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Madan Lal Vs. Competent Authority Slum Areas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 97 of 1968
Judge
Reported inILR1970Delhi106
ActsDelhi Rent Control Act, 1958; Constitution of India - Article 226; Slum Area (Improvement and Clearance) Act, 1956 - Sections 19
AppellantMadan Lal
RespondentCompetent Authority Slum Areas
Advocates: Y. Dayal and; A.B. Lal, Advs
Cases ReferredSatyanarayan. v. Mallikarjun
Excerpt:
.....act . 1958 operates as rest judicata in proceedings between parties under the slum areas act -- competent authority bound to take notice of position as conclusively established between parties in proceedings under the rent act -- relief under article 226 -- conduct of petitioner is a relevant consideration for -- superintendence -- power of high court under article 227 -- scope of -- constitution of india, articles 226 and 227. ; the decision of the authorities under the rent act acts as rest judicata on general principle and binds the parties in proceedings under the slum area act. ; where, thereforee, the finding in the eviction proceedings under the rent control act was that the petitioner had sub-let the shop in question and had parted with its possession: ; that it was nto open..........authority. the learned counsel pointed out that under the various provisos to section 14 of the rent act eviction of a tenant could be ordered on various grounds many of which would be quite irrelevant when the competent authority is considering the application under section 19 of the slum act. for instance, the finding whether the tenant has been in arrears of rent would have no bearing on the question whether the order of his eviction should be executed or not. the competent authority should nto have, thereforee, taken into consideration the findings under the rent act that the premises had been sublet by the petitioner. the competent authority was bound to make an independent inquiry whether the petitioner was in possession of the premises at the time the application under section.....
Judgment:

V.S. Deshpande, J.

(1) This writ petition purporting to be made under Articles 226 and 227 of the Constitution challenges the validity of the order dated 5-12-1967 passed by the Competent Authority (respondent No. 1) under Section 19(3) of the Slum Areas (Improvement & Clearance) Act, 1956 as amended by Act 48 of 1964 (hereinafter called the Slum Act) granting permission to the landlord (respondent No. 2) to execute the order of eviction obtained by him against the petitioner tenant under proviso (b) to sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Rent Act').

(2) The petitioner was a tenant in Shop No. 896 of which respondent No. 2 was the landlord. Respondent No. 2 alleged that the petitioner had sublet the shop and had parted with possession of it and was, thereforee, liable to be evicted under proviso (b) to sub-section (1) of Section 14 of the Rent Act. The eviction proceedings filed by respondent No. 2 under the Rent Act were resisted by the petitioner, inter alia, on the ground that the premises had nto been sublet by the petitioner who had nto parted with possession thereof. The Additional Rent Controller in an order dated 20-5-1965 at Annexure 'A' of the petition, however, held that the petitioner Madan Lal had parted with the possession of the shop and sublet the same at first to one Suraj Parkash, tea vendor and then to Nanu Ram, who sold ready- made clothes. He, thereforee, passed an order for the eviction of the petitioner under proviso (b) to sub-section (1) of Section 14 of the Rent Act. The appeal filed by the petitioner to the Rent Control Tribunal was dismissed by the said Tribunal by order dated 10-12-1965, which is at Annexure 'A' to the counter-affidavit filed by respondent No. 2 in the present case. Respondent No. 2 thereupon applied on 5-2-1966 to the Competent Authority under Section 19 of the Slum Act for permission to execute the order of eviction against the petitioner. A copy of the said application is at annexure 'B' to the writ petition. The petitioner filed a reply to this application before the Competent Authority on 18-7-1966 (copy at Annexure 'C' of the petition) again denying that he had sublet the premises or parted with possession thereof. He further said that he had removed Nanu Ram from doing stitching work in the shop and contemplated and intended doing his own business of printing cloth in the said shop. He was trying to manage funds for that purpose and he would start work for making both ends meet. He had large family to maintain and he was a poor man. If he were to be evicted he would bound to create a slum and would be thrown on the road. In a counter-affidavit filed on 2-1-1967 the petitioner again asserted that the premises were now in his possession and he was carrying on printing of cloth work therein. He requested that the premises may be gto inspected by the Competent Authority. Respondent No. 2 replied to the application for inspection on 21-3-1967 to the effect that the Authorities of the Rent Act had already decided that the petitioner had sublet and parted with the possession of the premises. The allegation of the petitioner at this stage that he is in possession and occupation of the disputed shop is immaterial and cannto be considered by the Competent Authority. There was, thus, no need for inspection.

(3) On these pleadings arguments were heard by the Competent Authority, who passed the impugned order dated 5-12-1967, which is Annexure 'H' to the petition, granting respondent No.2 permission to execute the order of eviction. The Competent Authority passed the question whether the respondent if evicted, will create a slum and answered it as follows : 'The respondent has, it has been held by the Rent Controller and the Tribunal, sublet the premises in dispute. The question of subletting cannto be reagitated here. It has been finally adjudicated upon by the Controller and the Tribunal.............. .Since the respondent is nto in possession of the premises which is a shop, the question of his creating another slum does nto arise. His status, thereforee, loses all its significance. It is only looked into when there is question of acquiring alternative premises. ........ .Therefore, this question does nto arise. This is a fit case where permission should be granted................' The learned counsel for the petitioner has attacked the above mentioned order by the Competent Authority mainly on the ground that the findings by the Authorities under the Rent Act were irrelevant for the consideration of the application for permission to execute the order of eviction under Section 19 of the slum Act by the Competent Authority. The learned counsel pointed out that under the various provisos to Section 14 of the Rent Act eviction of a tenant could be ordered on various grounds many of which would be quite irrelevant when the Competent Authority is considering the application under Section 19 of the Slum Act. For instance, the finding whether the tenant has been in arrears of rent would have no bearing on the question whether the order of his eviction should be executed or not. The Competent Authority should nto have, thereforee, taken into consideration the findings under the Rent Act that the premises had been sublet by the petitioner. The Competent Authority was bound to make an independent inquiry whether the petitioner was in possession of the premises at the time the application under Section 19 of the Slums Act was under consideration and the Competent Authority was bound to decide this application on its own merits irrespective of the findings given by the Authorities under the Rent Act. The Competent Authority is bound under sub-section (4) of Section 19 of the Slum Act to consider if alternative accommodation within his means would be available to the tenant. The Competent Authority in this case refused to make an independent determination of this question and simply relied on what was held by the Authorities under the Rent Act. In doing so it has acted contrary to the provision of section 19(4) of the Slum Act and its order was liable to be set aside.

(4) The learned counsel for respondent No. 2 met the above arguments as followed : Section 19 of the Slum Act deals, inter aha, with the question as to whether permission to execute the order of eviction passed under the Rent Act should be given by the Competent Authority or not. The Competent Authority cannot, thereforee, refuse to take notice of what has been decided under the Rent Act. The petitioner has no independent private right to occupy the premises after the order of eviction is passed against him under the Rent Act. The Competent Authority has to take into consideration only the public aspect of the question whether a fresh slum would be created by the eviction of the tenant. The fact that the premises were used for business and nto for residence coupled with the finding of the Authorities under the Rent Act that the petitioner was out of possession was sufficient for the Competent Authority to come to the conclusion that the question of finding alternative accommodation of the petitioner does nto rise at all, as he is already out of possession of the premises.

(5) The legal position, as it appears to me, is set out in the following paragraphs. The private right of property of the tenant is to be adjudicated upon by the Authorities under the Rent Act. This has been done. The decision of the Authorities under the Rent Acts as rest judicata on general principle and binds the parties. It is nto open, thereforee, for the petitioner to contend that he had either nto sublet the shop or had nto parted with its possession.

(6) The finding between the parties is conclusive that the petitioner had sublet the shop and had parted with its possession.

(7) The effect of the rest judicata does nto extend beyond the date of the final decision terminating the proceedings under the Rent Act, viz. the decision of the Rent Control Tribunal and perhaps of the High Court dismissing the appeal in liming. The finding is that only till that date the petitioner had sublet the premises and had parted with possession thereof. After the date of the final decision only the execution of the order of eviction remains to be done. The decision of the Rent Authorities does not, however, mean that the circumstances and the facts cannto change thereafter. It is possible, thereforee, that the petitioner may have persuaded his sub-tenant to give up possession to him and the petitioner may have actually come into the possession of the premises after the conclusion of the proceedings under the Rent Act.

(8) It would depend entitled on the facts of a particular case whether the Competent Authority would be bound to take into consideration the change in circumstances and facts occurring after the termination of the eviction proceedings under the Rent Act. For instance, if the application for permission to execute the order of eviction is made along time after the final order of eviction was passed and in the meanwhile the petitioner has come back into possession of the premises and has continued therein for a substantially long time and has no other alternative accommodation within his means, the Competent Authority may well be justified in giving due consideration to the facts that despite the eviction order on the ground of the tenant being out of possession, for a considerable time thereafter he is actually in possession and has no other alternative accommodation within his means. On the other hand, if the application for permission to execute the eviction order is made immediately after the termination of the eviction proceedings (as was done in the present case) the Competent Authority would be justified in holding that till very recently the petitioner was certainly out of possession as conclusively found by the Authorities under the Rent Act. The coming back into the possession of the premises by the petitioner being very recent, cannto be given any importance. For, the petitioner who could do without the premises for seven or eight years, as held by the Authorities under the Rent Act, certainly did nto need the premises at all for his own business. If he was out of possession for such along time, it cannto be said that he would have to find alternative accommodation within his means if the order of eviction is to be executed. For, he was already out of possession for a very long time. During this long period of time, he had apparently no need for the occupation of the premises. If so, it cannto be said that he did nto have other alternative accommodation.

(9) Similarly, the relevancy of the findings of the Authorities under the Rent Act in considering an application under Section 19 of the Slum Act depends on the facts and circumstances of each particular case. In the present case, the finding that the petitioner was out of possession of the premises for seven or eight years is certainly relevant inasmuch as it goes to the roto of the question whether the petitioner would have to find alternative accommodation if the order of eviction is to be executed. The language of clause (a) of sub-section (4) of section 19 of the Slum Act pre-supposes that the execution of the order of conviction would result in physically throwing the tenant out of the premises. It is only for that reason that the question of his finding an alternative accommodation within his means is to be considered is a binding decision between the parties that the petitioner has been out of possession for a long time, the Competent Authority cannto ignore the said decision under the Rent Act. For, the decision would show that the question of physical eviction of the Tenant out of the premises does nto arise at all. A person, who is already out of possession, does nto have to be physically thrown out of the premises. It may be that recently the petitioner may stage a come back into the premises. Nevertheless, if the petitioner could do without the premises for seven or eight years then it cannto be said that if he is now evicted from the premises he would need alternative accommodation within his means. For, the same alternative accommodation which he had during the period he was out of possession of the premises would still be available to him. The petitioner has nto said that the accommodation which was with him during the last seven or eight years for which he was out of possession of the premises, has now been lost to him. thereforee, the question of his needing alternative accommodation simply does nto arise in the present case.

(10) Under sub-section (3) of Section 19, the Competent Authority is required to give opportunity to the parties of being heard. A full hearing was given to the parties by the Competent Authority. The Competent Authority is to make such summary inquiry into the circumstances of the case as it thinks fit. The scope of the enquiry is, thereforee, to be determined by the Competent Authority according to the needs of each case. It cannto be said that the Competent Authority is bound to record evidence in each case. In Ashok Kumar v. Competent Authority, (1) decided by a Division Bench of this Court on 14-8-1969, speaking for the Court I had occasion to point out that it is for the Competent Authority to decide how summary an enquiry should be in a particular case. If the witnesses are present before the Authority, the Authority has to examine them 'unless their evidence is irrelevant or the essential summary nature of the enquiry precludes the Competent Authority from taking their evidence'. The above observation makes it clear that the Competent Authority is nto bound to examine witnesses in a case in which it is of the opinion that the enquiry has to be such as to dispense with any oral evidence. It appears to me that the present case was eminently one in which no oral evidence was required to be taken by the Competent Authority. Nor was it necessary for the Competent Authority to inspect the premises. For, even if it is assumed that the petitioner has now come back into the possession on the premises, this fact does nto show that the execution of the eviction order would have really necessitated the securing of the alternative accommodation within his means for him. For, he already had an alternative accommodation during the past seven or eight years, in which he was carrying on, though he was out of possession of the premises. There is no pleading by him that this alternative accommodation is nto now available to him. The Competent Authority was nto only entitled, but also bound to take notice of this position as conclusively established between the parties by the decision under the Rent Act. In view of this position so established, the Competent Authority was entitled nto to inspect the premises and to decide the application without taking any evidence.

(11) In so far as the petition is made under Article 226 of the Constitution, the conduct of the petitioner is a relevant consideration. The petitioner, who was out of possession of the premises for seven or eight years could apparently do without the premises as he already had an alternative accommodation. By merely re-entering the premises now and without stating that the alternative accommodation is nto now available to him he cannto ask this Court to compel the Competent Authority to consider his case independently of the finding under the Rent Act ignoring the very recent facts as decided between the parties. On the ground of this conduct alone, the petitioner would be disentitled to relief under Article 226 of the Constitution.

(12) As for Article 227 of the Constitution, the following observation of the Supreme Court in Satyanarayan. v. Mallikarjun (2) may be borne in mind :

'HOWEVER, wider it may be than the provisions of s. 115 of the Code of Civil Procedure, it is well established that the High Court cannto in 'exercise of its powers under that section (s. 107 of the Government of India Act, 1915 corresponding to Act 227 of the Constitution) assume appellate powers to correct every mistake of law. Here there is no question of assumption of excusive jurisdiction or refusal to exorcise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error nto being apparent on the face of the record, cannto be corrected by the High Court in revision under s. 115 of the Code of Civil Procedure or under Art. 227.'

(13) As I read the 7th paragraph of the impugned order, I see that the Competent Authority correctly addressed itself to the question which has to be considered by it under clause (a) of sub-section (4) of Section 19 of the Slum Act. It was also right in taking it as established that the petitioner is out of possession of the premises with the effect that the question of finding alternative accommodation for him does nto arise at all. It may nto have spelt out in detail as to whether the recent pre-occupation of the premises by the petitioner makes any difference in the legal position. It was implicit, however, in its decision that it does nto make any difference. I have spelt out fully above all the argument that can be adduced in favor of the petitioner and come to the conclusion that none of them makes any difference to the basically sound conclusion of the Competent Authority. Even if I were sitting in appeal over the decision of the Competent Authority, I would nto have disturbed the finding of the Competent Authority merely because it did nto spell out the position in greater detail. It is well known that the appellate Court is nto entitled to upset the finding of the Court below merely because the decision appealed against does nto give fully all the possible reasons and the appellate Court can add to the reasons in support of the decision. There is no reason why the scope of the superintendence over the Competent Authority by the High Court should be different in this respect. In the particular circumstances of the present case, the Competent Authority was fully justified in coming to the conclusion that the petitioner is nto in need of any alternative accommodation as he has been already out of possession of the premises. This finding is nto only with jurisdiction but also factually and legally correct. There is, thereforee, absolutely no reasons to interfere with the same.

(14) The writ petition is, thereforee, dismissed but without any order as to costs.


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