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Niamat Bi Vs. S.L. Dhani Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 460 of 1969
Judge
Reported in1974RLR413
ActsSlum Areas (I & C) Act, 1956 - Sections 19; Constitution of India - Article 226
AppellantNiamat Bi
RespondentS.L. Dhani Etc.
Advocates: S.L. Bhatia and; Vijay Kishan, Advs
Cases ReferredZora Singh v. J. M. Tandon and
Excerpt:
.....order is liable to be set aside not only because it is based on no evidence but also because the competent authority has failed to take into consideration the purport and scheme of the act and has deliberately passed an order which is at variance with the right created in a tenant to retain the premises if the eviction is not in the interest of clearance of slums. ) (6) the jurisdiction of the court under article 226 of the constitution is now well- settled. there cannot be any dispute that if the order is based on no evidence or is contrary to the principles of natural justice or there is some manifest error of law, then the order complained against can be set aside. (8) on examination of the order of the competent authority it is apparent that the financial status of the petitioner..........all along in the said premises with her son. in a rejoinder filed by respondent no. 2 before the competent authority it was stated that the petitioner's husband had died in 1947 and thereafter she had re-married and her husband was running a flourishing business in karachi where she had lived with her husband. it was also said that her son manufactured suit-cases and earned not less than rs. 200.00 per month, that one of her brothers was earning not less than rs. 500.00 per month from a shop at motia khan in which the business of dealing in motor-tyres was conducted. it was also averred that yet another brother was running a business in bara hindu rao and earning rs. 500.00 per month and that while the petitioner was away to karachi the said premises were in occupation of persons other.....
Judgment:

Prakash Narain, J.

(1) By this petition under Article 226 of the Constitution of India the petitioner challenges order dated May 3, 1969 (Annexure A to the petition) passed by the Competent Authority under the Slum Areas (Improvement , Clearance) Act, 1956, hereinafter called 'the Act'.

(2) Ganga Bishan, respondent No. 2, filed .an application under section 19 of the Act for permission to institute proceedings for obtaining a decree or order of eviction against the petitioner from House No. 6832, Ahata Kidara, Bara Hindu Rao, Delhi on the ground of sub-letting, personal bona fide requirement and non-residence of the petitioner or any other member of her family in the said premises for more than six months. The petitioner contested this application. She admitted the relationship of landlord and tenant but: denied the existence of any valid ground for eviction. Regarding her alleged non-residence in the said premises it was stated that she had gone to Karachi on June 5, 1965 and had returned there from on December 27, 1965 but otherwise has been residing all along in the said premises with her son. In a rejoinder filed by respondent No. 2 before the Competent Authority it was stated that the petitioner's husband had died in 1947 and thereafter she had re-married and her husband was running a flourishing business in Karachi where she had lived with her husband. It was also said that her son manufactured suit-cases and earned not less than Rs. 200.00 per month, that one of her brothers was earning not less than Rs. 500.00 per month from a shop at Motia Khan in which the business of dealing in motor-tyres was conducted. It was also averred that yet another brother was running a business in Bara Hindu Rao and earning Rs. 500.00 per month and that while the petitioner was away to Karachi the said premises were in occupation of persons other than herself or members of her family. The petitioner filed affidavits of Sheikh Mohd. Swalhin, Azmat Khan, Barudin alias Baboo, Mohd Ashqin, Aslamuddin besides her own. She produced her passport and the passenger's coupon issued by Boac and some other papers. Regarding her financial status it was stated that she earned Rs. 15.00 per month. Her son's income was given as Rs. 60.00 per month and it was stated that he was employed with one Mohd. Faruq.

(3) On the above evidence the Competent Authority held that the petitioner was a person of substantial means, particularly, as she could afford to go to Pakistan by air and live there for six months. It was also held that she had re-married and her husband was running a flourishing business at Karachi. In this view of the matter permission was granted to respondent No. 2 to take eviction proceedings against the petitioner.

(4) It has been contended/on behalf of the petitioner that the impugned order is liable to be set aside not only because it is based on no evidence but also because the Competent Authority has failed to take into consideration the purport and scheme of the Act and has deliberately passed an order which is at variance With the right created in a tenant to retain the premises if the eviction is not in the interest of clearance of slums.

(5) On behalf of respondent No. 2 it has been contended that section 19 of the Act imposes a restriction on the landlord but does not create a right in the tenant. This can be further gauged from the legislative intent Competent which postulates that if permission is refused fiancial reasons must be given but no reason need be given for granting the permission to start a eviction proceedis as an appeal is provided for from an order refusing permission but no appeal is contemplated from an order granting permission. It has also been urged that once the eviction petition has been filed the validity of the permission granted cannot be agitated in a writ court and inasmuch as in the present case the eviction proceedings have been commenced the present petition has become infructuous. On merits it has been contended on behalf of respondent No. 2 that the proceedings contemplated by section 19 of the Act are summary proceedings and if the view taken is a possible view there should be no interference on the writ side. Even if the finding is erroneous a writ court cannot interfere for the jurisdiction to be exercised under Article 226 of the Constitution is rather limited. (In paras 6&7 1967 P.L.R. 139 : 1969 R.C.R. 328 are distinguished.)

(6) The jurisdiction of the court under Article 226 of the Constitution is now well- settled. There cannot be any dispute that if the order is based on no evidence or is contrary to the principles of natural justice or there is some manifest error of law, then the order complained against can be set aside. Mr. Vijay Kishairs reliance on Syed Yakoob v. K.S..Radhakrishnan and others 1964 S.C. 477 does not help him.

(7) It is true, as was laid down by S. N. Shankar, J. in C.M. (Main) 6 of 1971 decided on March 26, 1971, Kapur Chand v. Gopal Singh, that. the High Court should interfere only if there is any illegality in the order of the Competent Authority which causes substantial injustice. So, what one has to see is whether there is any illegality in the order and whether such illegality causes substantial : injustice. It cannot be disputed that if the order is based on no evidence or, is based on inferences which are not justified by the evidence on record the order would be illegal and would cause substantial injustice inasmuch as proceedings. which could Otherwise not be started against the tenant would be taken to evict him.

(8) On examination of the order of the Competent Authority it is apparent that the financial status of the petitioner has been adjudged to be good and she has been held to be a person of substantial means on the following grounds : (a) that she travelled by air to Pakistan and lived there for six months, (b) that she has not denied the allegations of respondent No. 2 that she had re-married and her husband had a flourishing business at Karachi, (c) that her affidavit to the effect that her income was Rs. 15.00 per month could not be believed in view of her travel by air to Pakistan ; (d) that the affidavit of the employer of the son has not been filed to establish that his salary was only Rs. 60.00 per month.

(9) Looking at the affidavit filed before the Competent Authority I find that the conclusions are not correct and so, can be held to be conclusions based on no evidence. The petitioner had categorically stated in paragraph 1 of her affidavit before the Competent Authority (Annexure C to the petition) that her husband was murdered in 1947 and she had not married since then. She had categorically stated that she was not in a position to afford any other premises and could only afford the present premises on a monthly rent of Rs. 6.00 and if she was evicted she was likely to create slum. Regarding her visit to Pakistan she had stated in the affidavit that she went there with her son to attend the marriage of her brother's daughter. She had to stay on for six months because war had broken out between India and Pakistan... She had categorically denied in para 8 of the affidavit that she had a husband in Karachi. Her affidavit was supported by several other affidavits including those of her neighbours. In view of all this evidence on affidavits the mere fact of the petitioner having. gone to Pakistan by air cannot lead to reasonable inference that she must be a lady of means to afford an air passage. How that passage was arranged, from where she got the money to buy an air ticket are all facts on which there is no evidence.

(10) Mr. Vijay Kishan urged that at least. the fact of the air travel is clear and so, if the Competent Authority even on one reason came to the conclusion that the petitioner was a lady of means his order should not be set aside. It was referred to Zora Singh v. J. M. Tandon and others, : AIR1971SC1537 in support of this proposition. The decision does not help the learned counsel. As was observed by the Supreme Court : 'The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. Bat is a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the. Tribunal, even if some of it was irrelevant, a Superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the Superior Court does not sit in appeal but exercises only supervisory jurisdiction, and, thereforee, does not enter into the question of sufficiency of evidence......' It cannot be said that the decision of the Competent Authority was on his subjective satisfaction. There was no legal evidence available for the Competent Authority to come to the conclusion that it did and mere inference from certain documents produced on the record would not be establishing of primary facts necessary for coming to an, objective decision. Petition Accepted.


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