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Ram Nath Vs. R.K. Baweja Judicial Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1168 of 1967
Judge
Reported inILR1968Delhi328
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 30
AppellantRam Nath
RespondentR.K. Baweja Judicial Secretary and ors.
Advocates: D.K. Aggarwal and; Y. Dayal, Advs
Excerpt:
slum areas (improvement & clearance) act ((956), section 30-construction of-words 'ntoice, order or direction' are of widest amplitude review of-right of-nto given to the competent authority in respect of order passed by its delegate--writ powers, when nto be exercised. ; (repelling the argument of the petitioner that the words 'ntoice, order or direction' used in this section refer to the functions and powers which are conferred upon the competent authority by various sections of the slum areas act, and that, it is only against such ntoices, orders or directions that an appeal under section 30 of the said slum act is contemplated) that the words used in section 30 are obviously of the widest amplitude and would appear to contemplate appeals from any ntoice, order or direction of the..........by which any person may be aggrieved. the argument of the petitioner, however, is that the words 'ntoice, order or direction' used in this section refer to the functions and powers which are conferred upon the competent authority by the various sections of the said slum act which use these expressions and it is only against such ntoices) orders or directions that an appeal under section 30 of the said slum act is contemplated and that if widest amplitude is given to section 30, there would be no meaning to those provisions of the said slum act which have conferred specific rights of appeal against specific orders. by way of illustration, reference is first made to section 20 of the act which, in so far as words used in it are concerned, confers a right of appeal against an order.....
Judgment:

S.N. Andley, J.

(1) The petitioner, by this Writ Petition, seeks to quash the order dated 21/3/1967 of the Judicial Secretary, Delhi Administration, Delhi passed in case No. 6/97 whereby the order dated December 19, 1966 of the Competent Authority was set aside as being illegal.

(2) The facts which will resolve the controversy in this case lie in a narrow compass. By some date in 1959, respondents Nos. 2 to 6 had become owners of the property bearing Municipal No. 770 situate in Nai Sarak, Delhi, the first, second and third floors of which were in the occupation of the petitioner as a tenant. On 30/9/1961, respondents Nos. 2 to 6 filed an application No. 227 of 1962, for eviction of the petitioner on the ground of sub-letting. Upon an application made under section 15 of the Delhi Rent Control Act, 1958, the Rent Controller directed the petitioner to deposit the arrears of rent in Court. Arrears of Rent were nto deposited and, it is nto disputed,that arrears of rent right from the year 1959 have nto so far been paid by the petitioner to respondents Nos. 2 to 6. The application for eviction was allowed by the Rent Controller by his order dated 28/11/1968. On account of the applicability of the Slum Areas (Improvement and Clearance) Act, 1956. respondents Nos. 2 to 6 tiled an application on 10/1/1964 before the Competent Authority appointed under the said Slum Act under section 19 for permission to execute the order for eviction. This application was dealt with by Mr. M.S. Shami who had been delegated power by the Competent Authority appointed under the Act to exercise all powers which are exercisable by the Competent Authority under section 19 of the said Slum Act. The permission sought for was granted by Mr. M. S. Shami by his order dated 4/8/1966. Thereupon, the petitioner filed an application on 24/10/1966 before the Commissioner, Municipal Corporation, who was the Competent Authority appointed under the said Slum Act but who had delegated his functions exercisable under section 19 of the Act to the aforesaid Mr. Shami. The prayer in that application was 'to reconsider, review and rectify the order dated 4/8/1966 passed by Mr. Shami, Assistant Commissioner (Slum), under your Supreme power of supervision and Control'. I may here mention that the powers of the Competent Authorily has been delegated by a ntoification dated 13/5/1965. The terms of delegation were that the powers conferred on the Competent Authority by the said Slum Act mentioned in the first column of the schedule given under the ntoification were subject to the supervision and control of the Competent Authority. Presumably, in purported exercise of this power of supervision and control, the Competent. Authority passed an order dated December 19, 1966, whereby he observed:

'INview of these facts. I am convinced that this is a fit case justifying action on the part of Commissioner as the the Controlling and Supervising Authority.

Itherefore , direct the Assistant Commissioner (Slum) to review the case. He may inspect the site himself and make full enquiry into the status and means of the petitioner. .......'

(3) Being aggrieved by this order, respondents Nos. 2 to 6 filed an appeal, which initially purported to be under section 20 of the said Slum Act before the Administrator appointed under the said Slum Act. During the course of hearing of this appeal, it was treated to be an appeal under section 30 of the said Slum Act. By his order dated 21/3/1967, the delegate of the administrator held that the order dated December 19, 1966, passed by the Commissioner as the competent Authority giving the aforesaid direction was manifestly illegal and was nto sustainable. For the reasons given in the said order the appeal was accepted and the order of the Commissioner was set aside. It is against this order that the petitioner has filed the present writ petition.

(4) The main argument of the petitioner is that the appeal filed by respondents 2 to 6 challenging the order of the Commissioner making the directions was incompetent and the appeal was nto maintainable under section 30 of the said Slum Act. Section 30 which appears in the miscellaneous chapter of the said Slum Act provides for appeal and says:

'30.Appeals. (1) Except as toherwise expressly provided in this Act, any person aggrieved by any ntoice, order or direction issued or given by the competent authority may appeal to the Administrator within a period of thirty days from the date of issue of such ntoice, order or direction.

(2)Every appeal under this Act shall be made by petition in writing accompanied by a copy of the ntoice, order or direction appealed against.

(3)On admission of an appeal, all proceedings to endorse the ntoice, order or direction and all prosecutions for any contravention thereof shall be held in abeyance pending the decision of the appeal, and if the ntoice, order or direction is set aside on appeal, disobedience hereto shall nto be deemed to be an offence.

(4)No appeal shall be decided under this section unless the appellant has been heard or has had a reasonable opportunity of being heard in person or through a legal practitioner.

(5)The decision of the Administrator on appeal shall be final and shall nto be questioned in any Court.'

(5) The words used in this section are obviously of the widest amplitude and would appear to contemplate appeals against any ntoice, order or direction of the Competent Authority by which any person may be aggrieved. The argument of the petitioner, however, is that the words 'ntoice, order or direction' used in this section refer to the functions and powers which are conferred upon the Competent Authority by the various sections of the said Slum Act which use these expressions and it is only against such ntoices) orders or directions that an appeal under section 30 of the said Slum Act is contemplated and that if widest amplitude is given to section 30, there would be no meaning to those provisions of the said Slum Act which have conferred specific rights of appeal against specific orders. By way of illustration, reference is first made to section 20 of the Act which, in so far as words used in it are concerned, confers a right of appeal against an order refusing to grant permission to execute an order of eviction passed by a Court. It is urged that if unrestricted amplitude or meaning is given to the words of section 30, then it would nto have been necessary to provide in Section 20 for an appeal against an order refusing permission. Reliance has been placed upon a Division Bench judgment of the Punjab High . Court Ajudhia Pershad and tohers v. Chief Commissioner, Delhi and tohers (1) where the question that was referred to the Division Bench was whether an order granting permission to execute the decree was nto appealable by reason of the provisions of Section 30 of the said Slum Act. It was held in this case that the appeal would nto be competent. In comine to this conclusion, the learned Judges went into the scheme of the Act with particular reference to the provisions of section 19 and to the existence of a judicial determination by a Civil Court. They observed :-

'THEreason that no right of appeal has been given against the latter class of orders obviously is that the competent authority has the power to with-hold the permission to execute the decree and such an order seriously affects the rights of the decree-holder and, thereforee, it was necessary that superior authority should be empowered to rehear the matter by way of appeal. But if permission is granted then hearing by way of appeal was nto considered necessary because a competent Court has already passed a decree for eviction and the same has to be executed in the formal course. It is nto possible to envisage a right of appeal being conferred under Section 30 against orders. granting permission when no such right of appeal is clearly intended to be conferred under Chapter VI.'

ANDagain:-

'SECTION 30 being a general provision appearing in the miscellaneous chapter and Section 20 being a special provision giving a right of appeal to the decree-holder only, the meaning sought to be placed on the opening part of section 30 cannto be accepted. These words appear to have reference to the provisions toher than Section 30 which specifically confer a right of appeal in certain eventualities against certain orders. In toher words, if an appeal has been expressly provided for by toher sections of the Act, Section 30 would have no applicability. Thus for the purpose of deciding whether any right of appeat against an order made under section 19, Section 20 alone will have to be referred, with the result that no appeal will lie against an order of the competent authority granting permission. In Civil Writ No. 294-D of 1967 decided by Mehar Singh J. on 13/11/1957 (Punj) it was held that no such appeal lay under section 30 of the Act. I respectfully agree with that view.'

IT is also urged that the Act has similarly provided for appeals under sub-section (4) of section 15 and sub-section (7) of section 10 of the said Act.

(6) I do nto think the Division Bench Authority cited above would advance the case of the petitioner in so far as the point under consideration in this petition is concerned, because that 'case was concerned only with sections 19 and 20 of the said Slum Act and the learned judges had come to the conclusion that they did mainly for the reasons' that there had been previous adjudica- tionin a Civil ^ Court of the rights of the parties and that there would be no justification for giving fresh right to the tenant against whom the order of eviction had been passed to agitate the question of his liability for eviction. They also relied upon the fact that the successful landlord having obtained a judgment in his favor should nto be deprived of his right by the Competent Authority unless he could agitate his rights in an appeal under the said Slum Act also.

(7) As I have stated above, the words of the section are of the widest amplitude and I find difficulty in accepting the argument of the petitioner because if that argument is accepted certain orders or directions which are, in their very nature, judicial or quasi-judicial would bemade final without the aggrieved party having a right of appeal.

(8) Section 4 gives power to the Competent Authority to require improvement of buildings unfit for human habitation and for this purpose he can issue a ntoice upon the owner of the building requiring him to execute the works of improvement specified therein. According to the argument of the petitioner, the issuance of the ntoice would be appealable because the word ntoice appears in section 30 but if in the proceedings pursuant to the ntoice and adverse order is made either against the owner of the building or against its occupier, the latter would have no right of appeal. The curious result of this argument would be that the issuance of a ntoice is challengable in appeal but the determination of rights of parties would nto be. Similar, provision is contained in section 7 of the said Slum Act which gives power to the Competent Authority to order demolition of buildings unfit for human habitation. For the exercise of this power, ntoice to show cause must be given to the owner of the building and to any toher person having an interest in the building.

(9) According to the petitioner's argument, the issuance of this ntoice would be challengeable in appeal but the determination of the Competent Authority upon the cause shown by the owner or occupier of the building would nto be challengeable.

(10) What the petitioner wants me to hold is that the words 'order or direction' used in section 30 of the said Slum Act refer only to orders or directions made under the provisions of the Act. The words 'under the Act' do nto find any place in the first subsection of section 30. The opening words of this section 'except as toherwise expressly provided in this Act' also indicate that the argument of the petitioner has no substance. As I understand these words, they mean that there must be a specific provision in the Act contrary to the provisions contained insection 30, that is to say, it must be provided that an appeal shall nto lie against any particular order or direction. I do nto find any such provisions in respect of an order such as the one which has been passed by the Commissioner in this case. The simple question is whether the order of the Commissioner dated December 19, 1966 is an order or direction. A mere reading of the order is enough to come to the conclusion that it is nto only an order but also a direction.

(11) There is antoher aspect in so far as this petition is concerned and that aspect is on the assumption that my conclusion contained above is wrong. This petition has been filed to invoke the extraordinary jurisdiction of this Court under article 226 of the Constitution of India. If the order of the Administrator which is sought to be quashed is quashed, the result would be that the order or direction of the Commissioner remanding the case to his delegate will be given effect to. Now, the order or direction of the Commissioner in this case is obviously without jurisdiction because there is no provision in the said Slum Act giving any right of review to the Competent Authority in respect of any order passed by its delegate. The fact that the Commissioner retains the power of supervision and control does nto affect the matter because those words cannto refer to supervision and control in respect of the performance of judicial or quasi-judicial functions by the delegate.

(12) In this connection I may refer to a decision of the Supreme Court reported in Air 1965 1486. In this case the Commissioner, Bombay Municipal Corporation had passed an order whereby he had delegated some of his functions 'subject to his control and revision'. It was held that thereby the Commissioner could nto be deemed to have reserved to himself the right of intervening to impose his own decision upon his delegate. It was further observed 'what those words meant was that the Commissioner could control the exercise administratively as to the kinds of cases in which the delegate could take action or the period or time during which the power might be exercised and so and so forth. In toher words, the administrative side of the delegate's duties were to be the subject of control and revision but nto the essential power to decide whether to take action or nto in a particular case.' The result of my allowing the writ would, thereforee, be that an obviously illegal order of the Commissioner would be given effect to. The extraordinary power of the Court cannto, in my view, be called in aid to achieve any such result. thereforee, even if I am wrong on the interpretation placed by me upon section 30 of the said Slum Act, I would refuse to exercise the powers of the Court to quash the order of the Administrator which is impugned by this petition. In the result the petition fails and is dismissed with costs. Costs of counsel assessed at Rs. 200.00.


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