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Voginder Pal Vs. Competent Authority and Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 708 of 1969
Judge
Reported inILR1970Delhi892
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19(4); Code of Civil Procedure (CPC), 1908 - Sections 11
AppellantVoginder Pal
RespondentCompetent Authority and Etc.
Advocates: M.K. Ramamurthi,; J. Ramamurthy,; Bindra Thakur and;
Cases ReferredIn Jyoti Pershad v. Union
Excerpt:
tenancy - eviction - section 19 (4) of slum area (improvement and clearance) act, 1956 - competent authority has to first consider whether eviction of tenant in interest of improvement and clearance of slum areas within meaning of section 19 (4) (b) - eviction of tenant becomes imperative and act unable to protect them when answer is affirmative - competent authority to consider whether tenants would get alternative accommodation within their means when answer is negative. - - the competent authority further held that the tenants were poor persons but hoped 'the construction of the premises which are in a dilapidated condition would be in the nature of improvement and clearance of the slum areas' and 'in that view of the matter, the status of the respondents is nto material'.the..........to be demolished for reconstruction acts as rest indicate in a subsequent proceeding before the competent authority acting under section 19(4)(b) of the slum areas (improvement and clearance) act, 1956, (hereinafter called the act of 1956) and (2) if so, does this finding preclude the competent authority from acting under section 19(4)(a) of the act of 1956. (2) in civil writ 708 of 1969, the landlord (respondent no. 2) obtained an order of eviction against the tenant (petitioner) under section 14(1)(g) of the act of 1958 on the ground that the landlord required the premises bona fide for the purpose of rebuilding the same and such work could nto be carried out without the premises being vacated by the tenant. section 14(1)(g) of the act of 1958 is reproduced below for reference: '14......
Judgment:

V.S. Deshpande, J.

(1) The common questions arising for decision in both these Writ Petitions are:- (1) whether a finding under section 14(1)(g) of the Delhi Rent Control Act, 1958 (hereinafter called the Act of 1958) (corresponding to section 13(1)(g) of the Delhi and Ajmer Rent Control Act, 1952) that the premises are unfit for human habitation and have to be demolished for reconstruction acts as rest indicate in a subsequent proceeding before the competent authority acting under section 19(4)(b) of the Slum Areas (Improvement and Clearance) Act, 1956, (hereinafter called the Act of 1956) and (2) if so, does this finding preclude the competent authority from acting under section 19(4)(a) of the Act of 1956.

(2) In Civil Writ 708 of 1969, the landlord (Respondent No. 2) obtained an order of eviction against the tenant (petitioner) under section 14(1)(g) of the Act of 1958 on the ground that the landlord required the premises bona fide for the purpose of rebuilding the same and such work could nto be carried out without the premises being vacated by the tenant. Section 14(1)(g) of the Act of 1958 is reproduced below for reference:

'14. Protection of Tenant against eviction:- (1) Notwithstanding anything to the contrary contained in any other law or contract no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of the premises on one or more of the following grounds only, namely :- (g) that the premises are required bona fide by the landlord for the purposes of building or re-building or making thereto any substantial additions or alterations and that such building or re-building or addition or alteration cannto be carried out without the premises being vacated.'

(3) As required by sections 19(1)(b) of the Act of 1956, the landlord applied to the competent authority (Respondent No. 1) for permission to execute the order of eviction. The tenant contested the application on the grounds that the premises did nto require re-building and also that the tenant could nto find alternative accommodation within his means.

(4) In granting or refusing to grant such permission, the competent authority was required to consider under section 19(4) of the Act of 1956 the following factors which constitute its three clauses, 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; and (c) such other factors, if any, as may be prescribed.'

(5) The competent authority granted permission to the landlord to execute the order of eviction by the impugned order dated 17th December 1968 (Annexure A to the Writ Petition) for the reasons stated in paragraph 5 thereof reproduced below :

'I have gone through the record and heard the parties at length. Admittedly an order of eviction has been obtained by the petitioner on the ground of personal bona fide requirements for re-building of the disputed premises. The eviction is thus obviously in the interest of improvement and clearance of slum and, thereforee, the permission asked for is to be granted to the petitioner 'without reference to the financial status of the respondent. Since the proper court of law has already determined the ground of eviction, I am nto expected to re-determine the same here and, thereforee, I do nto find any force in the plea of the respondent that the building does nto require reconstructions etc.'

(6) The petitioner has challenged the said order on the grounds that the competent authority was bound to determine for itself and independently of the findings given by the Rent Controller and the Rent Control Tribunal, whether the eviction of the tenant was in the interest of improvement and clearance of the slum areas. He could nto in this respect rely solely on the said findings. Further, the competent authority was also bound to consider whether alternative accommodation within the means of the tenant would be available to him on eviction. The refusal of the competent authority to do the same was contrary to the mandatory provisions of section 19(4)(a) of the Act of 1956.

(7) The defense is that the competent authority has taken into consideration the relevant factor and found that the eviction of' the tenant was necessary for the improvement and clearance of the slum areas. In doing so, the competent authority could accept the findings of the Rent Controller and the Rent Control Tribunal as rest judicata and was nto bound to make a fresh enquiry into the question again. In view of the above finding, it was nto necessary for the competent authority to consider whether the tenant would be able to find alternative accommodation within his means after eviction.

(8) In Civil Writ 422 of 1969, the order of eviction by the landlord (Respondent No. 1) was obtained under section 13(1)(g) of the Delhi and Ajmer Rent Control Act. 1952, the relevant terms of which correspond to section 14(1)(g) of the Act of 1958, on the ground that the landlord required the premises bona fide for the purpose of re-building the same and such work could nto be carried out without the premises being vacated by the tenant. The competent authority observed as follows :-

'IT was contended by the learned counsel for the petitioner that the building; in dispute was in a dangerous and dilapidated condition nto worthy of habitation as held by the Sub Judge in his order dated 16-3-59 and confirmed by the Senior Sub Judge in appeal vide orders dated 8-11-60 and thereforee, the permission should be given for the execution of the said order. This argument carries weight.'

(9) It further held the premises to be 'in a dilapidated condition requiring reconstruction' and granted permission to the landlord to execute the order of eviction against the tenant. The competent authority further held that the tenants were poor persons but hoped 'the construction of the premises which are in a dilapidated condition would be in the nature of improvement and clearance of the Slum Areas' and 'in that view of the matter, the status of the respondents is nto material'. The order of the competent granting the permission is challenged mainly on the ground that the competent authority failed to protect the possession of the tenant even after finding that the tenant was nto able to find alternative accommodation within his means, if evicted. It was further alleged that the premises could be repaired and rebuilt without the tenants being required to vacate the same. The defense is that the eviction has been ordered under section 13(1)(g) of the Delhi and Ajmer Rent control Act, 1952, for re- construction as the premises had become old and dilapidated, the purpose being in the interest of improving and clearing the slum conditions. The permission to execute the order of eviction could, thereforee, be granted by the competent authority even if alternative accommodation was nto within the means of the tenant.

(10) Question I :- In Civil Writ 708 of 1969, the landlord filed certified copies of the judgments of the Rent Controller and the Rent Control Tribunal which show that the following findings of fact were arrived at therein. To quote from the judgment of the Rent Control Tribunal,:-

'THE order of eviction under section 14(1)(g) has been passed by the Additional Rent Controller on the finding that the premises in dispute 'are in a dilapidated or dangerous condition, that the landlord requires them bona fide for reconstruction and that the proposed work cannto be carried out unless the premises are vacated by the tenant. ..... The tenant Amir Chand admitted that one half of the building was in a damaged condition and the respondent landlord was getting that portion demolished. If a substantial portion of a house built at one time was dangerous and deserved to be pulled down it may stand to reason that the other portion could nto be in a very sound condition. . .. .. The respondent landlord examined qualified architects who had inspected the building and stated on oath that it was dangerous and unfit for human habitation. . .. The Rehabilitation authorities had nto agreed to sanction any amount for repairs of the house and the allottee was living in the property 'at his own risk and responsibility. ..... The Assistant Managing Officer inspected the building and reported that it was found in a dangerous condition on an inspection by the field Inspector. . . . . . -In any case the owner landlord cannto be expected to undertake the work of reconstruction of the house piece-meal in Installments'.

(11) In Civil Writ 422 of 1969, the landlord filed a certified copy of the judgment of the Senior Subordinate Judge, Delhi, upholding the order of Subordinate Judge 1st Class, Delhi, containing the following finding :-

'IN view of this, I come to the conclusion that the 'plaintiffs fully established that the building in dispute was nto worthy of habitation; it was in a dangerous and dilapidated condition. It, thus, requires imminent removal and demolition'.

(12) The above evidence shows that the orders of eviction were passed on the finding that the premises were unfit for human habitation and could nto be reconstructed without demolition, The scope of section 13(1)(g) of the Delhi and Ajmere Rent Control Act, 1952, which corresponds to section 14(1)(g) of the Act of 1958, as considered by the Supreme Court in Neta Ram v. Jiwan Lal : AIR1963SC499 , includes two types of cases. In the first type of cases, the reconstruction after eviction is permitted for such reasons .as the possibility of the building being put to a more profitable use after reconstruction. In the second type of cases, the building may have to be reconstructed because it has become unfit for human habitation and the reconstruction cannto be done without the eviction of the tenants. The question is whether such a finding acts as rest judicata when the competent authority has to consider under section 19(4)(b) whether the eviction of the tenant G is in the interest of improvement and clearance of the slum areas. This depends on the meaning of the words 'improvement and clearance of the slum areas' used in section 19(4)(b) of the Act of 1956. Section 2(j) of the said Act defines a 'work of improvement' to include on the one hand repairs short of demolition and on the other hand, the demolition of any building. Section 3 of the Act authorises the competent authority to declare an area to be a slum area if the buildings in that area are in any respect unfit for human habitation or are detrimental to safety, health or morals. Chapter Iii of the Act deals with slum improvements. Sections 4 and 5 there under deal with the repair of a building without its demolition provided that the building is unfit for human habitation. Section 7 in the same Chapter deals with the demolition of a building which is unfit for human habitation. Chapter Iv deals with slum clearance which involves demolition of all the buildings in the slum area unless a building which is nto unfit for human habitation or dangerous or injurious to health is excluded from such demolition. From these provisions, we may conclude that the meaning of 'improvement and clearance of slum areas' is either the repair of the demolition of buildings which are unfit for human habitation. In the present cases, the findings given under section 14(1)(g) are that the buildings are unfit for human habitation and have to be demolished for reconstruction. Under the Act of 1956, thereforee, these findings would mean that the demolition of these buildings would be 'in the interest of improvement and clearance of the slum areas' within the meaning of section 19(4)(b).

(13) The principle of rest judicata is nto restricted to section 11 of the Civil procedure Code but is applicable to proceedings which may nto be strictly suits in a Civil court on the ground of public policy (Daryao and others v. State of U.P. : [1962]1SCR574 . The Rent Controller and the Rent Control Tribunal under the Act of 1958 are the successors of the civil Courts acting under the Delhi and Ajmere Rent Control Act, 1952. Their decisions have the effect of rest judicata. (Bal Kishan Bansi Ram v. Gopi Chand . Under section 19(3) of the Act of 1956, the competent authority has to make such summary enquiry as it thinks fit before granting or refusing to grant the permission to the landlord to execute the order of eviction against the tenant. The discretion of the competent authority was soundly exercised when it decided in both these cases to accept these findings as sufficient to show that the eviction of the tenant was in the interest of improvement and clearance of the slum areas. I would go further and hold that these findings act as rest judicata and, thereforee, they preclude the competent authority from again enquiring into the same question whether the premises were unfit for human habitation and had to be demolished in the interest of improvement and clearance of the slum areas. If the competent authority were to hold such enquiry, it could be resisted by the landlord on the ground that the previous findings between the parties fact as rest judicata and preclude the enquiry.

(14) Question 2 :- In Jyoti Pershad v. Union territory of Delhi : [1962]2SCR125 , the Supreme Court laid down the following rule : The policy of the Act of 1956 would appear to be that a tenant of a slum dwelling should nto be evicted if he would be unable to find alternative accommodation within his means after such eviction. To this rule, their Lordships seem to have recognised only one exception: 'The Act itself contemplates eviction in cases where on the ground of the house being unfit for human habitation, it has to be demolished. . . . . . So long thereforee as a building can without great detriment to health or safety, permit accommodation, the policy of the enactment would seem to suggest that the slum dweller should nto ' be evicted unless alternative accommodation could be obtained for him'. It is clear, thereforee, that the Act of 1956 did nto protect a tenant from eviction when the premises were unfit for human habitation and residence therein would be to the great detriment of the health or safety of the tenants. For, the Legislature could nto have intended that the possession of the tenants in such houses should be protected even if the tenants are killed by the falling of the houses over their heads or the health and safety of the tenant are in danger by living therein. It follows, thereforee, that when the exception applies, the rule does nto apply.

(15) The Competent authority acting under section 19(4) of the Act of 1956 has, thereforee, first to consider whether the eviction of the tenant is in the interest of improvement clearance of the slum areas within the meaning of clause (b) 1creof. If the answer is in the affirmative, then the eviction of i e tenant becomes imperative and the Act of 1956 is unable to . protect them. It is only if the answer is in the negative that the con 'tent authority would proceed to consider whether the tenants would get alternative accommodation within their means on action. In the present two cases, the competent authority did ni need to consider the means of the tenants and was in fact 'red from considering them under clause (a) of section 19(4) i',,imu' i as clause (b) thereof was sufficient for the grant of the mr ion by the competent authority. I find so.

(16) Both the Writ Petitions are thereforee, dismissed but any order as to costs.


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