Skip to content


Ali Hasan Vs. M.S. Shami and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 109 of 1967
Judge
Reported in3(1967)DLT681
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19
AppellantAli Hasan
RespondentM.S. Shami and anr.
Advocates: M. Ahmed,; B.C. Misra and; G.N. Aggarwal, Advs
Cases ReferredNagendra Nath Borra v. Commissioner of Hills Division and Appeals Assam
Excerpt:
.....into consideration those affidavits which were in the nature of ob]'ecti')ns to the reports of the head clerk of the competent authority. under these circumstances, before the petitioner can put forward the contention that the competent authority failed to consider these affidavits, it must be established that those affidavatis were filed. for one thing, the competent authority states that there are six machines in th3 petitioner's shop and a tailor having six machines in his shop in the main bazar cannto be considered a poor man. further, the reports of the head clerk clearly stated that the father of the petitioner and a brtoher of the patitioner were having their machines and were working on the foto-path in front of antoher shop, viz .shop no. it is nto a subjective satisfaction of..........nto ba ascertained and ]usticrt could nto be done. on this, the competent autority deputed his head clerk to inspect the shop of the petitioner, the head clerk .inspected the shop and made a report on 23ch may, 1936. according to this report, there were three pedestal sewing machines in the shop of the petitioner and they were worked by four persons, viz., the petitioner herein, two of his sons and antoher person byname aziz.the report further stated that th3 father of the petitioner and a brtoher of the petitioner were having their two machines and were working on the fotopath in front of antoher shop near the shop of the petitioner herein. the report also stated that according ttohe ration card of the petitioner, there were 19 members in the family. after this report, the second.....
Judgment:

M.M. Ismail, J.

(1) The petitioner herein is a tenant of one room along with kitchen, latrine and small courtyard at the first floor of House No. 5195, situate at Sadar Thana Road, Ward No. Xiv, Delhi, of which the second respondent herein is the landlady. The second respondent filed an application before the Competent Authority, under section 19 of the Slum Area (Improvement & Clearance) Act, 1956, for permission to institute a suit or toher proceedings for obtaining a decree or order for the eviction of the petitioner from the premises in question. In that application, the second respondent put forward two grounds for obtaining an order of eviction against the petitioner, viz., non-payment of rent and the bona fids requirement for the occupation of the landlady. In that application, the second respondent further stated:

'THATthe tenant is a man of status and means and can have alternative accommodation in case an order for eviction is passed against the tenant.'

On 27th October, 1965, the petitioner herein filed a reply to the application of the second respondent putting forward the contention that the application of the second respondent should be dismissed. In that reply, he stated that he was a tailor, his wages amounted to Rs.6.00 per day, his family consisted of 16 members, himself, his wife, seven daughters, three sons, -father and two minor brtohers ; one of his sons was married and his wife was also living with him : he cannto provide any alternative accommodation ; his large family would be thrown on the roadside if he is ordered to be evicted. In this application, the second respondent filed an affidavit with reference to means of the petitioner. In that affidavit, the second respondent stated that the petirioner had gto 3 machines worked by feet and one machine worked by hand, which were all operated by his employees ; that income from one machine came to about Rs. 15.00 per day and as such the daily income of the petitioner herein came to about Rs. 60.00 per day, while expenses per day came to about Rs. 20.00 and after adjusting the expenses the monthly inrome of the petitioner herein was Rs. 1,200.00 that the petitioner borein is a man of means and status and can easily acquire alternative accommodation in case he is evicted from the premises in dispute. The petitioner himself filed an affidavit with regard to his means. He reiterated in the said affidavit that he was a tailor by profession and worked himself and had nto employed any karigars and his daily wages did nto amount to more than Rs. 6.00; his family consisted of about 16 members, all of whom depended on the manual labour of the petitioner and the family was half-starving ; the petitioner did nto have any toher residential accommodation excepting the tenancy premises which comprised of a single room. The petitioner farther stated in that affidavit that he was doing his work of tailoring in a petty shop and he had only two machines which were worked by feet and he' had nto employed any karigars and be woiked himself and his son Mohammed Qasim who was a student came to assist him when ha was free from his studies. The petitioner reiterated that his wages amounted to Rs. 6.00 per day and denied that he was a man of status or means and contended that it was nto possible for him to acquire any alternative accommodation in Delhi. One Munaware Khan also filed an affidavit corroboratingthe avermants of the petitioner in his affidavit with refarence to his means and occupation.

(2) While the proceeding', were pending, the case was posted for arguments on 30th May, 1903.the second respondent on i9th May, 1966 filed an application requesting the Competent Authority to depute some good person who should all of a sudden visit the shop of the petitioner herein as well as his residential accommodation for reporting about the true facts. In support of this application, the second respondent stated that the petitioner had lour machines and all the four machines were worked by the employees of the petitoner and that unless somebody is deputed to inspect the shop of the petitioner and his residential accommodation, the true facts could nto ba ascertained and ]usticrt could nto be done. On this, the Competent Autority deputed his Head Clerk to inspect the shop of the petitioner, The Head Clerk .inspected the shop and made a report on 23ch May, 1936. According to this report, there were three pedestal sewing machines in the shop of the petitioner and they were worked by four persons, viz., the petitioner herein, two of his sons and antoher person byname Aziz.the report further stated that th3 father of the petitioner and a brtoher of the petitioner were having their two machines and were working on the fotopath in front of antoher shop near the shop of the petitioner herein. The report also stated that according ttohe ration card of the petitioner, there were 19 members in the family. After this report, the second respondent herein, on 3rd August, 1966, filed antohr application for antoher inspection. The Competent Autholity again directed his Head Clerk to make antoher inspection. The Head Clerk made the inspection and submitted a report dated 27th August, 1966 According to this report, there were four sewing machines (three pedestal and one hand machinel in the shop of the petitioner and at the timea of the inspection, the petitioner was working on one pedestal macl the and Aziz was working on antoher pedestal machine and a person who was also working a third pedestal machine left the premises soon after the arrival of the Head Clerk, without disclosing his name or parentage, under the direction of the petitioner. This report again brought out the fact that the father and a brtoher of the petitioner were working on the pavement as reported by him on the previous occasion. On 27th October, 1965 the Competent Authority pastedthe order granting the permission ap. plied for by the second respondent. The Competent Authority referred to the affidavits filed by the parties and the two reports of inspection of his Head Clerk and came to the conclusion that the version of the petitioner herein that he worked single handed was incorrect and the deposition of the second respondent herein that the petitioner herein had gto four machines was true. He further observed : Apart from those four machines, two machines are operated by hi:; father and brtoher in front of the payment of the shop. It means that there are six machines in the respondent's shop. A tailor having six machines in his shop in the main Bazar cannto be considered a poor man. These machines are operated by his family members. According to the report of the Head Clerk, there was only one man named Aziz at the respondent's shop. Who does nto appear to be the member of the respondent's family. The monthly income of a tailor having six machines in his shop and operated by his own family members may be between Rs. 800.00 or Rs. 1,000.00. The Respondent 1s, thereforee, considered a man of good means to arrange alternative accommodatio like the present one. The permission applied for by the petitioner is, thereforee, hereby granted.' It is to quash this order of that Competeni Authority the present writ petition has been filed under Articles 226 and 227 of the Constitution of India. Shri M. Ahmad, the learned counsel for the petitioner, put forward two contentions in support of the prayer for the issue of a writ quashing the order in question. His first contention is that, when the Competent Authority, on the applications of the second respondent directed his Head Clerk to make a local inspection of the shop of the petitioner herein and submit a report, the petitioner herein was nto given ntoice of the applications of the second respondent. After the Head Clerk inspected the shop and submitted the two reports, the petitioner filed two affidavits, one by the petitioner himself and the toher by Aziz who was found to be in the shop by the Head Clerk. These affidavits were submitted to the Competent Authority on 30th September, 1966, but the Competent Authority returned these affidavits to the petitioner on 18th October, 1960, slating that he would nto keep them on the file. The further case of the petitioner is that the counsel for the petitioner, on 19th October, 1966, presented these two affidavits along with an application and the Competent Authority received the application and the affidavits and wrtoe on it that it would be considered on 27th October 1966. Based on these allegations, the case of the petitioner is that the Competent Authority failed to take into consideration those affidavits which were in the nature of ob]'ecti')ns to the reports of the Head Clerk of the Competent Authority. In paragraph 13 of the petition, the petitioner states that he gto the file inspected by his counsel en 19th December, 1966 and the inspection revealed that the application of the petitioner dated lath October, 1966 and the two affidavits submitted with it were nto on the file. The second respondent in her reply in this writ petition denies that the petitioner ever filed the two affidavits. Under these circumstances, before the petitioner can put forward the contention that the Competent Authority failed to consider these affidavits, it must be established that those affidavatis were filed. The petitioner has alleged that he has filed the affidavits while the same has been denied by the second respondent. Ad Admittedly, the files do nto contain either the affidavits or the petition said to havs been filed along with the said affidavits. thereforee, whether the petitioner filed any affidavits at all is in dispute. It is nto possible for me in these proceedings under Articles 226 and 227 of the Constitution to go into that disputed question of fact. In view of this, I refect the first contention of the learned counsel for the petitioner.

(3) As far as the second contention is concerned, I must point out that the final order of the Competent Authority proceeds on a number of mis apprhensions and misreading of the reports of the Head Clerk on which his conclu?ion rested. For one thing, the Competent Authority states that there are six machines in th3 petitioner's shop and a tailor having six machines in his shop in the main bazar cannto be considered a poor man. Thre was absolutely no evidence to show that there were six machines in the petitioner's shop. buth the reports of the Head Clerk showed that the father of the petitioner and a brtoher of the petitioner were working on the foto-path in front of antoher shop in the neighbour-hood of the petitioner's shop and the reports made it appear that those machines were their machines. thereforee, for the Competent Authority to come to the conclusion that the petitioner was having six machines in his shop and was working them is nto warranted by the reports of the Head Clerk. Further, the reports of the Head Clerk clearly stated that the father of the petitioner and a brtoher of the patitioner were having their machines and were working on the foto-path in front of antoher shop, viz .shop No. 5202, while the shop of the petitioner herein had the No. 5192; on the toher hand, the Competent Authority proceeded on the basis that the father and the brtoher were operating the two machines in front of the pavement of the petitioner's shop. One toher mistake that has to be pointed out in this regard is that that Competent Authority stated that according to the report of the Head Clerk, there was only one man named Aziz in the petitioner's shop, who did nto appear to be the member of the petitioner's family. On the toher hand, as pointed out by me already, on the second occasion when the Head Clerk inspected the shop when alone he found four machines, there was antoher man who was said to be working on a pedestal machine in addit ion to Aziz and that man went away after seeing the Head Clerk without disclosing his name or parentage under instructions from the petitioner herein. Thus, the Competent Authority drew t inference that the petitioner was a man of means who could acquire antoher accommodation, from the following facts:-

(I)The petitioner had six machines in his shop. (ii) The six machines were operated by his family members. (ii) The monthly income of a tailor having six machines in his shop and operated by his own family members may be between Rs. 800.00 and Rs. 1000.00.

The conclusion of the Competent Authority is based upon these three considerations which are nto only nto supported by the evidence but also is contrary to the same. In view of this fact, in my opinion, the finding of the Competent Authority that the petitioner is a man of means capable of arranging for an alternative accommodation is nto supported by any evidence with reference to the considerations on the basis of which alone the Competent Authority arived at the said finding.

(4) Shri B. C. Misra, the learned counsel for the 2nd respondent contended that the Competent Authority was nto required to give a finding or give reasons whan he was granting the per mission applied for by the landlady and only when he was refusing the permission applied for by the landlady, he should give reasons since his order of refusal is subject to anappeal. The contention of Shri Misra is that under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1958, all that the Competent Authority is required to do is either to grant permission asked for by the landlord or to refuse it. a.id in g'anting or refusing to grant the permission, the Competent Authority is required to take into account certain factors and because of this, it cannto be said that the Competent Authority is called upon statutorily to give any finding with regard to those factors. In order to appreciate this contention of Shri Misra, it is necessary to refer to Section 13 of the Act and that Section is as follows'-

'19.Proceedings for eviction of tenants nto to be taken without permission of the Competent Authority; (1) Ntohwithstanding anything contained in any toher law for the time being in force, no person shall, except with the previous permission in writing of the competent authority: (a) institute, after the commencement of the Slum Areas (Improvement and Clearanca) Amendment Act, 19'64, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or (b) where any decree or order is obtained in any suit or proceeding instituted before such .commencement for that eviction of atenant from any building or land in such area, execute such decree or order. (2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competant authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (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 if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum areas; (e) such toher factors, if any, as may be prescribed. (5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.'

(5) No doubt it is true that the final order which the Competent Authority passes must be one granting or refusing to grant the permission asked for by the landlord. The toher factor that has to be ntoed is that under section 19(4), the statute compels the Competent Authority to take into account certain factors, one such factor being whether an alternative accommodation within the means of the tenant would be available to him if he were evicted. It cannto be denied that the function of the Competent Authority' under section 19 is a quasi Judicial function. thereforee, even if the statute does nto require him to state the reasons for his conclusion, by the very nature of his function, he will have tr> state the reasons for his conclusion even if he grants the permission applied for by the landlord. It is nto a subjective satisfaction of the Competent Authority that is contemplated by the Act and that very requirement that the Competent Authority must take into account certain factors clearly postulates that the Competent Authority will have to consider the case objectively before deciding either to grant or to refuse to grant the permission applied for by the landlord. ' thereforee if the Competent Authority comes to any conclusion with reference to the factors which he is called upon to take into account and that conclusion or finding is nto supported by any evidence on record or is contrary to the evidence available on record, the order of the Competent Authority cannto stand./ShriMisra drew my attention to the decision of I.D. Dua, Acting C.J. (as he then was), in Surjit Singh v. Baij Nath. In that case, the argument advanced against an order of the Competent Authority was based on the contention that it was incumbent on the Competent Authority to call upon the parties to adduce evidence and failure to do so had resulted in grave prejudice to the petitioner therein. Antoher argument that was advanced was that the affidavits relied on by the Competent Authority was nto in accordance with the law inasm uch as the declaration appended thereto was defective nto being in accordance with Order Xix Rule 3, Code of Civil Procedure. In dealing with the arguments advanced before him, the learned Acting Chief Justice of served as follows :-

'AFTERconsidering the arguments addressed at the bar and the facts of the case, in my opinion, there is no adequate ground for interfering with the impugned order under Article 227 of the Constitution. The landlord having secured an order for the eviction of the tenant from a Competent Authority under the Delhi Rent Control legislation. I do nto think the policy of the Slum Act creates any further vested right in the tenant for the prtoection of which he may seek to contest the landlord's claim to evict him in proceedings in a manner comparable to a regular trial of a civil suit as is advocated by Shri R.L. Aggarwal. I am nto unmindful of the fact that the function discharged by the Competent Authority is of a quasi-Judicial nature but that is far from saying that this function has to be discharged by means of a procedure known to the ordinary courts of law, when trying suits under the Code of Civil Procedure. That a tenant is nto considered to be very much of an aggrieved party when the Competent Authority grants permission to execute 'a decree for eviction and that he has nto been cltohed with a vested right which he is entitled to defend in exactly the same manner and to the same extent as the decree-holder, seems to be obvious from the fact that he has nto been given right of appeal under the statute. The function which the Competent Authority is enjoined to perform is related to a public purpose intended to improve and clear the slum area and to see that the slum area is nto extended, ft is nto meant primarily to prtoect any personal legal right of the tenant.'

I am unable to see how this decision helps the second Respondent 1n this case. It should nto be forgtoten that in that case, the landlord had obtained an order of eviction and was seeking the permission of the Competent Authority to execute that order and that fact was specifically referred to and taken ntoe of by the learned Chief Justice while making the said observations. Apart from that, that judgment does nto say or decide that a tenant cannto come to a Court complaining against an order of the Competent Authority granting permission to the landlord to institute proceedings for eviction of the tenant and the Court cannto quash the order in case the tenant makes out sufficient grounds for the Court to interfere, in exercise of its jurisdiction under Article 226 and 227 of the Constitution.

(6) Shri Misra further relied upon the decisions of the Supreme Court in Syed Yakoob v. K.S. Radhakrlshnan, and in Nagendra Nath Borra v. Commissioner of Hills Division and Appeals Assam, and contended that an error of fact however grave it may be will nto give jurisdiction to the High Court to interfere with or to quash an order of a Tribunal under Articles 226 and 227 of the Constitution. In this case, it is nto a question of error of fact that is urged as a ground for interiference. Equallv, decision after decision has held that when the finding of a Tribunal is nto supported by any evidence, the order of the Tribunal is liable to be quashed. The ground urged in this case is nto that the I finding of the Competent Authority is erroneous but that the finding, is nto supported by any evidence.. I have already referred to the considerations which prevailed with the Competent Authority for his final con- clusion and how those considerations are nto supported by any evidence on record. Under these circumstances, I am of the opinion that the order of the Competent Authority in this case is liable to be quashed and is accordingly quashed by the issue of a writ of certiorari and this petition is allowed. However, I do nto make any order as to costs in this petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //