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Nanak Chand Vs. Mahabir Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.M. (Main) No. 65 of 1972
Judge
Reported inAIR1973Delhi81
ActsSlum Areas (Improvement and Clearance ) Act, 1956 - Sections 19, 19(1) and (2); Slum Areas (Improvement and Clearance ) Rules, 1956 - Rule 7
AppellantNanak Chand
RespondentMahabir Singh and ors.
Advocates: Amarjit Singh, Adv
Excerpt:
.....to what were means of tenant - order of remand given in respect to finding out true means of tenant by competent authority justified. -..........eviction proceedings against the petitioner the application so filed was dismissed by the competent authority. in appeal it was urged that opportunity and not been given to the landlord to file affidavits in rebuttal of those filed by the tenant. it was urged that it stood established from the record that on the date of the application filed under section 19 of the act i.e., on 15th september, 197-0, the present petitioner's son virender kumar was living with him and his income was available to the tenant for finding alternative accommodation. it was emphasised that the competent authority had acted illegally in not considering virender kumar's income as the part of the income of his father who was the tenant for determining whether he had the means or not to find alternative.....
Judgment:

1. Preferred under Article 227 of the Constitution of India the petition assails the scope of order of remand made by the Financial Commissioner on 7th January, 1972, while disposing of Appeal No. 437 of 1971, which had been filed under Section 20 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter called 'the Act'). The circumstances which may be noticed are that Maya Das respondent No. 3 filed an application under Section 19 of the Act for permission to institute eviction proceedings against the petitioner The application so filed was dismissed by the competent authority. In appeal it was urged that opportunity and not been given to the landlord to file affidavits in rebuttal of those filed by the tenant. It was urged that it stood established from the record that on the date of the application filed under Section 19 of the Act i.e., on 15th September, 197-0, the present petitioner's son Virender Kumar was living with him and his income was available to the tenant for finding alternative accommodation. It was emphasised that the competent authority had acted illegally in not considering Virender Kumar's income as the part of the income of his father who was the tenant for determining whether he had the means or not to find alternative accommodation. It was submitted that the alleged shifting of Virender Kumar from the concerned premises on 1st August, 1971, was an event which took place after the filing of the application under Section 19 of the Act and as such could not be taken into consideration. The Financial Commissioner noticed the avernments in the he affidavits filed by the parties and came to the conclusion that Virender Kumar had been receiving a gross salary of Rs. 910/- per month including Rs. 60/- as conveyance allowance. In those circumstances the impugned order was passed to the effect that the competent authority may on remand determine as to what were the means of the tenant as on the date of the presentation of the application under Section 19 of the Act of for finding alternative accommodation.

2. In my view the direction contained in the impugned order ignores the intendment in the impugned order ignores the intendment in Section 19940 of the Act. The provision is:--

'19. (4) 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 of 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.'

The factors enumerated in the aforequoted provision are to be taken into consideration when refusing or granting the permission. The competent authority will, thereforee, determine the means of the tenant for finding alternative accommodation as on the date on which permission is to be granted for instituting the eviction proceedings against him.

3. Mr. Amarjit Singh, appearing for the petitioner, places reliance on the following observation made by Rangarajan, J., in his judgment dated the 21st of September, 1971, by which Civil Miscellaneous (Main) 124 of 1971 was disposed of :--

'In any case the state of affairs and the means of the tenant at the time of granting the permission, not when the application for permission was made would be relevant unless of course any such change can be attributed to the deliberate act on the part of the tenant.'

The view is correct that the material date would be that on which permission is to be granted.

4. A statute is not to be interpreted and applied against its intendment furnished by its plain meaning. Where a tenant causes a deliberate change, its nature and effect will have to be determined. Where it is unreal and manipulated the competent authority may proceed to find the true circumstances and conclude that in spite or an outward change the tenant had the means to find alternative accommodation.

The Financial Commissioner, while making the order of remand, was impressed by the contention that a tenant may in order to defeat an application under Section 19(1)(a) of the Act arrange the disappearance from the premises in his tenancy of the earning members of a joint Hindu family.

It would be for the competent authority to determine as to whether any unscrupulous tenant has indulged in any actions in order to deceptively minimise the means at his disposal to find alternative accommodation. In each case, a finding will be arrived at as to whether the tenant had or not the means to find alternative accommodation but the determination will relate to the means of such a tenant as on the date when the permission is to be granted by the competent authority.

5. Finding that in most of the cases the competent authority passes the order under Section 19 of the act after considering the affidavits and counter-affidavits filed by the parties, I am of the view that attention should be paid to Rule 7 contained in Slum Areas (Improvement and Clearance) Rules, 1957, which is:--

'7. The following procedure shall be adopted in dealing with application made under Section 19(2) of the Act--

(1) Every application for permission under Section 19 shall be made in Form G.

(2) There shall be paid a fee Rs. 10/- in respect of every application referred to in sub-rule (1).

(3) Every such application shall be accompanied by a copy of the decree or order and judgment (if any).

(4) On receipt of such application, the competent authority shall cause a notice fixing a date of hearing to be issued to the tenant giving him an opportunity of making his objections to such application. On such date, (or such other date to which......) the authority shall hear the parties and their witnesses (if any) and make such enquiry into the circumstances of the cases as it thinks fit.

(5) If either the parties is absent on any date of hearing, the competent authority may proceed in his absence and after hearing the party present pass such order as it thinks fit.'

Whether an application is preferred under Section 19(1)(a) or (b) of the Act it is an application within sub-section (2) thereforee and Rule 7 is attracted. The rule provides that the competent authority while dealing with the application shall hear the parties and their witnesses, if any, and may make such inquiry into the circumstances of the case as it thinks fit.

Where the contention of a landlord is that after the filing of the application under Section 19 of the Act a tenant has unscrupulously and deceptively manipulated circumstances so as to minimise his means available for finding alternative accommodation, he may adduce evidence in that respect by examining witnesses and tendering documents. The competent authority will then find as to what were the true means of the tenant to find alternative accommodation.

In all events the material date for determining the means of the tenant would be the date on which the competent authority would be passing the order for granting the permission.

6. The second part of the order of remand is that the landlord should be given opportunity to file counter affidavits to those filed by the petitioner (tenant). That part of the impugned order will stand. The petition is accepted to the extent indicated above. The competent authority will deal with the controversy on remand on the basis of the observations made in this order.

7. The petitions is disposed of without there being any order as to costs.

8. Order accordingly.


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