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Sham Lal Vs. Joint Hindu Family Firm Ram Chand Shri Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberLetters Patent Appeal No. 111 of 1971
Judge
Reported inILR1972Delhi841
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19(1)
AppellantSham Lal
RespondentJoint Hindu Family Firm Ram Chand Shri Ram and ors.
Advocates: K.R. Gupta and; S.P. Mahajan, Advs.
Cases ReferredGhafoor v. Asa Ram
Excerpt:
(i) slums areas (improvement & clearance) act (1956) - section 19(1)(b) & slum areas (improvement & clearance) amendment act (1964), section 19(1)(b)--scope of--whether legal representatives of a statutory tenant entitled to protection against eviction granted by the above section.; that after the death of a statutory tenant, his legal representatives cannot claim any estate or interest in the property which was the subject-matter of the tenancy. it follows that they cannot claim the protection provided in clause (b) of sub-section (1) of section 19 of the slum areas amendment act. the use of the word 'tenant' in section 19(4)(a) shows that it is the extent of the means of the tenant to acquire alternative accommodation that has to be considered by the competent authority..........is not a building but land, and the same is situate in a slum area notified as such under the slum areas (improvement and clearance) act no. 96 of 1955 (hereinafter referred to as the 'slum areas act'). the decree-holders filed an application. no. 62 of 1964, on may 1, 1964, for the execution of the decree against mst. rama, the legal representative of the deceased original judgment- debtor. mst. rama contested the application and pleaded that the decree could not be executed without the previous permission in writing of the competent authority under section 19 of the slum areas act as amended by amendment act no. 43 of 1964. it was contended before the executing court on behalf of the decree holders that mst. rama was not a tenant and, as such, could not claim the protection of the.....
Judgment:

T.V.R. Tatachari, J.

(1) This Letters Patent Appeal has been filed by Sham Lal against the judgment of P. N. Khanna J., dated March 16, 1971, in Execution Second Appeal No. 107-D of 1966, whereby the learned Judge allowed the second appeal, set aside the judgments of the lower appellate Court and the trial Court dismissing an execution application, and restored the execution application for being further, proceeded with.

(2) One Mangia Kumhar was a tenant of a premises (land), and a joint Hindu family firm Ram Chand Siri Ram, of which Siri Ram was the Karta (Manager), was the landlord of the said land. The said landlords filed a suit, no. 394 of 1959, in the Court of the Senior Subordinate Judge, Delhi, for the eviction of the tenant, and the suit was decreed on May 25, 1960, by Shri H. S. Ahluwalia, Subordinate Judge First Class, Delhi. The appeal against the decree filed by the tenant was dismissed on July 19, 1961. The tenant Mangal Kumhar died some time thereafter leaving behind him his wife, Mst. Rama, as his legal representative. It is not in dispute that the premises in question is not a building but land, and the same is situate in a slum area notified as such under the Slum Areas (Improvement and Clearance) Act No. 96 of 1955 (hereinafter referred to as the 'Slum Areas Act'). The decree-holders filed an application. No. 62 of 1964, on May 1, 1964, for the execution of the decree against Mst. Rama, the legal representative of the deceased original judgment- debtor. Mst. Rama contested the application and pleaded that the decree could not be executed without the previous permission in writing of the Competent Authority under section 19 of the Slum Areas Act as amended by Amendment Act No. 43 of 1964. It was contended before the executing court on behalf of the decree holders that Mst. Rama was not a tenant and, as such, could not claim the protection of the Slum Areas Act, and that in any case since the amendment of section 19 of the Act had come into force after the decree had been passed, Mst. Rama was not entitled to claim the benefit of the amended section. The executing Court (Shri Prem Kumar Jain, Subordinate Judge Ii Class, Delhi) rejected the said contentions on behalf of the decree-holders, upheld the objection raised by Mst. Rama, and held that the execution application could be proceeded with without first obtaining the permission of the Competent Authority under the Slum Areas Act as amended by the Amendment Act No. 43 of 1964. Accordingly, the execution application was dismissed.

(3) Against the said order of the executing Court in the execution application, the decree-holders filed an appeal, R.C.A. No. 296 of 1965. By his judgment, dated November 16, 1965, Shri K. S. Sidhu, Senior Subordinate Judge, Delhi, dismissed the appeal. The decree-holders then preferred Execution Second Appeal, No. 107-D of 1966, to this Court. During the pendency of the second appeal, Mst. Rama died on September 21, 1968, and her legal representatives were brought on record as respondents 1 to 6. The second appeal was heard by P. N. Khanna, J. By his judgment, dated March 16, 1971, the learned Judge held that section 19 of the Slum Areas Act which affords protection to the tenant, provides no similar protection to his legal representatives, and that they cannot, thereforee, plead the provision in the section as a bar against their eviction. The learned Judge accordingly allowed the appeal, set aside the orders of the lower appellate Court and the trial Court, and restored the execution application for being further proceeded with. It is against the judgment of the learned single Judge that this Letters Patent Appeal has been filed by Sham Lal, one of the legal representatives of Mst. Rama. The two landlords are respondents 1 and 2, and the other legal representatives of Mst. Rama are respondents 3 to 7 in the appeal.

(4) The point for determination in this appeal is whether the legal representatives of the original tenant, i.e. Mst. Rama or the appellant and respondents 3 to 7, were entitled to claim the protection against eviction contained in section 19(1)(b) of the Slum Areas Act. Section 19, as it stood prior to its amendment in 1964, was as follows :-

19.'Tenants in slum areas not to be evicted without permission of the competent authority- (1) Notwithstanding anything contained in any other law for the time being in force, no person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the competent authority. (2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application the competent authority, after giving an opportunity to the tenant of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall A by order in writing either grant such permission or refuse to grant such permission. (4) Where the competent authority refuses to grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.'

(5) In the place of this section, a new section 19 was substituted by the Slum Areas (Improvement and Clearance) Amendment Act No. 43 of 1964, which came into force with effect from February 28, 1965. The new section reads as follows :-

'19.Proceedings for eviction of tenants not to be taken without permission of the competent authority- (1) 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- (a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order. (2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. (3) On receipt of such application, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. (4) In granting or refusing to grant the permision under sub-section (3), the competent authority shall take into account the following factors, namely: (a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; whether the eviction is in the interest of improvement and clearance of the slum areas; (e) such other factors, as may be prescribed. (5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.'

(6) It will be noticed that section 19(1), as it originally stood, prohibited the execution of a decree or order for the eviction of a tenant from a building in an area declared as slum area except with the previous permission of the Competent Authority. After the amendment, clause (a) of sub-section (1) of section 19 prohibits the very institution of a suit or proceeding for the eviction of a tenant except with the previous permission of the Competent Authority, and clause (b) of the said sub-section prohibits the execution of a decree or order obtained in any suit or proceeding instituted for the eviction of a tenant before the commencement of the Amendment Act, i.e. before February 28, 1965.

(7) The question in the present case is whether the protection against eviction provided in clause (b) is available only to a tenant or whether, in case the tenant dies, the protection is also available to the legal representatives of the tenant. In C. R. abrol v. Administrator under the Slum Areas and others 1970 R.C.R. 519, it has been held by a Division Bench of this Court (Hardayal Hardy and v. S. Deshpande JJ.) that the proceedings under section 19 can only be between a landlord and a tenant, that the exercise of his jurisdiction by the Competent Authority under section 19 depends on the fulfillment of the jurisdictional condition that the application under the section is made by a landlord for permission to evict a tenant, and that the Competent Authority is bound to make a preliminary inquiry into the existence of the relationship of landlord and tenant between the parties under section 19(1) with a view to be able to decide on the basis of such a preliminary inquiry whether the permission should be given to the landlord or not. In Bardu Ram v. Ram Chander 1970 R.C.R. 982, a Full Bench of this Court (H.R. Khanna, C.J., S. N. Andley, S. N. Shankar, v. S. Deshpande and v. D. Misra JJ.), held that the word 'tenant' in section 19 of the Slum Areas Act includes a person in occupation of a tenanted premises even though a decree or order for eviction has been obtained against him. The question, however, arises as to whether, if the tenant against whom such a decree was obtained dies, his legal representatives, who are in occupation of the tenanted premises, would be included in the expression 'tenant' as contemplated by the Slum Areas Act. The term 'tenant' has not been defined in the Slum Areas Act. A tenancy may be either contractual or statutory. In case of contractual tenancy, the estates of the Lesser and lessee (landlord and tenant) are estates of inheritance. If the tenant dies before the tenancy is terminated, his estate or interest in the property which is the subject matter of the tenancy, in the absence of anything to the contrary in the terms of the contract of tenancy, passes to his legal representatives vide Maharaja Tej Chund Behadur and Sri Kanth Ghose and others (1841-46) 3 M.T.A. 216(3), Gobind Lal Roy and Hamendra Narain Roy Chowdhry I.L.R (1890) Cal 686; and Mulla's Transfer of Property Act (Fifth Edition) page 641). But, in the case of statutory tenancy, i.e., where the tenancy has been terminated and the tenant, however, continues to be in occupation of the property by virtue of the provisions of a statute which prohibits his eviction vide abdul Ghafoor v. Asa Ram, 1971 R.C.R. 561) the statutory tenant has merely a personal right to protect his possession, and has no estate or interest in the premises or property occupied by him, as pointed out by the Supreme Court in Calcutta Credit Corporation Ltd. and another v. Happy Homes Private Ltd., : [1968]2SCR20 . thereforee, on the death of a statutory tenant, no estate or interest in the property passes to his legal representatives. Clause (b) of sub-section (1) of section 19 of the Slum Areas Amendment Act deals with a suit or proceeding instituted before February 28, 1965, for the eviction, of a tenant. Such a tenant is no doubt a tenant for the purposes of the Slum Areas Act as held by the Bench in Bardu Ram's case (supra), but he is only a statutory tenant as he, notwithstanding the decree or order of eviction, continues to be in possession of the property by virtue of the Delhi Rent Control Act, 1958, and the Slum Areas Act. Consequently, after the death of such a tenant, his legal representatives cannot claim any estate or interest in the property which was the subject matter of the tenancy. It follows that they cannot claim the protection provided in clause (b) of sub-section (1) of section 19 of the Slum Areas Amendment Act.

(8) We may also point out that sub-section (4) of section 19 prescribes the factors which the Competent Authority has to take into account when granting or refusing to grant the permission under sub-section (3) of the section. Clause (a) of sub-section (4) of section 19 provides that in granting or refusing to grant permission under sub-section (3) of the section, the Competent Authority shall take into account the factor whether alternative accommodation within the means of the 'tenant' would be available to him if he were evicted. The use of the word 'tenant' in the said provision shows that it is the extent of the means of the tenant to acquire alternative accommodation that has to be considered by the Competent Authority under sub-section (4) of section 19 and not the means of a person who is not a tenant. thereforee, if clause (b) of sub-section (1) of section 19 were to be interpreted as applicable to persons other than the tenant, viz. his legal representatives, there would be no provision in the section providing any guide-lines to the Competent Authority to consider the means of the said legal representatives of the tenant, as sub-section (4) does not provide for any such consideration of the means of persons other than the tenant. Thus, the provision in sub-section (4) supports the view that' the protection against eviction provided in caluse (b) of sub-section (1) of section 19 of the Slum Areas Act is available only to the tenant and not to his legal representatives.

(9) For the foregoing reasons, we agree with the view taken by the learned single Judge that the legal representatives of the deceased tenant MangalKumhar i.e., either Mst. Rama or the appellant and respondents 3 to 7, were not entitled to plead the provision in section 19(1)(b) as a bar against their eviction.

(10) The Letters Patent Appeal fails and is dismissed. But, in the circumstances, we make no order as to costs.

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