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Punny Ram and ors. Vs. Chiranji Lal Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 190 of 1970
Judge
Reported inAIR1982Delhi431; 22(1982)DLT29b; 1982(3)DRJ342; 1982RLR576
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19
AppellantPunny Ram and ors.
RespondentChiranji Lal Gupta and ors.
Advocates: R.S. Narula,; D.S. Narula,; I.D. Garg and;
Cases ReferredIn C.R. Abrol v. Administrator
Excerpt:
slum areas (improvement & clearance) act, 1956 - section 19 clauses (a) and (b) of section 19 (4) are to be considered in the alternative. neither gets precedence nor are these to be read cumulatively. permission has to be granted if either of the two conditions are satisfied. - - if the finding of the competent authority is that the tenant has adequate means to acquire alternative accommodation, permission to evict should be 344 granted without any further consideration of the postulates of clause (b). it is further submitted that if the postulates of sub-clause (b) of section 19(4) of the act are satisfied) namely, on the facts and circumstances of the case the competent authority comes .to the conclusion that eviction of the tenant is necessary in the interest of improvement and.....prakash narain, c.j.(1) these three appels have been placed before us on a refernce by a division bench of this court. some of the points in the three appeals are different but it is not necessary to deal with each one of them as the main point is common that alone turns the fate of these appeals. (2) the common point of law which arises for determination in these cases is with regard to the interpretation of sub-section (4) of section 19 of the slum areas (improvement and clearance) act, 1956, hereinafter referred to as the act. this provision reads as under :- '(4)in granting or refusing to grant the permission 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.....
Judgment:

Prakash Narain, C.J.

(1) These three appels have been placed before us on a refernce by a Division Bench of this Court. Some of the points in the three appeals are different but it is not necessary to deal with each one of them as the main point is common that alone turns the fate of these appeals.

(2) The common point of law which arises for determination in these cases is with regard to the interpretation of sub-section (4) of section 19 of the Slum Areas (Improvement and Clearance) Act, 1956, hereinafter referred to as the Act. This provision reads as under :-

'(4)In granting or refusing to grant the permission 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 ; (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 prescribad.'

The contention on behalf of the appellants is that keeping in view the observations of the Supreme Court in Jyoti Persad v. Administrator for the Union Territory of Delhi and others, : [1962]2SCR125 , clauses (a) and (b) of sub-section (4) of section 19 of the Act have to be read cumulatively and permission to execute and order or decree of eviction against a tenant or to institute eviction proceedings against a tenant can only be granted if findings of the competent authority on both clauses (a) and (b) of Section 19(4) of Act are against the contention of the tenant. In other words, the competent authority has to first determine whether the tenant, if evicted, can within his means get alternative accomodation of the type which would not result in creating another slum and then determine whether the eviction would be in the interest of improvement and clearance of the slum areas. Alternatively, the appellants submit, even if the finding of the competent authority is that the tenant, if evicted, can get accommodation within his means of a type which will not create slums, the tenant cannot be evicted unless he is given reasonable alternative accommodation which will not be slum-type of accommodation. As a further alternative it is submitted that for a tenant who does not have the means to get alternative accommodation of the type which may be described as not being a slum, he can be evicted or allowed to be evicted only if alternate decent accommodation is made available to him. The appellants contend that several decision of this court in which it has been held that clauses (a) and (b) of Section 19(4) of the Act have to be considered by the competent authority disjunctively need to be reconsidered in view of the dicta of the Supreme Court in Jyoti Preshad's case (supra).

(3) As opposed to the above contentions the respondents submit that clauses (a) and (b) of Section 19(4) of the Act have to be read disjunctively. If the finding of the competent authority is that the tenant has adequate means to acquire alternative accommodation, permission to evict should be 344 granted without any further consideration of the postulates of clause (b). It is further submitted that if the postulates of Sub-clause (b) of Section 19(4) of the Act are satisfied) namely, on the facts and circumstances of the case the competent authority comes .to the conclusion that eviction of the tenant is necessary in the interest of improvement and clearance of slum areas then the fact that the tenant does not have means to acquire alternative accommodation is irrelevant. In putting forth this submission the respondents counter the contention on behalf of the appellants that improvement and clearance of the slum areas contemplated by clause (b) of Section 19(4) of the Act has to be improvement and clearance of the slum areas as contemplated by Chapters Iii and Iv of the Act. The contention is that the scheme for the improvement and clearance of slum areas by the State or any authority under the State alone should not and cannot be regarded as a condition precedent for invoking clause (b) of Section 19(4) of the Act as this activity can even be undertaken by an owner or a group of owners of the property. The Preamble of the Acts reads as under :- 'An Act to provide for the improvement and clearance of slum areas in certain Union Territories and for the protection of tenants in such areas from eviction.' As is apparent from a reading of the Preamble the legislative intent of a social legislation of the type with which we are concerned is to attain an objective and in the intervening period to provide protection to, what may be called, the weaker section of the society. A careful study of the substantive provisions of the Act would bring out this objective even better and we shall be dealing with the same. Suffice it to say at this stage that the objective of this legislation is to eradicate the evil of slums by improving and clearing them either singly or collectively. In the transitional period, till that is done, the weaker section of the society is to be protected. This aspect is brought out with great force in Jyoti Pershad's case (Supra). For reasons which it is almost impossible to enumerate or even comprehend, the social objective sought to be realised by the Act enacted . by the Parliament way back in 1956 has not yet been realised to any significant event. Indeed Section 19 of the Act was amended by Parliament by the amending Act 43 of 1964, Realizing after 8 years that the Act had been in force, that the objective outlined by the Preamble needed to be further clarified or elaborated by substituting Section 19 as it existed earlier with section as contained in Section 10 of Act 43 of 1964. To day thereforee, we will have to read not only the Preamble but the entire Act in the light of Section 19 as amended to get & clear picture of the legislative intent. Section 19 as it stood prior to the amendment of 1964 reads as under :- '19(1) Notwithstanding any thing contained in any other law for the time being in forced) on person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitld 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. 345 (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 cases as it deems fit, shall by order in writing either grant such permission or refuse to grant such permission. (4) Where the Competent Authority refuses to grant the permission, he shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.' The amendment to Section 19 reads as under :- '19(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 Areal (Improvement and Clearance) Amendment Act, 1964, 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 permission under sub-section (3), the Competent Authority shall take into account the following factors nemely :- (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, may be prescribed. (5) Whether 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 Why we are reading the unamend Section 19 because also in Jyoti Pershad's case, which was decided in 1961, their Lordships of the Supreme Court who were with the unamended Section 19, and in construing 346 it observed that as guideline for the enquiry postulated by the Competent authority was to be found in the Preamble, the Section could not be regarded as giving arbitrary powers. Mr. Narula, appearing for the appellants, however, submits that the amendment of Section 19 would still not make any difference as the law declared in Jyoti Pershad's case is binding on courts and the legislative intent on a correct reading of the Preamble even with the amended Section 19 would be laid down in Jyoti Perhad's case.

(4) Before we deal with the above contention, it would be but proper to notice the scheme of the Act, we have already read the Preamble. Chapter I deals with preliminary matters and has two sections. Section 1 deals with the title of the Act and the extent and commencement thereof. Section 2 sets out terms which have been defined. Clause (f) of Section 2 defines 'Occupier'. This provisions reads as under :- ' 'Occupier' includes :- (a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such rent is paid or is payable ; (b) an owner in occupation of, or otherwise using his land or building ; (c) a rent-free tenant of any land or building ; and (d) a licensee in occupation of any land or building ; and (e) any person who is liable to pay the owner damages for the use and occupation of any land or building :' Clause (g) of Section 2 defines 'owner'. Clause (i) of Section 2 defines the term 'slum clearance' as meaning the clearance of any slum area by the demolition and removal of buildings there from. Clause- (j) defines the term 'Work of Improvement' which reads as under :- ''Work of improvement, includes in relation to any building in a slum area the execution of any one or more of the following works, namely :- (i) necessary reparis; (ii) Structural alterations ; (iii) Provision of light points, water taps and bathing places ; (iv) Construction of drains, open or covered ; (v) Provision of latrines, including conversion or dry latrines into water-borne latrines; (vi) Provision of additional improved fixtures or fittings ; (vii) Opening up or paving of courtyards ; (viii) removal of rubbish ; and (ix) any other work including the demolition of any building or any part thereof which in the opinion of the compete 347 authority is necessary, for executing any of the works specified above.' The term 'tenant' has not been defined by the Act despite the fact that it is used in some of the provisions which will we notice later.

(5) Chapter Ii and Chapter Iii deal with declaration of slum areas and the power conferred on the State to fulfill the avowed object of the Act clearance and improvement of slum areas. Section 3 lays' down that the competent authority (as defined in section 2(c) ) upon report from any of its officers or other information in its possession and on being satisfied in respect of any area that the building in that area are either unfit for human habitation or arc dilapidated or there is overcrowding etc. by notification in the Official Gazette declare any area to be a slum area. We are told that in the Union Territory of Delhi the entire walled city of old Delhi has been declared slum area. As provided by tub-section (2) of Section 3 in determining whether a building is unfit for human habitation for the purposes of the Act, the competent authority has to have regard to specified factors. Thus, the power under Section 3 is to declare either an entire area as slum arc or a building as covered by the Act being in the nature of a slum. Section 4 of the Act confers powers on the competent authority to call upon the owner of a building to get work done in the nature of improvement of a building declared unfit for human habitation so that it is rendered a building fit for human habitation. If the owner is not able to do so within the time specified in the notice, the competent authority is authorised to carry out the necessary works of improvement himself by Section 5 of the Act and recover the expenses incurred. After the works of improvement has been executed, the competent authority is even authorised by Section 6 to entrust maintenance of the building to a local authority at the cost of the occupier. Section 6 empowers the competent authority by a notification to direct that no person shall errect any building in a slum area except with the previous permission in writing of the competent authority. Obviously, this is with the intention to ensure that new or improved buildings do not go .up except in accordance with a regular scheme in consonance with the object of clearing and improving slum areas. Section 7 gives the power to the competent authority to direct demolition of buildings unfit for human habitation. Section 8 deals with procedure to be followed where a demolition order is made.

(6) Chapter Iv of the Act deals with slum clearance and re-development and obviously postulates a scheme in consonance with the principles of welfare State. Section, empowers the competent authoriy to declare the whole or any part of an area which has been declard as a slum area to be a clearnce area. Section 10 authorises clearance of slum from the area declared to be a clearance area. Section 11 empowers the competent authority to re-develop a clearance area.

(7) In Order to make the scheme workable, power is conferred by the provisions of Chapter V to compalsorily acquired land and building after payment of compensation to persons interested. Section 12 to 18 deal with this aspect.

(8) Chapter Vi deals with protection of tenants from eviction in slum areas. Section 19 is the first section in this Chapter .and the same has been 348 read, both before and after the amendment. Section 20 provides for appeals against orders refusing to grant permission referred to in Section 19. Section 20 deals with restoration of possession of premises vacated to a tenant where a tenant vacates the building or is evicted there from on the ground that it was required for the purpose of executing any work of improvement or for the purpose of re-erection of the building if the tenant has filed a declaration with the competent authority that he desires to be replaced in occupation of the building after the completion of the work of improvement or re-erection of the building, as the case may be. Section Sob deals with rents in slum areas of buildings which arc re-erected or improved. Section 21 lays down that the provisions of Chapter Vi will not apply to or in relation to the eviction under any law of a tenant from any building in a slum area belonging to the Government, the Delhi Development Authority or any local authority.

(9) Chapter Vii deals with miscellaneous provisions like power of entry, inspection, the time when the same is to be done and other powers incidental to fulfillling the objects of the Act. Section 30 gives a residuary power of appeal against order, notices, directions etc. issued by the competent authority excluding the provision of appeal against orders, notices, directions etc. issued by the competent authority excluding the provision of appeal in Section 20 of. the Act. Section 31 deals with the manner of service of notices etc. Section 32 provides for penalties. Section 33 is significant. It lays down that where the erection of a building is commenced or is being carried out or has been completed, in contravention of any restriction or condition imposed under sub-section (7) of Section 10 ir a plan for the re-development of any clearance area etc., the competent authority may, in addition to any other remedy, make an order directing that such erection that be demolished by the owner thereof within a specified time. If the owner fails to comply with the said order, the competent authority is empowered to demolish the same and recover the expenses. Section 34 provides that no court inferior to that of a Magistrate 1st Class shall try an offence punishable under the Act. Section 35 is the usual provision that previous sanction of the competent authority is necessary before any prosecution for an offence under the Act is instituted. Section 36 provides for delegation of powers by the competent authority. Section 37 provides for protection of action taken in good faith. Section 37A is the usual provision in a special law barring jurisdiction of civil courts. Section 38 declares the competent authority and any person authorised by him under the Act to be a public servant within the meaning of Section 21 of the Indian Penal Code. Section 39 provides for the Act and the Rules made there under to have an overriding effect on any other law. Section: 40 gives the Central Government power to frame rules.

(10) By S.R.O. 438 of 1957 the Central Government framed the Slum Areas (Improvement and Clearance) Rules, 1957 hereinafter referred to as the Rules. These Rules provide for the forms in which various notices etc. are to be issued and the manner of authentication of the same. Rule 6 lays down what every plan for re-development of a slum are has to include. Rule 7 spells out the requirements of Section 19.

(11) The validity and virus of the Act, as originally enacted by Parliament, was challenged by three petitions filed under Article 32 of the Constitution of India in the Supreme Court. In particular, the constitution 349 ality of Section 19 of the Act was challenged on the ground that it offeneded Fundamental Rights guaranteed by Articles 14 and 19(l)(f) of the Constitution. One of the petitions was filed by Jyoti Pershad. He claimed that he was the ownc,r of a house in Delhi in which respondents 3 to 11 in the petition were the tenants. Each of the 9 tenants occupied a single room tenament. As the petitioner considered the house to be old which required demolition and reconstruction, he submitted a plan to the then Delhi Municipal Committee and applied for sanction for reconstruction of the house. The plan was sanctioned. Thereafter he filed suits against the nine tenants under Section 13(1)(g) of the Delhi and Ajmer Rent Control Act, 1952. The Civil Courts decreed the suits for the eviction of the tenants and gave three months' time to the tenants to vacate the premises in their possession as postulated by and in terms of Section 15 of the said Act of 1952. Appeals filed by the tenants were dismissed by the Senior Sub-Judge, Delhi. In the meanwhile the sanction given by the Delhi Municipal Committee lapsed and Jyoti Pershad had to apply for renewal of the sanction. While this was still pending, the Slum Areas (Improvement and Clearance) Act, 96 of 1956 was enacted by Parliament and came into force in the Union Territory of Delhi. Another development that look place was the regulations came into force for integrated and planned development of Delhi. On account of the second change the renewal of the sanction of the building plan submitted by Jyoti Pershad had to take some more time. He was also required on account of the first change, namely, the Act coming into force, to apply under Section 19 of the Act for permission to execute the decrees he had obtained against his nine tenants. Accordingly, he filed nine applications under Section 19 of the Act for permission to execute the decrees of eviction. These petitions were dismissed by the competent authority by his order dated January 13, 1958 on the ground that the sanction to reconstruct the building which the petitioner had obtained from the Municipality in 1956 had expired. The petitioner was, however, given option to revive his applications after getting the requisite sanction for reconstruction. Having obtained that he again filed nine applications under Section 19 of the Act for permission to execute the decrees. These applications were dismissed and permission was declined by an order dated July 30, 1958 on the ground that the tenants were old tenants and very poor persons ; they were living in. slum conditions and did not have the means to acquire any other accommodation and considering the human aspect of the misery that may be caused to the tenants, if evicted, the permission could not be granted. Apppeals under Section 20 filed by Jyoti Pershad were also dismissed on the same grounds. Thereupon he filed a petition under Article 32 of the Constitution and moved the Supreme Court to strike down Section 19 of the Act vocative of Article 14 and 19(1)(f)of the Constitution. It was submitted that Section 19 conferred arbitary power on the competent authority without any guidelines and so, infringed Article 14 of the Constitution. It was further contended that with holding of the permission by exercise of unguided and arbitrary discretion amounts to deprivation of property within the meaning of Article 19(l)(f) of the Constitution. thereforee, the point in issue before the Supreme Court was whether the unamended Section 9 conferred unguided and arbitrary power or discretion. It is in this context that the Supreme Court read the Preamble and other provisions of the Act to find out whether there was any legislative guideline for the exercise of the power conferred by Section 19 of the Act. The argument that in as much as the Act fixed no time limit during which alone the restraint on eviction is to operate was advanced to show 350 the arbitrary nature of the law which would be vocative of Article 14 of the Constitution. The Supreme Court repelled the contention raised and upheld the constitutionality of Section 19 of the Act observing, inter alia, as under :- 'The preamble describes the Act as one enacted for two purposes : (1) the improvement and clearance of slum areas in certain Union Territories, and (2) for the protection of tenants in such areas from eviction. These twin objects are sought to be carried out by Chapters Ii to Vi of the- enactment. Chapter Ii which consists of one section-S. 3-provides a definition of what are 'slum areas and their declaration as such. The tests for determining whether the area could be declared a 'slum area' or not briefly are whether the buildings in the area are (a) unfit human habitation, or (b) are by reason of dilapidation, overcrowding, etc., detrimental to safety, health and morals. It is in areas so declared as 'slum areas' that the rest of the enactment is to operate. The provisions, however, make it clear that in, order that an area may be declared a 'slum area' every building in that area need not be unfit for human habitation or that human habitation in every building in such area should be detrimental to the safety, health or morals of the dwellers. We are making this observation because of a suggestion made that the declared purpose of protecting the tenants from eviction was inconsistent with the Policy underlying the declaration of an area as a 'slum area' and that thus the Act manifested two contrary or conflicting ideas or principle which would negative each other and thus leave no fixed policy to guide 'the competent authority' when exercising the powers to grant or refuse eviction when an application was made to him in that behalf under S. 19 of the Act.' After diplating upon the scheme of the Act and the objects of the provisions in the various Chapters, the Supreme Court while dealing with Chapter Vi which sets out the protection afforded to tenants in slum areas from eviction, observed as under :- '......Obviously, if the protection that is afforded is read in the context of the rest of the Act, it is clear that it is to enable the poor who have no other place to go to, and who if they were compelled to go out out would necessarily create other slums in the process and like perhaps in less commodious and more unhealthy surroundings than those from which they were evicted to remain in their dwelling until provision is made for a better life for them elsewhere. Though thereforee, the Act fixes no time limit during which alone the restraint on eviction is to operate, it is clear from the policy and purpose of the enactment that the object which it seeks to achieve that this restriction would only be for a period which would be determined by the speed with which the authorities are able to make other provisions for affording the slum dweller tenants better living conditions The Act, no doubt, looks at the problem not from the point of view of the landlord, his needs, the money he has sunk in the house and the possible profit that he might make if the house were either let to other tenants 351 or was reconstrcted and let out, but rather from the point of view of the tenants who have no alternative accommodation and who would be stranded in the open if an order for eviction were passed. The Act itself contemplates eviction in cases where on the ground of the house being unfit for human habitation it has to be demolished either singly under S 7 or as one of the block of buildings under Ch. IV. So long thereforee as a building can, without great detriment to health or safety, permit accommodation, the policy of the enactment would seem to suggest that the slum dweller should not be evicted unless alternative accommodation could be obtainen for him...... ..In view of the foregoing we consider that there is enough guidance to the competent authority in the use of his discretion under S. 19(1) of the Act and we, thereforee, reject the contention that S. 19 is abnoxious to the equal protection of laws guaranteed by Art. 14 of the Constitution......... the guidance which we have held could be derived from the enactment, and that it bears a reasonable and rational relationship to the object to be attained by the Act, and, in fact, would fulfill the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings.........'. It is somewhat unfortunate that though the object sought to be achieved by the Act, enacted by Parliament in 1956, was expected to be achieved with a certain amount of dispatch, for unforseen reasons and difficulties the object has still not been fully realised. However laudable the object, there were and have been practical difficulties in completely eradicting slums though it cannot be denied that considerable work has been done in this regard. The need for the continuance of such a social legislation, thereforee, has not ceased to exist in the context of the egalitarian society to which we are pledged. Indeed, in some ways Realizing all these aspects Section 19 was amended and so, today one has to pronounce upon the existing law and not be completely guided by observations made by the Supreme Court in a different context way back in 1961. We cannot persuade ourselves to agree with Mr. Narula learned counsel for the appellants, that the amended Section 19 also has to be construed only as per the observations of the Supreme Court in Jyoti Pershad's case and that if the tenant is found to be lacking in means to take alternative accommodation, .he cannot be allowed to be evicted unless adequate alternative accommodation is made available to him by the State.

(12) It has been urged by Mr. Narula that only on account of what has been said by the Supreme Court in Jyoti Pershad's case but also otherwise in finding out whether conditions postulated by Section 19 exist or not, the approach of the competent authority has to be that the matter is to be examined from the point of view of giving protection to a poor tenant and the matter is not to be looked at all from the point view of the landlord. It is further urged that even the amended Section 19 lays down nothing more than what was already laid down in Jyoti Pershad's case and all the factors enumerated in Section 19(4) of the Act have to be taken into consideration, not merely the existence of one or the other factor. He contends that if thil is to be the approach in construing the scope and effect of Section 19(4) of the Act then some of the decisions rendered by this Court and other courts require reconsideration.

(13) It will, thereforee, be in the fitness of thing if we now advert to the various decisions brought to our notice.

(14) In Vishndas v. The Administrator of the Union Territory of Delhi and othters, , D.K. Mahajan, J. sitting at Delhi in the Circuit Bench of that court held that while granting or refusing peimission to evict a tenant under section 19 of the Act, the authorities need not go into the need of the premises by the landlord. The primary requirement that has to be gone into is what is the status of the tenant and his means to get alternative accommodation so that if he is evicted he does not create another slum. The learned Judge had relied on Jyoti Pershad's case in making the above observations.

(15) In Smt. Parvati Devi v. Tibbia College Board and another, 1965 (2) DL T 256, a Bench of the Punjab High Court sitting in Circuit at Delhi observed that the question whether alternative accommodation within the means of the tenant would be available to him if he were evicted is one of the matters which is to be taken into account by the competent authority. It was held that Section 10 of the Act does not lay down that in all cases where alternative accommodation within the means of that tenant could not be available to him the competent authority must refuse the permission. The Bench approved, looking at the circumstances under which eviction had been ordered by a Rent Controller under the rent control legislation, and held that if eviction had been ordered to enable a landlord to carry out any work at the instance of the Government of the Delhi Development Authority or the Municipal Corporation of Delhi in pursuance of any improvement scheme or development scheme and such building work cannot be carried out without the premises being vacated, the poverty of the tenont cannot be allowed, to block the improvement scheme or development scheme which the landlord is under an obligation to carry out. In this context, the argument that Jyoti Pershad's case lays down a rule that a poor tenant who has no means to take alternative accommodation cannot be turned out unless he is provided with alternative accommodation was repelled.

(16) In C.R. Abrol v. Administrator under the Slum Areas and others, 2nd 1970 (1) Delhi 768 a Bench of this Court held that Section 19(4) of the Act is mandatory and exhaustive and that the Competent authority, while exercising discretion given to it, must take into account the factors stated in Section 19(4) and nothing else. Referring to the decision in Smt. Parvati Devi's case (supra) the Bench observed that despite the amendment of Section 19 of the Act, Jyoti Pershad's case should be sufficient to construe Section 19(4) as being mandatory and exhaustive even though such construction may prevent the landlord from evicting his tenant except on one of the grounds expressly mentioned therein. The discretion given to the competent authority to give or refuse permission under the unamended Section 19 was to be exercised, according to the Supreme Court, on principles gatherable from the enactment. It is well-settled that such discretion if exercised on irrelevant extraneous considerations would have to be struck down as illegal and ultra virus the Act. The Legislature, thereforee, inserted a. new sub-section (4) in Section 19 to give effect to the observations of the Supreme Court by expressly laying down the considerations which must guide the competent authority in exercising the discretion. The pew Sections 19(4) enjoins upon 353 the competent authority to take into consideration the factors enumerated there under. The Legislature has, thereforee, enacted what it considers to be the relevant considerations which will guide the competent authority. thereforee, those are the only factors which can be taken into consideration and none other. Abrol's case, thereforee, lays down the rule that Section 19(4) enumerates the factors which alone can be taken into consideration by the Competent authority and that if either of the factors arc in existence the competent authority has the discretion to grant permission. This decision, thereforee makes a departure from the law as understood earlier.

(17) In Fatima and others v. Shri M.K. Rai and another, (C.W. 1268 of 1970 decided on July 30, 1971) a learned Single Judge on this court construed the rule enunciated in Abrol's case (supra) and reiterated that Section 19(4) of the Act was mandatory as well as exhaustive. He further observed that the considerations under Clauses (a) and (B) in Section 19(4) were alternatives and were not to be read cumulatively. The learned Judge further observed that there has to be a clear and definite finding by the competent authority on the status of the tenant vis-a-vis his ability to find alternative accommodation within his means without creating another slum. A mere observation that the competent authority regarded the tenant as having poor status was not enough.

(18) In M/s. Kishan Lal Mahadeo Pershad and another v. I. K. Sharma and another, : AIR1974Delhi32 , one of us (Prakash Narain, J.) was concerned with a petition under Article 227 of the Constitution in which an order of the competent authority was challenged granting permission to a landlord to file a petition for eviction against the petitioners before this Court. It was urged in that case that inasmuch as the competent authority had not considered the status or means of the tenant, as was mandatory in view of the rule enunciated inAbrol's case, his order was vitiated. It was held that in the circumstances of that case finding regarding status or ability to find alternative accommodation was not necessary. The eviction of the petitioner, in that case, was sought from a shop. ft was established that the petitioner had shifted his business to Jaipur and was not in physical possession of the shop in question. In such circumstances since requirements of clauses(a) and (b) of Section 19(4) were in the alternative it was held that non-consideration of the status of the tenant did not vitiate the order granting permission to file an eviction petition.

(19) In Mahavir Pershad v. M/s. Mahalakshmi Investment and Property Company Ltd. and others, (L.P.A. No. 122 of 1969 decided on September 16, 1973) another Bench of this Court reiterated the rule enunciated in Abrol's case. It was noticed that no rules have been framed under Section 19(4)(c) of the Act. thereforee, clauses (a) and (b) are the only conditions which have to be seen by the competent authority reading the two conditions disjunctively and not cumulatively. It was, however, observed that considering the objectives sought to be achieved by the Act, clause (a) has to be seen first and clause (b) thereafter. As we read it, what the judgment lays down is that if the conditions postulated by clause (b) of Section 19(4) exist, poverty of the tenant or his inability to get alternative accommodation within his means cannot be pleaded by the tenant io persuade the competent authority io his discretion to refuse permission. In this context, it was held that improvement and clearance of the slum area mentioned in clause (b) of 354 Section 19(4) of the Act is not in the same terms as clause (g) of the proviso to sub-section (1) of Section 13 of the Delhi Rent Control Act, 1952. What it means is either the building in question is unfit for human habitation and requires demolition or reconstruction. It was clearly laid down that clauses (a) and (b) of Section 19(4) have to be read disjunctively as alternatives and not cumulatively. To do otherwise would not be in consonance with the object which the Act seeks to achieve. The decision of another Bench of this Court in C.R. Abrol case (supra) was noticed with approval.

(20) We need not notice any other cases. The law as laid down by this Court for quite some time has been quite clear and the rules enunciated may be enumerated as follows : (a) In Jyoti Pershad's decision rendered by the Supreme Court the constitutionality of the Act and in particular Section 19, as then in force was upheld by holding that guidlines for exercise of the Power contemplated by Section 19 existed in the Preamble, and other provisions in Chapter Ii, Iii and Iv of the Act. (b) One of the objects sought to be achieved by the Act, namely, protection to tenants, is to be found in the Provisions contained in Chapter Vi of the Act and in particular Section 19. The exercise of the power, in the light of the observations of the Supreme Court in Jyoti Pershad's case, had to made keeping in view the means and status of the tenant and the other object of eradicating slums and prevention or creation of slum. The factors which had to be taken into consideration previously by looking at the entire scheme of the Act by the competent authority were specifically enumerated by the amendment of Section 19 and introduction of Section 19(4) in the Act. (c) That on the enactment of Section 19(4) it cannot be said that the scheme of the Act or its objectives have been in any way changed from what was pronounced in Jyoti Pershad's case. In view however, of the enactment of Section 19(4), the conditions for the exercise of the power by the competent authority were clearly defined. (d) That the conditions mentioned in clause (a) and (b) of Section 19(4) of the Act. (e) That the principal objective of the Act being were conditions in the alternative and did not have to be read cumulatively. . (f) The provisions of any other enactment could not be relied, upon in construing the validity of the exercise of the power under, Section 19 of the Act) clearance of slums and Prevention and. creation of slums) if in a given case the demolition or re-erection or re-construction of a building Was necessary in the interest. of of slum clearance or improvement, the poverty of the tenant even if establised would not debar the competent authority from granting permission. (g) The competent authority in considering the application for grant of permission moved by a landlord, has to look at the matter from: the point of view of the tenant and not from the point of view of the view landlord ever keeping in mind the objective sought to be achieved by the Act. 355 The learned Single Judge In the appeals before us came to the conclusion on the facts of the cases that neither the competent authority nor the Administrator took into consideration the express finding given by the Commissioner, Shri Bhatia, that the rooms of the premises were dark and there was no ventilation and, thereforee the Commissioner did not consider the building fit for repairs and, in his opinion, the same required immediate reconstruction. In other words, the competent authority and the Administrator did not at all consider whether the circumstances postulated by clause (b) of Section 19(4) existed. Permission to execute the order of eviction was declined only on the ground that the tenants were extremely poor and not in a position to acquire alternative adequate accommodation in that if they were evicted, they may create slum. The learned Single Judge remanded the case to the competent authority with the direction that the competent authority shall first consider whether the conditions of clause (b) of Section 19(4) of the Act exist. If they exist, no further enquiry need be made. If they do not exist, then only an enquiry with regard to conditions postulated by Clause,(a) of Section 19(4) has to be made. For purposes of this enquiry liberty was given to the parties to file fresh affidavits. It was further observed that the competent authority went wrong in holding that the Act did not apply to premises used for commercial purposes.

(21) Mr. Narula appearing for the appellants has no quarrel with the proposition that the Act applies to both residential and commercial purposes. His only challenge is that clause (a) and (b) cannot be read disjunctively and as far as clause (b) is concerned, even if the building or buildings are in completely dilapidated conditions, justifying removal for slum clearance, the order of eviction cannot be allowed to be executed till slum clearance and improvement is done in accordance with the Provisions of chapters Ii and Iii of the Act. In other words, alternative accommodation has to be provided to the tenants if they are too poor to acquire the same themselves before eviction can be ordered.

(22) In our opinion, the law is well-settled. Improvement and clearance of slum is the avowed object of the Act. Chapters Ii, Iii and Iv give power to the State or its Officers to attain the objective and in order to attain it have been given the requisite power so that there is no hindrance or obstruction. Because of the existence of this objective and constitutionality of Section 19 was upheld by the Supreme Court in Jyoti Pershad's case wherein it was said that the exercise of Power under Section 19 has to be in accordance with the legislative guidelines contained in the Preamble and Chapters Ii, Iii and Iv of the Act. We cannot read the observations of the Supreme Court as laying down that the State and State alone is to act to attain the objective of this social legislation. An individual or a ground of individuals owning property in slum areas can assist the State in attaining the objective of clearing and improving slums. Indeed, that is why the Parliament brought in the amendment to Section 19 and Section 19(4) was enacted. There is no conflict between the observations of the Supreme Court in Jyoti Pershad's case and circumscribing the exercise of power by the Competent authority within the limits postulated by Section 19(4). Clause (b.) of Section 19(4) cannot be read to mean that unless alternative accommodation is provided in every case as a pre-condition, improvement and clearance of slum areas cannot be contemplated, It may be in the interest of improvement and clearance of slum areas to some time demolish buildings 356 even if it means evicting the occupants with no alternative accommodation being proved to them. When the Supreme Court said in Jyoti Pershad's case that alternative accommodation being provided to them. When the Supreme Court said in Jyoti Pershad's case that alternative accommodation should be provided, it was in the context of slum areas being cleared by the State. Indeed, as recent history will show alternative accommodation was provided to a large number of shim dwellers when these areas were cleared by the State in the execise of powers under Chapters Ii, Iii and Iv of the Act.

(23) We cannot persuade ourselves to agree with Mr. Narula that improvement and clearance of slum areas postulated by clause (b) of Section 19 is only that improvement and clearance of slum area which is contemplated by Chapters Ii, Iii and Iv of the Act. No doubt, the terminology in Clause (b) of Section 19(4) ii similar to the terminology of the Provisions in Chapters Ii, Iii and Iv but the improvement and clearance of slum areas contemplated in Chapter Vi is in the context of protection granted to tenants from eviction. The words have to be read in the context of enforcement of rights and obligations of private parties. As we have observed earlier, the Parliament was conscious of the conditions obtaining in the areas where the Act had been in force and the extent to which the objective had been achieved when it enacted Section 19(4). thereforee, Clauses (a) and (b) have to be read disjunctively and it would amount to looking at the matter from the point of view of the tenant when permission is granted if conditions contemplated by clause (b) of Section 19(4) exist. That incidentally the landlord is benefited is immaterial. Just ai protection from eviction is a social concept so is prevention of people from living in hovels. We are, thereforee, of the opinion that the law enunciated in Abrol's case and in Mahabir Pershad's case (supra) is the correct law. We do not accept the proposition that clauses (a) and (b) must be read cumulatively. We do not also accept that even if the conditions postulated by clause (b) exist, but the tenant is too poor to acquire alternative accommodation, he can in no circumstances be evicted. We further hold that if the competent authority on valid grounds comes to the conclusion in a given case .that eviction of the tenant is in the interest of improvement and clearnace of slum areas, looking at it from the tenant's point of view the competent authority need not further investigate the question of the mean? and status of the tenant. We negative the contention that improvement and clearance of slum areas in Section 19(4)(b) means improvement and clearance of sluma areas by the State alone under a proper scheme. In a given set of circumstances the improvement and clearance of slum areas can be effectuated by an owner of a building or a group of owners who will have to obtain sanction of the building plans which we know can only be sanctioned under municipal bye-laws in force in the Union Territory of Delhi if the proposed construction or reconstruction not only complies with the municipal bye-laws but also complies with the Zonal and Master Plans framed under the Delhi Development Act which are the documents for planned development of Delhi.

(24) This brings us to the consideration of a few other aspects agitated at the Bar. Sub section (3) of Section 19 of the Act postulates grant or refusal of the permission to institute any suit or proceedings for obtaining a decree or order for eviction of a tenant or where any decree or order is obtained in any 357 suit or proceedings ingtituted before the commencement of the Act for eviction of a tenant from any building or land in an area declared as a slum area. The question that arises for consideration is what is the meaning of the term 'tenant'. As noticed earlier, this term is not defined by the Act. Mr. Narula submits that tenant contemplated by Section 19 is a person in occupation of a person likely to be evicted, if permission is granted to institute eviction-proceedings or execute an order of eviction. We do not agree. The protection contemplated is for a tenant as recognised by law. A mere occupier cannot be equated to a tenant. An occupier may be a trespasser or a licensee or a tenant. The concept of welfare State cannot extend to giving protection to trespassers or persons who have no right of occupation. thereforee, when the Legislature used the term 'tenant' in Section 19 as well as in the Preamble of the Act it meant tenant-in-law.

(25) We do not agree with the learned Single Judge that even the unamended Section 19, as construed by the Supreme Court in different, context set out two grounds on either of which permission could be granted. The Supreme Court was really concerned with the virus of Section 19 of the Act and held that guidelines for the exercise of the power could be found in the Preamble and other provisions of the Act. The guidelines were crystalised by the enactment of sub-section (4) of section 19 and once that has been done applications under Section 19 had been disposed of on the basis of those factors only.

(26) The learned Single Judge has observed that non-cansideration of D.J. Bhatia's report about the state of the premises vitiated the orders. Inappropriate cases such reports may be looked into but in view of the provisions of Section 19(4) of the Act when an appliction is filed under Section 19(1) the authorities under the Act can exercise the power to grant or refuse to grant permision only within the limits set out by Section 19(4) of the Act. Admittedly, no other factors have been prescribed by any rules or regulations. thereforee, if either of the conditions postulated by clause (a) and (b) of Section 9(4) justified the grant of permission, it has to be granted. In plain language it means that if the tenant is held to have the means to acquire alternative accommodation, permisson must be granted. Alternatively, even if the if the tenant does not have means to 'acquire alternative accomsion but his eviction is in the interest of improvement and clearance of slum areas, permission hag to be granted. Maybe, in a given case, a poor tenant, if evicted, creates another slum. Nonetheless, if it is in the interest of improvement and clearance of a slum area that he be evicted, then permision must be granted. It is in the larger interest of tenants that slum areas are acquired and/or improved. Looking at the report like the one given by Mr. Bhatia, can only be in the aid of considering whether conditions postulated by clause (b) of Section 19(4) exist. As we have laid earlier, clauses (a) and (b) arc to be considered in the alternative. Neither gets precedence nor are these to be read cumulatively.

(27) All other eriquiries, including whether a person is a tenant or is not a tenant, or a landlord needs or docs not need the premises, arc outside the scope of the enquiry contemplated by Section 19 of the Act. These are matters which have to be considered by civil courts or by Rent Controller.

(28) The result is that we dismiss these appeals. The competent authority will decide the matter afresh in accordance with law beeping in view the principles set out by us.

(29) In the circumstances of the case there will be no order as to costs.


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