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Abdul Haq Vs. Hafiz Abdul Rashid - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 121 of 1972
Judge
Reported inAIR1975Delhi13; 1974RLR177
ActsSlum Areas Act, 1956 - Sections 19
AppellantAbdul Haq
RespondentHafiz Abdul Rashid
Advocates: Swatantar Kumar,; Vijay Kishan and; V.M. Issar, Advs
Excerpt:
.....to show that the tenant would have to pay alone to find alternative accommodation then in those circumstences it could not be said that the tenant was not in possession, of sufficient means to find alternative accommodation if..........ud-din v. mahabir singh 1971 delhi 210 did not go into the question .whether the income of the family members could be taken into . consideration in determing the means of the tenant as it was found that the tenant who had no income of his own but whose family of 3 members had an income of rs.725.00 per month would not be able to find alternative accommodation within that income if evicted. in another case mani ram v. ram lal (c.w. (main no 41 of 1971 decided on 22.7.1971), the same learned judge took the view that where a tenant was living as a member of a joint family along with his well-to-do sons and if there was nothing to show that the tenant would have to pay alone to find alternative accommodation then in those circumstences it could not be said that the tenant was not in.....
Judgment:

Jagjit Singh, J.

(1) During hearing of petition U/Art. 227 of the Constitution following question was referred to a D.B. by Single Judge :-

'WHETHER the income or earning capacity of tenant alone should be taken into consideration by competent authority in proceedings U/S 19 of Slum Areas (I&C;) Act, 1956 or whether income of persons living with the tenant as members of his family can also be taken into consideration.

(2) Competent Authority granted permission to execute order of eviction obtained before the coming into force of the Act. (In para 3, Section 19 is reproduced.)

(4) Thus in granting or refusing to grant the permission under Sub Section (3) one of the factors to be taken into account by the Competent Authority is whether alternative accommodation within the means of the tenant would be available to him if he were evicted.

(5) It appears that the interpretation of the expression 'the means' as appearing in clause (a) of Sub section (4) of Section 19, has not been uniform. In Krishan Lal v. Smt. Ramo Devi and another (1972 R.L.R. 162 D L.T 509, Safeer., J., quashed an order of the competent Authority by holding that it had been in disregard of the requirements of section 19 of the Act. That case was in respect of a shop in occupation of one Kishan 1 as a tenant. The competent Authority found that Krishan Lal was also working with his father Kahan Chand in another shop and that the work carried on in the two shops was of different kinds. It was held that the competent authority could not take into consideration the means of the father while determining the means of the tenant to find alternative accomodation as the father was not a co-tenant with the tenant in respect of the shop regarding which eviction proceedings were intended to be instituted.

(6) Rangarajan J. in Shri Kirath Chand v. Shri P.R. Varshneya and others I.L.R. 1971 Delhi 405 took the view that the Income of the daughter-in-law '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. Deshpande J in Said ud-din v. Mahabir Singh 1971 Delhi 210 did not go into the question .whether the Income of the family members could be taken into . consideration in determing the means of the tenant as it was found that the tenant who had no income of his own but whose family of 3 members had an income of Rs.725.00 per month would not be able to find alternative accommodation within that income if evicted. In another case Mani Ram v. Ram Lal (C.W. (Main No 41 of 1971 decided on 22.7.1971), the same learned Judge took the view that where a tenant was living as a member of a joint family along with his well-to-do sons and if there was nothing to show that the tenant would have to pay alone to find alternative accommodation then in those circumstences it could not be said that the tenant was not in possession, of sufficient means to find alternative accommodation if evicted. T.V.R. Tatachari, J. in Om Parkash v. Lachhman Dass 1972 D.L.T. 382 observed that the means of the tenant is a material factor to be taken into consideration under Section 19(4) of the Act and it could not be assumed that a house belonging to the mother of a tenant would be available to the tenant for joint accommodation.

(7) There cannot be any doubt that under clause (a) of Sub. S. (4) of S 19 of the Act the means of the tenant have to be taken into consideration in determining whether alternative accommodation would be available to him if he were evicted. The word 'means'. is however, wider in. its scope, than the word 'Income' In the Oxford English Dictionary Volume VI-1933 edition at page 270 the word 'means' has been defined as 'the resources' at (one's) disposal for effecting some object, chiefly (of a person's) pecuniary resources viewed with regard'to their degree of adequacy to (his) requirements or habits of expenditure' in Koster v. Park 14 Q.B.D. 527 Cotton and Lindiey, L.J.J. were of the opinion that 'means' had no relation to their source. Lindiey. L.J. remarked that it was 'immaterial how the debtor obtained the means of paying the debt-whether he obtained it by gift, or charity or in any other way'. In Howard v. Howard (1945) P.L CA., Lord Greens observed that by 'means' is meant what the person concerned 'is in fact getting or can fairly be assumed to be likely to get'. In Maclean v. Maclean (1951) 1 All E.R. 967 rule 65 (3) of the Matrimonial causes Rules, 1950 (revoked by rule 67 (3) of the Matrimonial causes Rules, 1957) came up for consideration. Under that rule the Registrar had to take into account the 'means' of both husband and wife. Harman J. observed 98 under :-

'The word 'means' in the modern rule replaces the words 'separate estate' in rule 74 (4) of the Matrimonial causes Rules 1942. I can not think that, by this substitution, it was meant to narrow the meaning of that which the registrar had to consider. If 'separate estate, meant as, I have no doubt it did mean the entirety of the wife's property, whether in possession, reversion or remainder, 'means', think, must have no less wide a connotation'.

(8) It seems to us that the expression 'the means' as used in clause (a) of Sub Section (4) of Section 19 of the Act, can generally speaking be equated with the resources at the disposal of a tenant or what he is getting or can fairly be assumed likely to get irrespective of their source It Would, thereforee, be a matter for decision on the fact of each case as to what are the means of a particular tenant. While deciding the question of means of a tenant the Income to which he has a right is not the only thing to be taken into consideration. For example if a tenant is living with some of his family members and there is nothing to show that the income of all the family members living together is not being pooled for meeting the family expenses. including payment of rent, then the means of tenant would extend to the total Income of his own and that of his family members. If, however only a definite amount is being contributed by the family members living with a tenant then that amount alone can be added to the income of the tenant for determining his resource or means for finding out alternative accommodation in the event of- his eviction.

(9) Our reply to the question posed by the learned Single Judge is that the determination of the question of means of a tenant for purposes of Section 19(1)(a) of the Act will depend upon the facts of each particular case and generally speaking'he resources at his disposal for arranging for alternative accommodation will decide as to what are his means.


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