory on the Authority to deal with the objections. The report land the material submitted along with it could have been used for the purpose of the proceedings only after the objections had been overruled.

7. It is next contended that, in any event, the report and the material enclosed by the Commissioner with it could not be substantive evidence and at beat could be utilised to corroborate other evidence on the question in controversy. This contention seems to be untenable because if the report of the Commissioner and the material enclosed with it constituted legal evidence, and I have held above that it did, I do not see how it could not be used as a substantive piece of evidence to base the finding. The Authority had appointed the Commissioner to inspect the spot, to make an investigation and to submit a report and the Authority was entitled to accept the same and base its finding on such material.

8. Lastly, it is contended that even on the basis of the report and the material submitted along with it by the Commissioner, the finding on the question in controversy was based on no evidence because the report of the Commissioner itself was either based on no evidence or did not support the conclusion arrived at by the Authority. This contention appears to me to be sound.

9. While seized of the application under Section 19(1)(a) of the Act the question that the Authority was to consider was if, having regard to the various circumstances, permission should or should not be granted to the landlady to file proceedings for the eviction of the tenant. One of the questions to be decided was as to the status of the tenant and if, having regard to his financial position, he was likely to create a further slum if allowed to be evicted. The other question would be if the tenant had acquired an alternative accommodation in which case the Authority would have been relieved of the obligation to decide the question as to the means of the tenant. The Commissioner had been appointed to inspect the demised premises and the premises in Wazirpur with a view to report as to who was in occupation of these premises and the use to which the demised premises was being put. As has been pointed out above, the Commissioner reported that the demised premises was being used partly for storage of old truck tyres and partly for residence and that an employee of the tenant alone was residing in the demised premises. With regard to the other premises, it was reported that on the basis of enquiries in the locality, the Commissioner was told that the tenant was living there with his son. The report does not disclose the names or particulars of the persons from whom the enquiries were made. Their statements were also not recorded on account of their alleged unwillingness to come forward to make written statement. From this the Commissioner concluded that the tenant was residing in the Wazirpur premises. On the basis of this evidence, the Authority came to the conclusion that 'The respondent has parted with the possession of the disputed premises as alleged by the petitioner and has his own independent separate 'business premises and residential accommodation and thus in no way is entitled, to protection'. Having regard to the Emit of the scope of the proceedings before the Authority, the Authority was not concerned with the question if the tenant had parted with the possession of the demised premises or not. The report of the Commissioner does not in any manner support the conclusion that the tenant had independent residential accommodation even if it be assumed, as has been made out by the Commissioner, that the tenant was living with his son in the Wazirpur premises. It could still not be said that it was a premises where he was entitled to stay as of right. That being so, it was necessary for the Authority to determine if, having regard to the means of the tenant, he would create a further slum if evicted from the premises in dispute.

10. Lastly, it is urged that the Authority has not devoted any attention to a number of affidavits filed on behalf of the tenant after the report of the Commissioner which, by and large, supported the contention of the tenant that he had been residing and carrying on business in the demised premises and that the Wazirpur premises was under the tenancy of his son. This contention also appears to me to be sound because the Authority has confined its entire attention to the report of the Commissioner and has completely ignored a large number of affidavits referred to above which deserved consideration.

11. Mr. Chopra, who appears for the landlady, however, contends that even though the report of the Commissioner may suffer from a variety of infirmities I should not interfere in view of the rather limited jurisdiction of this Court under Article 227 of the Constitution of India.

12. It is true that the power of superintendence of this Court under Article 227 of the Constitution of India being extraordinary in nature, 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 on appeal. It is equally correct that the High Court would not in the guise of exercising such jurisdiction convert itself Into a Court of Appeal, and its functions would be limited to ensuring that the subordinate Court or Tribunal functioned within the limits of its authority. It however, appears to me that the impugned order in the present case ex facie suffers from fatal infirmities and could not be said to have been made in proper proceedings. The impugned order purports to be mainly based on the report of the Commissioner and yet the objections of the tenant to the validity of the said report were completely ignored. The impugned order is based on findings which were either relevant for the purpose of question in controversy before the Authority or were based on no evidence whatsoever. The finding that the tenant had independent accommodation for his residence could hardly be justified with reference to the report because the report makes out that the enquiries revealed that the tenant was residing there with his son. The report however, also makes out that the persons from whom enquiries were made, were not prepared to come forward to make written statements. Assuming that the tenant was residing with his son, it could still not be said that he had an independent place of residence of his own. The complete indifference shown by the Authority to a number of affidavits filed on behalf of the tenant assume considerable significance in this context. It is, thereforee, not a case in which this Court is re-assessing the evidence or correcting a mere error of fact but is a case in which there has neither been any proper proceedings under the Act nor is the conclusion arrived at based on any material in such a case, this Court would not only have the power but even the duty to strike down such an order.

13. In the result, the petition succeeds. The impugned order is quashed and the proceedings are remanded to the Authority for determination according to law after deciding the objections to the report of the Commissioner and after giving an opportunity to the parties to either examine the Commissioner or to produce such other evidence with regard to the question in controversy as the parties may be entitled to produce.

14. In the peculiar circumstances, there would be no order as to costs.

15. Petition allowed.


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