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Mandir Dass JaIn Vs. P.R. Varshneya and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Misc. (Main) No. 168 of 1971
Judge
Reported inAIR1973Delhi71; 8(1972)DLT303
ActsSlum Areas (Improvement and Clearance) Act, 1956 - Sections 19; Evidence Act, 1872 - Sections 106
AppellantMandir Dass Jain
RespondentP.R. Varshneya and anr.
Appellant Advocate M.L. Mehra, Adv
Respondent Advocate Yogeshwar Dayal, Adv.
Excerpt:
.....19 of slum areas (improvement and clearance) act, 1956 and section 106 of evidence act, 1872 - competent authority granted permission to respondent-landlord to institute eviction proceedings against petitioner-tenant - petition to quash such order - on basis of facts and circumstances of case tenant could very easily secure alternative accommodation within his means - petition dismissed. - - he pleaded in his written statement that he is a very poor man and has been doing a very small business of selling curd and lassi in the aforesaid shop, that he has not engaged any assistant or servant in his shop, that he has not been maintaining any account book or stock register, that his income form the said business has been only about rs. 2.66 per item per day, that even if it is true..........227 of the constitution of india, praying that the order, dated 15th september, 1971, of the competent authority under the slum areas (improvement and clearance) act 1956 (respondent no. 1) granting permission to the landlord phool chand jain, respondent no.2, to institute eviction proceedings against the petitioner (tenant), be quashed.2. phool chand jain filed an application under section 19 of the slum areas (improvement and clearance) act (hereinafter referred to as the slum areas act) seeking permission to institute eviction proceedings against his tenant mandir dass jain (petitioner herein), in respect of a room in premises no. 2593, situated at peepal wali gali, dharampura, delhi, on the grounds of non-payment of rent from 4th november, 1970, personal bona fide requirement.....
Judgment:
ORDER

1. This petition has been filed by a tenant, Mandir Dass Jain, under Article 227 of the Constitution of India, praying that the order, dated 15th September, 1971, of the Competent Authority under the Slum Areas (Improvement and Clearance) Act 1956 (respondent No. 1) granting permission to the landlord Phool Chand Jain, respondent No.2, to institute eviction proceedings against the petitioner (tenant), be quashed.

2. Phool Chand Jain filed an application under Section 19 of the Slum Areas (Improvement and Clearance) Act (hereinafter referred to as the Slum Areas Act) seeking permission to institute eviction proceedings against his tenant Mandir Dass Jain (petitioner herein), in respect of a room in premises No. 2593, situated at Peepal Wali Gali, Dharampura, Delhi, on the grounds of non-payment of rent from 4th November, 1970, personal bona fide requirement for occupation as residence and misuse of the premises. It appears that the room in question has one kotha inside and a Chabutra in front of it on the ground floor of the aforesaid premises. He also alleged that the tenant has been carrying on his business in Shop No. 3019, Mehar Mandir, Masjid Khajoor, Delhi, that he is a man of means earning more than Rs. 2,000/- per month, and that he would not create any slum in case of eviction.

3. The tenant contested the application. He admitted the relationship of landlord and tenant between the parties, but denied the grounds mentioned by the landlord for eviction. He pleaded in his written statement that he is a very poor man and has been doing a very small business of selling curd and lassi in the aforesaid shop, that he has not engaged any assistant or servant in his shop, that he has not been maintaining any account book or stock register, that his income form the said business has been only about Rs. 250/- per month, that he has no other source of income and that he will create a slum if evicted.

4. The landlord filed a replication reiterating the allegations in his application, and further alleging that the tenant has four sons, who were all grown up and carrying on business along with the father, that one of his sons is employed in the Delhi Municipal Corporation and posted at Octroi Post, and that the said son has been earning more than Rs. 500/- per month.

5. In this order, dated 15th September, 1971, the Competent Authority observed that the ground of non-payment of rent was not available to the landlord as the arrears of rent had been paid, and that the grounds of bona fide requirement for residence and misuse of the premises are to be urged before the Controller and are not relevant in the application under Section 19 of the Slum Areas Act. As regards the question whether alternative accommodation within the means of the tenant would be available to him if he were evicted, the competent Authority held that the tenant's eldest son Jinender Kumar, who is employed in the Delhi Municipal Corporation, has been living separately from his father for the last about five years, and that as such the son's income cannot be taken into account for purposes of determining the means of the tenant, Mandir Dass Jain. The Competent Authority then considered the evidence as regards the income of the tenant himself, and pointed out that he was admittedly dealing in three items, namely, Lassi, Kacha butter of lassi, and curd, that his version that he has been earning only Rs. 250/- form all the three items is not believable as that would mean that he has been getting only Rs. 2.66 per item per day, that even if it is true that he has not been maintaining account books in respect of his business, he could have produced evidence regarding the quantity of milk purchased by him pr day on an average for preparing the three items mentioned above by filing the affidavits of the milk suppliers who supplied milk to him, but he has failed to do so, and that the tenant has thus failed to discharge the onus placed upon him to show that he is not possessed of sufficient means to acquire an alternative accommodation. The Competent Authority then observed that the shop in question is situated in a thickly populated area, that his income form each item of business can very modestly be placed at Rs. 10/- per day, that his income would thus be about Rs 30/- per day or Rs. 900/- per month, that according to the tenant's own admission made in paragraph 10 of his affidavit, he can get alternative accommodation for a sum of not less than Rs. 110/- per month, and that with the income mentioned above he can very easily secure alternative accommodation within his means without, creating any further slum if evicted. In the result the competent Authority granted the premission prayed for the present landlord. It is against the said order that the present petition under Article 227 of the Constitution of India has been filed by the tenant.

6. Shri M. L. Mehar, learned counsel for the petitioner tenant, contended that the Competent Authority placed the burden wrongly on the tenant and that it is for the landlord, who file the application under Section 19 of the Slum Areas Act, to establish positively that the tenant has sufficient means for securing alternative accommodation and the would not create a slum if evicted. The said contention is not tenable. Section 19(4) of the slum Areas Act provides that in granting or refusing to grant the premission under sub-section (3) of the said section the Competent Authority shall take into account inter alia, the factor, viz whether alternative accommodation within the means alternative of the tenant would be available to him if he were evicted. It is because of this provision that the Competent Authority has to inquire to the question of the means of the tenant It is turn that the landlord who filed the application has to allege in this application under Section 19 that the tenant against whom he seeks to institute proceeding for eviction is one to whom alternative accommodation within his means would be available to him if he were evicted. But barring perhaps in few cases a landlord would not be in position to know the exact income of the tenant. However since he is the person who comes to the Court with a the application for a permission under Section 19 for the institution of eviction proceedings against the tenant he has to allege what according to his knowledge or information is the income of the tenant and adduce such evidence as is possible for him to place before the Competent Authority. The burden then shift to the tenant and it is for him to adduce positive and a satisfactory evidence regarding his income which is especially within his knowledge. I am fortified in this view by the judgment of S. M. Shankar, J., in Manohar Lal Bhatia V. Naunit Ram Bhatia, Civil Misc. (Main) No.58 of 1970 pronounced on 27-1-1971 (Delhi) in which the learned judge observed that the burden to prove that status in proceedings under Section 19 of the Slum Areas Act essentially lies on the tenant and if he fails to discharge this onus there is hardly any case for interference under Article 227 of the Constitution.'

7. In the case present case in landlord Phool Chand Jain alleged in his application under Section 19 that the tenant is a man of means earning more than Rs.2,000/- per month. He filed an affidavit (Annexure C) of Shri Mahabir Pershad Jain Who averred that the has been residing along with this brother Shri Krishan Jain in a portion of the suit property and that the brother is a tenant in respect of the said premises. He further averred that the tenant Mandir Dass Jain in carrying on a very flourishing business and sell ghee kacha milk, lassi, i.e., Chhach and curd in large quantity at shop No.3019, Mehar Mandir Masjid Khajoor Delhi and that the income of Mandir Dass Jain from the said business is more that Rs.2.000/- per month. The landlord also filed the affidavit (Annexure D) of Shri Lachman Dass Jain who is tenant of a potion in the house adjacent to the suit premises the affidavit (Annexure F) of Shri Jaipal Jain who is also tenant of portion of the house in front of the suit premises and an affidavit (Annexure F) of Shri Shri Krishna Jain who is tenant in respect of a portion in the building of Phool Chand Jain himself. In the these three affidavit also it was averred that the income of Mandir Dass Jain for his business is more than Rs. 2,000/- per month.

8. As against the said evidence adduced by the landlord the tenant Mandir Dass Jain filed his own affidavit (Annexure B) the affidavit (Annexure G) of his wife, the affidavit (Annexure H) of his son Jinender Kumar the affidavit (Annexure I) of Shri Ram Kishan who resides in a house nearby the affidavit (Annexure J) of Shri Jagdish Prasad who is also residing in a house nearby the affidavit (Annexure K) of Shri Sushil Kumar who is tenant in respect of a shop nearby and the affidavit (Annexure L) of Shri Raghbar Dayal who is also a tenant of a shop nearby. In all these affidavit is averred by the deposits merely that income of Shri Mandir Dass Jain from his bunnies is about Rs.250/- per month and that his family members consisting of himself three sons and two daughters besides his wife depend upon the said income. Apart from the said bare averments in the affidavit the tenant did not adduce any other evidence to show what exactly has been his income for the business carried on by him. As pointed out by the competent Authority the quantity of milk purchased by him per day on an average is a fact within his special knowledge and if the same has been alleged and proved it would have given a satisfactory idea to the court as regard his income from the business but no averment regarding the same has been made in any of the tenant. As observed by the Competent Authority, the tenant could have filed the affidavits of persons who supplied competent Authority noticed the affidavits filed on behalf of the landlord and the tenant and held that the tenant filed to discharge the one placed upon him. I am unable to find any infirmity in the said conclusion of the Competent Authority,. In the absence of satisfactory evidence on behalf the tenant the only course open to the Competent Authority was to estimate in such a manner as he could on the facts and circumstance of the case. He held that the income of the tenant from each item of the business could very modestly be placed at Rs.10/- i.e., Rs.30/- per day or Rs.900/- per month. The tenant himself stated in paragraph 10 of his affidavit (Annexure B) that the total areas of the disputed room is about 215 square feet and an equal area in a non-slum area would not be available to him at a rent not less then Rs.110/- per month. In the of his finding regarding the income and the aforesaid averment of the tenant the competent Authority held that the tenant could very easily secure alternative accommodation within his means without carting any further slum if evicted. The said conclusion of the Competent Authority cannot be regarded as one which calls for interference under Article 277 of the Constitution.

9. For the foregoing reason the petition C.M. (Main) No. 168 of 1971 is dismissed, but in the circumstances without costs.

10. Petition dismissed.


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