T.V.R. Tatachari, J.
(1) This petition has been filed by a tenant, 0m Parkash, under Article 227 of the Constitution of India, against an order of the Financial Commissioner, Delhi (Annexure H), dated 2nd April, 1970, whereby the Financial Commissioner set aside an order of the Competent Authority under Slum Areas (Improvement and Clearance) Act, 1956, passed on 28th August, 1959 and granted permission to the landlord to proceed with the execution of a decree for eviction obtained against the tenant
(2) The petitioner, 0m Parkash, is a tenant under respondent 1, Lachhman Dass, in respect of a bullding bearing Municipal No. 6894, Gali Mian Sahib, Beriwala Bagh, Ward No. Xiii, Delhi-6, on a monthly rent of Rs. 3.00. Respondent 1 filed eviction proceedings against the petitioner under clause (e) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act (59 of 1958) and obtained an order of eviction in respect of the aforesaid premises. On 7th June, 1967, respondent 1, applied to the Competent Authority, Slum Areas (Improvement and Clearance) Act, Delhi, under section 19 of the said Act, for permission to execute the aforesaid eviction order against the petitioner. The petitioner contested the application and pleaded that he was a very poor illiterate man, that he was plying a Rehra (cart) and getting about Rs. 3.25 paise daily, that he had to support his family consisting of four members with that meagre income, and that he was not thus in a position to acquire any alternative accommodation, and would, thereforee, create a slum in case he is evicted.
(3) Respondent 1 filed only his own affidavit, dated 7th November, 1967 (Annexure A) in support of his case. He stated in that affidavit, inter aha, that the petitioner and his mother Bhag Wanti were recorded in the voters list as residing in one house at Seriall No. 522 and 524, that the wife of the petitioner was recorded in the said voter list at Seriall No. 523, that ration card No. 1398568 showed that the mother of the petitioner was a member of the petitioner's family, that from the claims left by the petitioner's father, a house, No. F-79. at Garhi in Lajpat Nagar, New Delhi, was purchased in the name of the petitioner's mother, and the same was let out on a rent of Rs. 45.00 per month, that a plot of land was purchased by the petitioner in Mahabir Nagar near Tilak Nagar for Rs. 3,000.00, and that the petitioner owned a Rehra and a horse which he disposed off about six months ago at Rs. 600.00 and has since been working with one Prem Nath at Rs. 6.00 per day.
(4) In rebuttal, the petitioner filed affidavits of himself, and Sarvshri Walati Ram, Gulcharan Dass, Lal Chand and Prem Nath (Annexures B, C, D, E, and F respectively), all of them dated 16th January, 1968. Sarvshri Walati Ram, Gulcharan Dass, Lal Chand and Prem Nath stated in their respective affidavits that the petitioner had been plying Rehra and had not been getting more than Rs. 100-/ per month. They also averred that the petitioner did not own any of the properties mentioned by respondent I, that the petitioner's mother was not living with him for the last 15 years or so, as they were not on good terms, that she had been living separately from the petitioner since 1953 at Garhi, Lajpat Nagar, New Delhi, and was not dependent upon the petitioner, and that the petitioner had a family of four members to support with his meagre income.
(5) By his order, dated 28th August, 1959 (Annexure G), Shri D.K. Poddar, Competent Authority (S). accepted the averments in the affidavits filed on behalf of the petitioner, and held that he was a poorman earning about Rs. 100.00 per month and will definitely create a further slum in case he is allowed to be evicted. As regards the alleged house in Lajpat Nagar, the Competent Officer held that in view of the Ration Cards produced in the case it appeared that the petitioner was previously living together with his mother but that his mother has now started living at Lajpat Nagar where she has got her own Ration Card, and the petitioner is living in the premises in dispute and has separate Ration Card for his family. He accepted the Explanationn given by the petitioner that the petitioner's mother was living separ itely and making. her own earning, and that she was not on good terms with the petitioner. The Competent Authority observed that he could not grant the permission to respondent 1 merely because the petitioner's mother has a house of her own. In the result, he dismissed the application filed by respondent 1.
(6) Against that order, respondent 1 preferred an appeal to the Financial Commissioner, Delhi, under section 20 of the Slum Areas. (Improvement and Clearance) Act. In his order, dated 2nd April, 1970, the Financial Commissioner pointed out (1) that the photo-stat copy of the Ration Card indicates that it covered five persons, viz. the petitioner bids wife, his mother, Bhag Wanti Devi, and two children, and the Ration Card has been effective till December, 1967; (2) that it has, thereforee, to be presumed that the mother was living with the petitioner in the premises in question till December, 1967; (3) that another Ration Card issued in favor of Shrimati Bhagwanti Devi, resident of 78, Amrit Puri, Garhi, New Delhi, with effect from 11th June, 1968, shows that Shrimati Bhagwanti Devi shifted to the new premises only in June, 1968, and not in December, 1967; (4) that a perusal of the voters' list for 1966 shows the name of Bhagwanti Devi at S. No. 84, and as staying at the premises in question; (5) that Shrimati Bhagwaati Devi was living with the petitioner at least up to December, 1967, and her shifting to the new premises acquired in her name was not because of any animosity between her and her son but was just to defeat the implementation of the decree; (6) that the premises at 8, Amritpuri Garhi, is more spacious than the premises in question, the former being 50 sq. yards and the letter being 10 square yards and (7) that the petitioner has thus alternative joint accommodation at 78, Amritpuri, Garhi. In that view, the Financial Commissioner, concluded that the petitioner was not entitled to any protection under the Slum Areas (Improvement and Clearance) Act He accordingly accepted the appeal, set aside the order of the Competent Authority and granted permission to respondent 1 for the execution of the order for eviction against the petitioner. It is against the said appellate order of the Financial Commissioner that the petitioner Om Parkash has filed the present petition under Article 227 of the Constitution of India.
(7) Shri Vijay Kishan, learned counsel for the petitioner, contended that the various factors relied upon by the Financial Commissioner were all irrelevant for the purpose of section 19(4) of the Slum Areas (Improvement and Clearance) Act, that he erred in taking the mother's house into consideration as the petitioner had no right to claim residence in the said house which belonged to the mother, and that the Financial Commissioner failed to record a finding regarding the means available to the petitioner, and consequently the conclusion of the Financial Commissioner that the petitioner has alternative accommodation and would not, thereforee, create any slum in case be is evicted in execution of the eviction order, was erroneous, contrary to law and not borne out by the evidence on record.
(8) There is considerable force in the contention of the learned counsel for the petitioner. For granting or refusing to grant the permission to execute an order of eviction, the important factor that has to be taken into consideration under section 19(4) of the Slum Areas Act is whether alternative accommodation within the means of the tenant would be available to him if he were evicted. It is necessary that the Competent Authority should address himself to the question of the means of the tenant and determine the same on the evidence placed before him. In the present case the Competent Authority, on aconsideration of the evidence placed by the parties before him gave a finding that the petitioner is a poor man earning about Rs. 100/- P.M. and will definitely create a slum in case he is allowed to be evicted. The said finding was clearly borne out by the affidavits filed on behalf of the tenant. It is also clear from the evidence on record that the petitioner has to support himself, his wife, and two children with the sum of Rs. 100/- which is found to be his income per month. It is obvious that the income of Rs 100/- per month would be hardly sufficient for the maintenance of the petitioner and his family, and it cannot be said that alternative accommodation within his means would be available to him if he were evicted.
(9) The aFinancial Commissioner did not address himself at all to the finding of the competent Authority about the means of the petitioner. He proceeded on the footing that the petitioner's mother stayed with him till June, 1968, and shifted to the house at Garhi, Lajpat Nagar, and that the said hause was available to the petitioner for joint accommodation with his mother. The Financial Commissioner assumed that the petitioner has a right to reside in the aforesaid house with his mother. Respondent I merely alleged in his affidavit that with the claims left by the petitioner's father the house was purchased in the name of the petitioner's mother, but the petitioner averred in his affidavit that the aforesaid house was not purchased in the name of his mother from out of the claims left by his father, that it was purchased by his mother with her personal income derived frem her working as a mayee (maid-servant), and that he had no right to or interest in the said house. He also filed the affidavits of a number of persons in which it was averred that the petitioner had no house in Gahari, Lajpat Nagar, that the mother has been living in the said house in Garhi, and that she has her separate source of income. The Competent Authority acecpted the version of the petitioner and observed that permission to evict the petitioner could not be granted on the ground that his mother has got a house of her own and that the petitioner can shift there. Though respondent I alleged in his affidavit that the house was purchased from out of the claims left by the petitioner's father, he did not adduce any evidence in support thereof. On the other hand, such evidence as was adduced by the petitioner goes to show that the house belonged to his mother, and that he had no right to or interest in the said house. It may be pointed out here that respondent I has filed a copy of the application filed by him before the Rent Controller for eviction as Annexure B to his reply in opposition to the petition under Article 227 of the Constitution. In paragraph 10 of the said application, respondent 1 set out the grounds on which he sought the eviction of the petitioner Ons of the grounds was that the petitioner had been allotted a quarter by the Managing Officer Rehabilitation, but by mischief the petitioner got it transferred in the name of his mother, though she has been depending upon him and has been living with him, and that since the petitioner had his own suitable accommodation he was liable to be evicted. The said ground was denied by the petitioner in the written statement, a copy of which has been filed as Annexure C to the reply of respondent 1. Shri Vijay Kishan stated that the said plea of respondent I was negatived by the Controller, the Tribunal on appeal, and the High Court in Second Appeal, but the copies of the orders of the Controller, Tribunal, and the High Court have not been filed. However, a copy of sale deed has been field as Annexure I to the said reply of respondent 1. It shows that the house in question was sold to Shrimati Bhagwanti by one Shri Jai Ram Dass and the sale deed was dated 20th September, 1962. Thus, the fact remains that the sale deed for the house stands in the name of Shrimati Bhagwanti and the petitioner has no right to or interest in the same. Repondent 1 has got placed no material on record to show that the petitioner has any right to or interest in the said house.
(10) Before it can be said that the house is available to the petitioner for joint accommodation with his mother it is necessary that he should have some legal right to be accommodated in that house. Even if the mother had stayed with the son till June, 1968, and then shifted to her house, it does not follow that the petitioner has a right to be accommodated in that house along with the mother. The mother might be inclined to accommodate him for some time out of her natural love and affection for him, but the accommodation would be only permissive, and the petitioner cannot claim to be continued to be accommodated in case any differences arise between him and his mother. When he has no right to be accommodated, the house cannot be taken as being available to him for his accommodation for the purpose of section 19(4) of the Slum Areas Act.
(11) Thus, the order of the Financial Commissioner is vitiated by his assumption without any basis that the petitioner was entitled to joint accommodation in the house in Garhi, Lajpat Nagar, along with his mother. The order is also vitiated by his omission to take into consideration the means of the petitioner which is a material factor to be taken into consideration, under section 19(4) of the Act. As already stated, the petitioner has been found by the Competent Authority to be a man of poor means and will not be able to acquire an alternative accommodation within his means and he will definitely create a slum in case he is allowed to be evicted The order of the Financial Commissioner cannot, thereforee, besustained.
(12) For the foregoing reasons, the petition, C.M. (Main) No.47 of 1970, is allowed, the order of the Financial Commissioner, dated 2nd April, 1970, is set aside, and the application under section 19 of the Slum Areas (Improvement and Clearance) Act for permission to execute the order of eviction against the petitioner is dismissed, in the circumstances, the parties are directed to bear their own costs in this petition.