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Kirath Chand Vs. P.R. Varshneya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 79 of 1969
Judge
Reported in8(1972)DLT79
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19(4)
AppellantKirath Chand
RespondentP.R. Varshneya and ors.
Advocates: S.L. Sethi,; Ravinder Sethi,; S.L. Bhatia and;
Cases ReferredAli Hasan v. M. S. Shami and
Excerpt:
.....creating another slum elsewhere - held, order of competent authority liable to be quashed. - - regarding this aspect it was mentioned in the affidavit of the tenant shri kirath chand that the wife of dharam prakash had ceased to be a partner, in the said business being unsuccessful; ' (5) it is worth recalling that shri shant parkash as well as his father had admitted that his monthly income was rs. (6) in an order, which can only be described as unsatisfactory, the competent authority has come to the following conclusion :from the evidence on record, i am satisfied that the income of the respondent's family including that of his sons and son's wife comes to more than rs......for evicting the tenant. the further facts are that the tenant had two sons dharam prakash and shant prakash both of whom had married and had children; the tenant himself, who is 80 years old, had not been doing any business for about ten years. this fact was not controverter. according to the affidavit of shri hundi lal, one of the landlords, the tenant, his wife. two sons, one daughter, two daughters-in-law and six grand children live in the premises. of them, dharam prakash (son) is a sanitary inspector drawing about rs. 400.00 per month. this fact also is not disputed. his wife was stated to be a partner in a firm known as messrs. kapil electricals, dariba kalan, delhi; her share of profit from this concern was said to be about rs. 600.00 per month. she is alleged to have.....
Judgment:

S. Rangarajan, J.

(1) Under the impugned order dated 2nd September 1969, the Competent Authority granted permission to the respondents (landlords) to evict the petitioner (tenant) under section 19(4) of the Slum Areas (Improvement and Clearance) Act 1956. Sub-section (4) of section 19 of the Act requires that the competent authority shall take into account the following factors, while granting or refusing to grant permission :-

(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; (c) such other factors, if any, as may be prescribed.

(2) The property bearing Municipal No. 2678, Gali Anarwali, Kinari Bazar, Delhi, which was previously owned by Raj Dulari, had been let out to the petitioner giving him a right to live in a portion of the said house and to sub-let the remaining portions. Shrimati Raj Dulari sold the said house to the respondents on 8th March 1956. Since the respondents required the house for their own occupation the tenant surrendered the rest of the portions other than a room on the second floor of the said house. In respect of the said room there was a fresh tenancy from respondents 2 to 7 at Rs. 15.00 P.M., on the terms and conditions mentioned in the lease deed dated 24th May 1956. It was agreed between the parties that when the landlords delivered possession of a room and a kitchen on the first floor plus a tin-shed on the third floor to the tenant the latter would exchange the tenancy of the said room with the portion so delivered to him. In accordance with this arrangement the tenant surrendered the aforesaid room on the second floor and got a room and a kitchen on the first floor Along with a tin shed on the third floor, for a monthly rent of Rs. 21.00. In respect of this an agreement (translation of which is Annexure A to the writ petition) was entered into on 24th May 1959.

'The landlords later on moved an application before the Competent Authority for evicting the tenant. The further facts are that the tenant had two sons Dharam Prakash and Shant Prakash both of whom had married and had children; the tenant himself, who is 80 years old, had not been doing any business for about ten years. This fact was not controverter. According to the affidavit of Shri Hundi Lal, one of the landlords, the tenant, his wife. two sons, one daughter, two daughters-in-law and six grand children live in the premises. Of them, Dharam Prakash (son) is a Sanitary Inspector drawing about Rs. 400.00 per month. This fact also is not disputed. His wife was stated to be a partner in a firm known as Messrs. Kapil Electricals, Dariba Kalan, Delhi; her share of profit from this concern was said to be about Rs. 600.00 per month. She is alleged to have invested 'thousands of rupees' in the said firm. It was further stated that there was a huge stock of goods therein. Regarding this aspect it was mentioned in the affidavit of the tenant Shri Kirath Chand that the wife of Dharam Prakash had ceased to be a partner, in the said business being unsuccessful; the total amount of investment therein was only Rs. 3500.00. The other son (Shri Shant Prakash) was stated to be doing business under the name and style of M/s. Jainson Traders, supplying electrical, stationery, and plastic goods. The monthly income of the said Shant Prakash from this business was only Rs. 500.00. In the father's affidavit the fact of his doing business under the name of M/s. Jainson Traders was admitted, but it was. stated that the monthly income was only Rs. 250.00.

(3) It was also stated in the affidavit of Shri Hundi Lal that Shant Prakash was a partner in the firm Messrs. Shanti Lal & brothers, Dariba Kalan, Delhi, and out of the business of distribution of copper and enameled wire Shant Prakash was getting Rs. 1500.00 per month as his share of profit from this firm. The fact that Shant Prakash was a partner in the firm Shanti Lal & Brothers was itself denied in the affidavits of the tenant (Kirath Chand) and also of Shant Prakash.

(4) It was further stated in the affidavit of Shri Hundi Lal that Shant Parkash was doing the work of film distribution in Delhi and was sometimes releasing his own pictures in the standard cinema halls of Delhi. The monthly income from this business was stated to be Rs. 1500.00. With reference to this allegation it was denied in the affidavit of Shri Kirath Chand that Shant Prakash was earning Rs. 1500.00 per month. It was admitted that he along with a friend had twice or thrice taken or hire old prints of a picture and run it in the morning shows, but that picture did not prove profitable. It was still further asserted that all the films distributors in Delhi are members of the Motion Pictures Association but Shant Prakash was not a member thereof. In the affidavit filed by Shant Prakash concerning this aspect he swore as follows :-

'THATI along with one of my friends have a few times taken on hire prints of old pictures for exhibition in morning shows, but the said ventures have not been successful and the income has only been sufficient to meet the expenses. That I do not carry on distribution business and with difficulty able to make my both ends meet from my income.'

(5) It is worth recalling that Shri Shant Parkash as well as his father had admitted that his monthly income was Rs. 250.00 from the business of Jainson Traders.

(6) In an order, which can only be described as unsatisfactory, the Competent Authority has come to the following conclusion :-

'From the evidence on record, I am satisfied that the income of the respondent's family including that of his sons and son's wife comes to more than Rs. 2500.00 P.M. which is quite sufficient to maintain a family of 13 members and to enable the respondent to arrange for an alternative accommodation within his means.'

(7) The wife of Dharam Prakash was a partner of Messrs Kapil Electricals and got Rs. 600.00 per month. This decision was based upon the non-production of the deed of dissolution of the partnership and absence of affidavits of the partners of the said firm or even of the wife of Shri Dharam Prakash. In these circumstances the Competent Authority's finding, as a fact, that the wife of Dharam Parkash was earning Rs. 600.00 cannot be assailed in this writ petition.

(8) Regarding the income of Rs. 250.00 P.M. from the business carried on under the name and style of M/s. Jainson Traders, which was admitted by the tenant, the competent Authority had obviously excluded it from consideration and for no reason.

(9) Regarding the wire distribution business the alleged income is Rs. 1500.00 per month (earned by Shri Shant Parkash) from the business of copper enameled wire which is carried on by Messrs. Shanti Lal & Brothers. The Competent Authority has obviously not found the allegation of the landlords to be true; if it had, it would have taken it also into consideration. From the fact that the same has been left out by the Competent Authority it is a fair inference that the Competent Authority did not accept the allegation of the landlord in his regard.

(10) Regarding the film business it would be necessary to set out what the Competent Authority had to say in its own words :-

'The respondent has not disclosed the income from the business of film distributing work done by his another son Shant Parkash who (Shant Parkash) simply says that the income has only been sufficient to meet the expenses. This is a vague deposition. His contention that he does not carry on the work of film distributing business is also not convincing, as he has not filed the affidavit of one of his friends with whom he is carrying on this business. Curiously enough, the father denies that his son has an income of Rs. 1500.00 P.M. whereas the son is silent about it. He does not dare to deny it specifically.'

(11) Adding Rs. 1500.00 on the above score of film business to Rs. 400.00, being the salary of Dharam Parkash, and Rs. 600.00 the income by the daughter-in-law the Competent Authority arrived at the figure of Rs. 2500.00. It found that the income which came to more than Rs. 2500.00 per month' was quite sufficient to maintain a family of 13 members and to enable the respondent to arrange for an alternative accommodation within his means.

(12) The first point, which was urged on behalf of the petitioner, is that under section 19(4) of the Slum Areas (Improvement and Clearance) Act 1956 the means of the tenant alone could be taken into account and not of others who were living with him. Adverting to a similar argument Deshpande J. observed in Saiduddin v. Mahabir Singh (Civil Writ Petition No. 600 of 1970) decided on 27th November 1970(1), as follows :-

'On the side of the petitioner, it may be urged that the tenant as such was a retired person without any pension. He had thus no income of himself at all. Ordinarily, it is his own income which must be taken into account in considering whether he had the means to find alternative accommodation, if evicted. As he had no income at all the obvious answer should be that he was not in a position to find alternative accommodation, if evicted.'

(13) The same is the position here in this case also. Deshpande J. then proceeded in the above case to consider the alternative argument whether even if the income of the members of his family was taken into account that would justify the grant of permission to evict. In the present case also the income of the daughter-in-law, assuming it is Rs. 600.00per month, as found by the Competent Authority, could not be taken into consideration as the income of the tenant, especially in the absence of any material to suggest that the return got by her was as the result of any investment made by her husband or father-in-law. Shri S. L. Bhatia. learned counsel for the landlords, was unable to cite any authority or principle in support of the position that the same could be taken into account by the Competent Authority under section 19(4).

(14) It was urged that the finding reached by the Competent Authority that Shant Parkash earned Rs. 1500.00 a month from the film business was opposed to the record and due to misreading the evidence.

(15) The passage from the order which has been extracted above shows that the Competent Authority proceeded on the wrong assumption that the father alone had denied that the income of his son Shant Parkash was Rs. 1500.00 P.M. and that the son Shant Parkash was silent about it. The further observation, that the son did not dare to deny it specifically is opposed to the record. It is no doubt true that the Competent Authority had also referred to the absence of an affidavit from the other person, with whom Shant Parkash is alleged to have carried on the said business. If the matter had rested here it might have been different. But the Competent Authority went further to state that Shant Prakash was silent regarding the income from the film business; this shows that the Competent Authority had not either read. or read carefully, the affidavit of Shant Parkash.

(16) In May 1956 the tenant had surrendered all the other portions except one room in the second floor; the rent was Rs. 15.00 P.M. That was all the tenant could afford to pay then; this was enhanced to only Rs.. 21.00 P.M. in 1959, when the portions were exchanged and the tenant got a slightly larger extent. This has, without doubt, an. important bearing upon the status (means to find alternative accommodation) of the tenant.

(17) It is also seen that in the affidavit filed by Shri Hundi Lal, one of the landlords, he had been guilty of gross-exaggerations; no other affidavit filed for the landlords. His own statement that there was another business of distribution of enameled wire which yielded an income of Rs. 1500.00 to Shant Parkash was not even sought to be substantiated before the Competent Authority. With reference to the film business, an affidavit of the father is that his son (Shant Parkash) had only taken two or three pictures for exhibition. It was not, as the Competent Authority thought, a case of his mere denial of Shant Parkash getting Rs. 1500.00 P.M. The finding is. thereforee. vitiated by the view, which is contrary to the record, that the son was silent about the income from the film business. The son had stated that he had only taken on hire old prints on a few occasions for exhibition in morning shows and that the income was only sufficient to meet the expenses.

(18) The test which was adopted by Viscount Simonds in Edwards v. Bairstow 1956 A.C, 14 (2) was that though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are fairly summarized by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the tracts which could not reasonably be entertained. This case has been referred to by V. S. Deshpande J. who has set out some of the observations of Lord Radcliffe; those at page 36 are important and may be set out again :

'I do not think that inferences drawn from other facts are incapable of being themselves findings of fact, although there is value in the distinction between primary facts and inferences drawn from them. When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex fade which is had law and which bears upon the determination, it is, obviously, erroneous in point of law.'

(19) Deshpande J. has also referred to the observations of Lord Denning Lj in Brace girdle v. Oxey (1947) I Kb 349(1955) 71 LQ R 402 making a distinction between the primary and secondary facts. The distinction, as pointed out by the latter, is one between the perception of facts and the evaluation of facts. The former observed that a Court will interefere it the conclusion of the Tribunal could not reasonably be drawn from primary facts. In other words, if the conclusion drawn from primary facts is one which cannot be drawn from them, there is scope for judicial review in such a situation.

(20) Mr. S. L. Sethi drew my attention to the decision of Ismail 3. in Ali Hasan v. M. S. Shami and another 1967 Dlt 681(4) holding that where the finding of the Competent Authority is not supported by any record but is contrary to the evidence available on the record. the finding cannot be allowed to stand.

(21) The result of the above analysis, is that Rs. 1500.00 per month. Stated to be the income of Shant Parkash from the film business, could not be taken into account because the finding has been arrived at by misreading the evidence; Rs. 400.00 a month earned by Dharam Parkash plus Rs. 250.00, earned by Shant Parkash from the business under the name and style of M/s. Jainson Traders, would obviously be just enough for the family of the tenant-in any case, it cannot support the inference that alternative accommodation was within the means of the tenant to find without creating another slum elsewhere.

(22) In the result the order of the Competent Authority is quashed: this petition is accepted but in the circumstances without costs.


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