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Madan Lal Vs. Competent Authority and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 22 of 1969
Judge
Reported inILR1972Delhi857
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19
AppellantMadan Lal
RespondentCompetent Authority and anr.
Advocates: Y. Dayal,; Maehswar Dayal and; B.N. Nayar, Advs
Cases ReferredOm Parkash v. Tej Narain and
Excerpt:
slum areas (improvement and clearance) act - section 19--scope and operation of--finding under rent control act--whether binding on parties in application under slum areas act.; that the final finding by the authority under the rent control act that the tenant has sublet or parted with possession of the shop is binding on the parties in the application for eviction under the slum areas act and operates as res-judicata.; that section 19 of the slum areas act clearly shows that even though a landlord had a cause of action for eviction of his tenant and had actually obtained a decree or order for eviction, and even though the decree or order is binding on the parties and the judgment operates as rest judicata, the said decree or order cannot be executed unless the .....t.v.r. tatachari, j.(1) this letters patent appeal was filed by madan lal, a tenant, against the judgment of v. s. deshpande, j. in civil writ petition no 97 of 1968, pronounced on april 1, 1969, dismissing the said writ petition and confirming an order, dated december 5, 1967, passed by the competent authority, slum areas (improvement and clearance) (hereinafter referred to as the 'slum areas act'), and whereby permission was granted to the landlord. dr. r.v. singh, to execute an order of eviction obtained by him against the tenant under proviso (b) to sub-section (1) of section 14 of the delhi rent control act, 1958. (2) the appellant herein was a tenant since 1943 in respect of shop no. 896, in ward no. iv, nai sarak, delhi. dr. r.v. singh was the landlord. alleging that the tenant had.....
Judgment:

T.V.R. Tatachari, J.

(1) This Letters Patent Appeal was filed by Madan Lal, a tenant, against the judgment of v. S. Deshpande, J. in Civil Writ Petition No 97 of 1968, pronounced on April 1, 1969, dismissing the said writ petition and confirming an order, dated December 5, 1967, passed by the Competent Authority, Slum Areas (Improvement and Clearance) (hereinafter referred to as the 'Slum Areas Act'), and whereby permission was granted to the landlord. Dr. R.v. Singh, to execute an order of eviction obtained by him against the tenant under proviso (b) to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958.

(2) The appellant herein was a tenant since 1943 in respect of shop No. 896, in Ward No. Iv, Nai Sarak, Delhi. Dr. R.v. Singh was the landlord. Alleging that the tenant had sublet the shop and had parted with possession of it, the landlord filed a petition on July 28, 1962, before the Additional Rent Controller, Delhi, praying that the tenant may be ordered to be evicted under proviso (b) to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. The tenant resisted the petition and contended that the premises had not been sublet by him, and that he had not parted with possession thereof. By an order, dated May 20, 1965, the Additional Rent Controller held that the tenant had parted with possession of the shop and sublet the same at first to one Suraj Parkash, a tea vendor who ran a tea shop for three or four months, and then to Nanu Ram, father of Suraj Parkash, who was sitting in the shop, making ready-made garments and selling the same. The Additional Rent Controller, on the basis of his finding, passed an order for the eviction of the tenant under proviso (b) to subsection (1) of section 14 of the Delhi Rent Control Act. The tenant preferred an appeal to the Rent Control Tribunal, Delhi, but it was dismissed by the Tribunal on December 10, 1965.

(3) The landlord then applied to the Competent Authority, on February 5, 1966, under section 19 of the Slum Areas (Improvement and Clearance) Act 1956, as amended by Act 43 of 1964, praying for permission to execute the order of eviction against the tenant. He stated in the application that the premises in question was not a dwelling house and sub-tenants have been unlawfully carrying on their business in the said premises, and that the tenant along with his family was residing at Gandhi Nagar, Delhi, and, thereforee, the question of creating a slum on his eviction did not arise at all. The tenant filed a reply in opposition to the application. In the said reply, he denied that he had parted with possession of the shop or sublet the same, and pleaded that he himself had been in possession and occupation of the premises, that Suraj Parkash was formerly a servant of his and was no longer working with him, that he had started the work of ready-made clothes and Nanu Ram was a tailor sitting on the Chabutra of the shop for stitching readymade clothes as an employee on daily wages according to his work, that the said work of ready-made clothes was his own and the shop had been in his actual possession and occupation, and that no other person had any concern whatsoever with the same. He added that it was absolutely wrong and false to say that the shop was ever sublet to Suraj Parkash, that Suraj Parkash used to work only as an employee of his about five or six years ago, that he had stopped the work due to the losses and dispensed with the services of Suraj Parkash, and that he subsequently started the work of ready-made clothes which too proved to be unprofitable and he, thereforee, had to stop that work also and dispense with the services of Nanu Ram by way of tailoring work. Thus, his plea was that Suraj Parkash had left his shop some five or six years ago and Nanu Ram also had since been sent away, and that at the time of the application for permission to execute the order of eviction, he himself was in possession and occupation of the shop. He also alleged in his reply I that he had big family consisting of himself, his wife, and five daughters, that he was extremely poor and used to maintain his family with the little income which he used to derive from his work in the suit premises, and that he had no source of income and was consequently bound to create a slum in case he was evicted from the suit premises. He also filed an application on January 9, 1966, stating that he had been in occupation of the suit premises and doing his printing work in it, and praying that the premises may be got inspected.

(4) By his order, dated December 5, 1967, the Competent Authority held that the only question for consideration was whether the tenant, if evicted, would create a slum, that it was held by the Additional Rent Controller and the Rent Control Tribunal in the proceedings under the Rent Control Act that the tenant had sublet the premises in dispute and the same could not be re-agitated again before it as the order of the Tribunal had become final so far as the question of subletting was concerned, that since the tenant was not in possession of the premises which was a shop, the question of his creating another slum did not arise, and that the question of his status or means to acquire alternative accommodation need not be gone into as the tenant was already held to have sublet the premises in question and was not in possession thereof. In that view, the Competent Authority granted permission to the landlord to execute the order of eviction against the tenant.

(5) Aggrieved by the said order, the tenant filed a Writ Petition (C.W.P. No. 97 of 1968) in this Court under Articles 226 and 227 of the Constitution of India praying that the order of the Competent Authority be quashed, and the same was heard by v.S. Deshpande J. It was contended before the learned Judge that the findings by the authorities under the Rent Control Act were irrelevant for the consideration of the application for permission to execute the order of eviction under section 19 of the Slum Areas Act by the Competent Authority, that the Competent Authority should not have, thereforee, taken into consideration the finding of the Additional Rent Controller and the Rent Control Tribunal that the suit premises had been sublet by the tenant, that the Competent Authority was bound to make an independent inquiry as to whether the tenant was in possession of the premises at the time the application under section 19 of the Slum Areas Act was being considered and decide the application on its own merits irrespective of the finding given by the authorities under the Rent Control Act, and that the Competent Authority was also bound under sub-section (4) of section 19 of the Slum Areas Act to consider if alternative accommodation within his means would be available to the tenant. On the other hand, it was contended on behalf of the landlord that the Competent Authority was bound to take note of what was decided under the Rent Control Act, that the fact that the premises was used for business and not for residence coupled with the finding of the authorities under the Rent Control Act that the tenant was out of possession was sufficient for the Competent Authority to come to the conclusion that the question of finding alternative accommodation by the tenant did not arise at all as he was already out of possession of the premises in dispute.

(6) By his judgment, dated April 1, 1969, Deshpande J. accepted the contention advanced on behalf of the landlord. It is necessary to set out in some detail the reasons given in the judgment. The learned Judge observed that the decision of the authorities under the Rent Control Act was rest judicata on general principle and bound the parties, that it was not, thereforee, open for the tenant to contend that he had either not sublet the shop or had not parted with its possession, and that the finding that the tenant had sublet the shop and had parted with its possession was conclusive between the parties. The learned Judge next observed that the effect of rest judicata did not extend beyond the date of the final decision terminating the proceedings under the Rent Control Act, and that the final decision was only that till that date the petitioner had sublet the premises and had parted with possession thereof.

(7) The learned Judge pointed out that after the date of the final decision in the proceedings under the Rent Control Act, only the execution of the order of eviction remained to be done, that the decision of the rent authorities did not, however, mean that the circumstances and the facts could not change thereafter, and that it was possible that the tenant may have pursuded his sub-tenant to give up possession to him and may have also actually come back into the possession of the premises after the conclusion of the proceedings under the Rent Control Act. The learned Judge then observed that it would depend entirely on the facts of a particular case whether the Competent Authority would be bound to take into consideration the change in the circumstances and the facts occurring after the termination of the eviction proceedings under the Rent Control Act, that if the application for permission to execute the order of eviction is made a long time after the final order of eviction was passed and in the meanwhile the tenant has come back into possession of the premises and has continued therein for a substantially long time and has no alternative accommodation within his means, the Competent Authority may well be justified in giving due consideration to the fact 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, and that, on the other hand, if the application for permission to execute the order of eviction is made immediately after the termination of the eviction proceedings, 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 Control Act. The learned Judge further observed that if the coming back into the possession of the premises by the tenant is very recent, the same cannot be given any importance because the tenant could do without the premises for a long time, and, thereforee, did not need the premises at all for his own business, and that it cannot, thereforee, be said that he would have to find alternative accommodation within his means if the order for eviction is to be executed. The learned Judge went on to observe that in the present case there was a finding by the authorities under the Rent Control Act that the tenant was out of possession of the premises for seven or eight years, that the tenant who was already out of possession did not have to be physically thrown out of the premises, that it may be that recently the tenant might have staged a come back into the premises, and that nevertheless if the tenant could do without the premises for seven or eight years, then it could not be said that if he is now evicted from the premises he would need alternative accomodation within his means because the same alternative accommodation which he had during the period he was out of possession of the premises would still be available to him. In that view, the learned Judge held that the question of his needing alternative accommodation did not arise in the present case.

(8) The learned Judge next pointed out that under section 19(3) of the Slum Areas Act the Competent Authority is required to give opportunity to the parties of being heard, that as held in Ashok Kumar v. Competent Authority, C.W. No. 896 of 1966(^), decided by a Division Bench of this Court on 14th August, 1969, the Competent Authority is only to make such summary inquiry into the circumstances of the case as it thinks fit, that the Competent Authority is not bound to examine wit- nesses in a case in which it is of the opinion that the inquiry has to be such as to dispense with any oral evidence, that the tenant in the present case had already 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, that there was no pleading by him that the said alternative accommodation was no longer available to him, and that in those circumstances, the Competent Authority was entitled not to inspect the premises and to decide the application of the landlord for premission without taking any evidence.

(9) The learned Judge next observed that in a petition under Article 226 of the Constitution the conduct of the petitioner is a relevant consideration, that the tenant in the present case, who was out of possession of the premises for seven or eight years, would apparently do without the premises in dispute as he already had an alternative accommodation, and by merely re-entering the premises now and without staling that the alternative accommodation is not now available to him he cannot ask the Court to compel the Competent Authority to consider his case independently of the finding under the Rent Control Act ignoring the very recent facts as decided between the parties, and that on the ground of the said conduct alone, the tenant in the present case was disentitled to relief under Article 226 of the Constitution. Then, referring to Article 227 of the Constitution, the learned Judge observed that as held by the Supreme Court in Satyanarayan v. Mallikarjun, : [1960]1SCR890 , the High Court cannot, in exercise of its powers under Article 227, assume appellate powers to correct every mistake of law, that the Competent Authority was fully justified in the present case in coming to the conclusion that the tenant was not in need of any alternative accommodation as he had been already out of possession of the premises, and that the said finding of the Competent Authority was not only within his jurisdiction but also factually and legally correct and, thereforee, there was absolutely no reason to interfere with the same. In that view, the learned Judge dismissed the writ petition. It is against the said judgment that the present Letters Patent Appeal has been filed by the tenant.

(10) Shri Yogeshwar Dayal, learned counsel for the appellant, contended that the learned single Judge ought to have held that the whole approach of the Competent Authority to the question for determination before it in the application under section 19 of the Slum Areas Act was entirely wrong, and that the Com petent Authority failed to appreciate the legal effect of the find- ing of the authorities under the Rent Control Act and the scope of the enquiry contemplated by section 19 of the Slum Areas Act. After hearing the learned counsel, we are inclined to agree with the said contention.

(11) The landlord. Dr. R.v. Singh, instituted the proceedings for eviction of the tenant under the Rent Control Act on July 28, 1962, mainly on the allegation that the tenant had sublet the premises in dispute. On the evidence placed before him, the Additional Rent Controller held by his order, dated May 20, 1965, that the tenant had parted with possession of the shop in dispute and sublet the same at first to one Suraj Parkash, a tea-vendor, for three or four months and then to Nanu Ram, father of Suraj Parkash, and on the basis of the said finding passed an order of eviction against the tenant. A perusal of the order of the Additional Rent Controller shows that he did not give any specific finding that the tenant Madan Lal was in actual occupation of any other premises for his work. He only found that the tenant had sublet or parted with possession of the shop in dispute. The same was quite sufficient for the passing of the order of eviction under proviso (b) to sub-section (1) of section 14 of the Delhi Rent Control Act, and apparently that was the reason why the Additional Rent Controller did not record any specific finding about the occupation of some other premises by the tenant for his work. The order of the Additional Rent Controller was confirmed by the Rent Control Tribunal by its order, dated December 10, 1965. The Tribunal also merely found that the tenant had sublet or parted with possession of the shop in dispute, and did not record any specifie finding that the tenant was having other alternative accommodation for his work. Thus, the final decision or finding of the authorities under the Rent Control Act was that the tenant had, as alleged by the landlord, sublet the shop in dispute some time prior to the date on which the application for eviction was filed. The learned single Judge observed that the said finding has become final and is binding on the parties, and that it also operates as rest judicata.

(12) In this context, Mr. B.N. Nayar, learned counsel for the I respondent-landlord, referred us to the decision in Joginder Pal v. Competent Authority. 1969 R.C.R. 1073. In that case v. S. Deshpande J. held that a finding under section 14(1)(g) of the Delhi Rent Control Act, 1958, that a premises is unfit for human habitation and has to be demolished for reconstruction, acts as rest judicata in a subsequent proceeding before the Competent Authority acting under section 19(4)(b) of the Slum Areas Act, and precludes the Competent Authority from again enquiring into the same question whether the premises was unfit for human habitation and had to be demolished in the interest of improvement and clearance of slum areas. The learned Judge also held that in such a case clause (b) of section 19(4) is sufficient for the grant of the permission by the Competent Authority, and the Competent Authority does not, thereforee, need to consider the means of the tenant and is in fact barred from considering the same. The second part of the decision is not relevant for the purposes of the present case. As regards the first part of the decision, it cannot be disputed that the final finding by the authorities under the Rent Control Act is binding on the parties and operates as rest judicata.

(13) However, in the present case, it has to be noted that the parting with possession or subletting by the tenant was the cause of action for the landlord to file the application for eviction, and the point for determination in the eviction proceedings was as to whether the tenant had so parted with possession or sublet. A finding on the said point by the Additional Rent Controller, in the first instance, and by the Tribunal on appeal, that the tenant had so sublet or parted with possession would no doubt be binding and operate as rest judicata between the parties. But, what would be rest judicata is the decision that the tenant had so parted with possession or sublet the shop in question prior to the application for eviction. The question as to whether or not the parting with possession or subletting had continued even after the filling of the application for eviction was immaterial for the purposes of the eviction proceedings, as it was the said parting with possession or subletting that was the cause of action for the landlord, and when that fact was alleged and established, and order of eviction had to be passed by virtue of proviso (b) to sub-section (1) of section 14 of the Rent Control Act. thereforee, the final decision or finding in the Rent Control proceedings could not and did not operate as rest judicata on the question as regards the continuance of the parting with possession or subletting. The learned single Judge observed that the effect of rest judicata did not extend beyond the date of the final decision terminating the proceedings under the Rent Control Act, and that the final decision was only that till that date the petitioner had sublet the premises and had par- ted with possession thereof. With due deference to the learned Judge, the said observation cannot be accepted as correct as the decision or finding of the Additional Rent Controller as well as the Tribunal was that the tenant had sublet or parted with possession of the shop in dispute prior to the filing of the application for eviction, as alleged by the landlord, and not that the said parting with possession or subletting had continued till the date of the order of the Tribunal. In fact, as pointed out above, the said question as regards the continuance of the parting with possession or subletting was not within the scope of and was not necessary for the purpose of the proceedings for eviction under proviso (b) to sub-section (1) of section 14 of the Rent Control Act. However, the learned Judge had himself observed that the decision of the authorities under the Rent Control Act did not mean that the circumstances and the fact could not change thereafter, and that it was possible that the tenant may have persuaded his sub-tenant to give possession to him and may have actually come back into the possession of the premises after the conclusion of the proceedings under the Rent Control Act. As stated earlier, the case of the tenant was that he had never sublet or parted with possession of the shop in dispute and had always been in possession of the same.

(14) The question then is as to what exactly was the scope of the enquiry by the Competent Authority under the Slum Areas Act when the landlord applied for permission to execute the order of eviction, and the tenant pleaded that the persons in whose favor he was alleged to have parted with possession or sublet were no longer in the shop and he himself was in possession and occupation of the shop. It is clear from the preamble to the Slum Areas Act that one of the purposes of the Act that is the protection of tenants in slum areas in the Union Territory from eviction. Section 19 of the Act, after its amendment by Act 43 of 1964 with effect from February 27, 1965, provides that notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the Competent Authority, execute a decree or order of eviction of a tenant where such decree or order was obtained in any suit or proceeding instituted before the aforesaid commencement of the amendment Act. The said provision clearly shows that even though a landlord had a cause of action for eviction of his tenant and had actually obtained a decree or order for eviction, and even though the decree or order is binding on the parties and the judgment operates as rest judicata, the said decree or order cannot be executed unless the Competent Authority grants permission.

(15) When an application for such permission is filed by the landlord, section 19(3) provides that Competent Authority, after giving an opportunity to the parties of being heard and after making such summary enquiry in the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. Section 19(4) provides that in granting or refusing to grant the permission under sub-section (3), the Competent Authority shall take into account, inter alia, the factor whether alternative accommodation within the means of the tenant would be available to him if he were evicted. The said provision assumes that the tenant is in possession of the premises in question at the time of the consideration of the application for permission to execute the order of eviction, and requires the Competent Authority to consider whether alternative accommodation within the means of the tenant would be available to him if he were evicted. But, if the landlord alleges in his application for eviction and establishes that the tenant had already alternative accommodation available to him, it is obvious that the question of the Competent Authority enquiring as to whether alternative accommodation within the means of the tenant would be available to him if he were evicted from the premises in dispute would not arise. Thus, a reading of the provisions in section 19 shows that in an application for permission under this section the Competent Authority has to ascertain the state of affairs at the time of the consideration of the application for permission. If on the evidence placed before it he finds that the tenant had already some alternative accommodation available to him, it need not go into the question of the means or financial status of the tenant and the availability of alternative accommodation within such means. What is important to be noted is that the Competent Authority should ascertain whether the tenant had alternative accommodation available to him on the date of the application for permission to execute the order of eviction or at any rate by the date of its order on the application.

(16) In the present case, the relevant portion of the order of the Competent Authority in the application for permission reads as under :-

'I have carefully gone through the records and have heard the parties at length. The only question for deter mination is whether the respondent if evicted, will create a slum. The respondent has, it has been held by the Rent Controller and the Tribunal, sublet the premises in dispute. The question of subletting cannot be re-agitated here. It has been finally adjudicated upon by the Controller and the Tribunal. I cannot sit in judgment upon them. The .. order of the Tribunal is final, so far as the question of subletting is concerned. Since the respondent is not in pos- session of the premises which is a shop, the question of his creating another slum does not arise. His status, thereforee, loses all its significance. It is only looked into when there is question of acquiring alternative premises and when the tenant is in possession of the premises regarding which permission is sought. In this case the respondent has been held to have sublet. thereforee, this question does not arise. This is a fit case where permission should be granted. I accordingly grant permission.'

(17) It is clear from the above order that the Competent Authority assumed that the tenant was not in possession of the shop in dispute on the date of its order by reason of the fact that it was held by the authorities under the Rent Control Act that the tenant had sublet the shop, and on the basis of that assumption that the tenant was not in possession of the shop in question on the date of its order, it held that the question as regards the means or financial status of the tenant, the availability of an alternative accommodation within such means, and his creating a slum if he were evicted did not arise. It is apparent that merely because the authorities under the Rent Control Act held that the shop was sublet by the tenant on an earlier date, it would not necessarily follow that he was not in possession or occupation of the shop on the date of the application for permission or the date of the order of the Competent Authority. It is possible that the tenant may have terminated the sub-tenancy and come back into possession of the premises. The Competent Authority failed to note and consider the case of the tenant that Suraj Parkash and Nanu Ram were no longer in the shop and that he was in occupation of the shop on the date of the application for permission. The Competent Authority further failed to note that it has also to consider whether alternative accommodation was available to the tenant within his means on the date of the application for permission or at any rate on the date of its order. It is only when alternative accommodation was already available to the tenant, the Competent Authority would be in a position to hold that the question as regards the financial status or means of the tenant, the availability of an alternative accommodation within his means, and his creating a slum if he were evicted does not arise. The Competent Authority seems to have felt that in view of the finding regarding subletting given by the authorities under the Rent Control Act, it need not go into the question of the availability of the alternative accommodation to the tenant within his means at the time of the consideration of the application for permission. The said approach was, in our opinion, entirely wrong in view of the provisions in sub-sections (1) and (4) of section 19 of the Rent Control Act. We, thereforee, agree with the contention of the learned counsel for the tenant that the learned single Judge ought to have held that the entire approach of the Competent Authority to the question for determination before it in the application under section 19 of the Slum Areas Act was a wrong one.

(18) The learned single Judge, while observing that it would depend entirely on the facts of a particular case whether the Competent Authority would take into consideration the change in the circumstances and the facts occurring after the termination of the eviction proceedings under the Rent Control Act, added that if the application for permission to execute the order of eviction is made a long time after the final order of eviction was passed and in the mean time the tenant had come back into possession of the premises and had continued therein for a substantially long time and had no alternative accommodation within his means, the Competent Authority may well be justified in giving due consideration to that fact, and that, on the other hand, if the application for permission to execute the order of eviction is made immediately after the termination of the eviction proceedings, the Competent Authority would be justified in holding that the said fact cannot be given any importance because the tenant could manage without the premises in dispute for a long time and, thereforee, did not need the premises at all for his own business, and that it cannot, thereforee, be said that he would have to find alternative accommodation within his means if he were evicted. The learned Judge also observed that in the present case there was a finding by the authorities under the Rent Control Act that the tenant was out of possession of the premises for seven or eight years, and, thereforee, the question of his needing alternative accommodation did not arise in the present case. As pointed out above, the Competent Authority has to consider and find the state of affairs as at the time of the consideration of the application for permission to execute the order of eviction. As observed by the learned single Judge, it is for the Competent Authority to take into consideration all the facts and circumstances and come to a conclusion regarding the state of affairs at the time of the consideration of the application for permission. But, what inference is to be drawn if the application for permission is filed immediately after the passing of the order for eviction, and what inference is to be drawn if the application for permission is filed long after the order for eviction, are all matters for consideration by the Competent Authority and no rigid or general proposition can be laid down for all cases. In the present case, the case of the tenant in his reply to the application for permission was that he was in possession and occupation of the shop in dispute on the date of the application, and that he was poor and no alternative accommodation would be available to him if he were evicted. As pointed out above, the Competent Authority did not consider the said case at all. It is for it to consider the same and the question of availability of alternative accomodation within the means of the tenant would depend upon the conclusion to which the Competent Authority comes to on such consideration. It is not for this Court to say anything about it at this stage. Shri Nayar sought to argue that a consideration of the various averments made by the tenant would show that his aforesaid pleas were not true. As already stated, they are all questions of fact which have to be considered by the Competent Authority.

(19) It is true that in an application under Articles 226 and 227 of the Constitution the High Court does not act as an appellate Court. But, when it is found that a Tribunal like the Competent Authority decided an application under section 19 of the Slum Areas Act on a wrong basis and the approach of the Authority to the question for determination in the application was not in accordance with the provisions of the statute, it is quite open to the High Court to exercise its supervisory jurisdiction under Article 227 of the Constitution and direct the Authority to re-consider the matter in the correct manner and in accordance with law.

(20) The learned single Judge observed that the tenant in the present case had already an alternative accommodation during the past seven or eight years in which he was carrying on though he was out of possession of the shop in dispute, and that there was no pleading by him that the said alternative accommodation was no longer available to him. As pointed out by us above, neither the Rent Controller nor the appellate Rent Control Tribunal had given any finding that the tenant had actually some alternative accommodation for carrying on his work. As stated already, it is entirely for the Competent Authority to consider all the circumstances and come to a conclusion as to whether the case put forward by the tenant regarding his possession and occupation of the shop in dispute on the date of the application for permission and thereafter was true or not.

(21) Shri Nayar referred to the decision in Batto Mat v. Rameshwar Nath 1970 R.C.R. 532. In that case, Hardayal D Hardy J. (as his lordship then was) and v.S. Deshpande J. considered (vide paragraph 25 and 26), inter alia, the question as to whether a case of action, after it has arisen in favor of a landlord for claiming eviction against his tenant under any of the provisions to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958, could be destroyed or defeated by some unilateral act of the tenant, and held that it could not be so destroyed or defeated. The said proposition however, has no bearing on the question in the present case which involves the provisions in section 19 of the Slum Areas Act. As explained already, the landlord might have a cause of action for the eviction of the tenant under one of the provisos to sub-section (1) of section 14 of the Delhi Rent Control Act, and he might file an application for eviction on the said cause of action and even obtain an order of eviction. The said order would, of course, be binding on the parties and would operate as rest judicata between the parties. But, when the landlord seeks to execute the order for eviction, a different statute, namely, the Slum Areas Act, begins to operate and prohibits the execution of the order for eviction unless and until permission for the execution is given by the Competent Authority in accordance with the provisions in the Slum Areas Act. On an interpretation of section 19 of the said Act, we have held above that the Competent Authority, in considering an application for permission to execute the order of eviction, has to consider whether the tenant has already some alternative accommodation at the time of the consideration of the application of the landlord for permission, and if he has not, to consider whether an alternative accommodation would be available to him within his means.

(22) There is no question of the tenant destroying or defeating the cause of action of the landlord. It is rather the statute viz. the Slum Areas Act, which, if at all, stands in the way of the execution of the order for eviction. The said statute operates by virtue of its own provisions. If by the time of the consideration of the application for permission the tenant has already alternative accommodation available to him, the Competent Authority grants permission to the landlord to execute the order of eviction by virtue of the provision in section 19 of the Act. If, on the other hand, the tenant has no such alternative accommodation by the time of the consideration of the application for permission, the Competent Authority, again by virtue of the provision in section 19 of the Act, has to consider whether alternative accommodation would be available to the tenant within his means. Thus, the two statutes viz. the Delhi Rent Control Act and the Slum Areas Act operate in different spheres. The decision in Batto Mal's case, which was concerned only with the provisions in the Delhi Rent Control Act, cannot, thereforee, be of any assistance to the learned counsel for the landlord.

(23) Shri Yogeshwar Dayal drew our attention to a judgment of v.S. Deshpande J. in Om Parkash v. Tej Narain and others, Civil Misc. (Main) No. 3 of 1967, pronounced on July 24, 1970 and pointed out an observation of the learned Judge characterising some of his own observations in the judgment under appeal before us (Madan Lal's case) as being obiter in nature in view of the decision in Batto Mals case (supra). Apart from the said observation of the learned Judge, we have expressed above our view regarding the scope and operation of the provisions in section 19 of the Slum Areas Act as well as the decision in Batto Mal's case (supra). It is, thereforee, not necessary to make any further comment on the observation pointed out by Shri Yogeshwar Dayal.

(24) For the foregoing reasons, we allow the Letters Patent Appeal, set aside the orders of the learned single Judge and the Competent Authority, and direct the Competent Authority under the Slum Areas Act to restore to its file the application for permission filed by the landlord, and decide the same afresh in the light of the observations in this judgment and in accordance with law. In the circumstances of the case, we direct the parties to bear their own costs throughout till the stage of this Letters Patent Appeal. We further direct the parties to appear before the Competent Authority under the Slum Areas Act on August 28, 1972.


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