LADLI PRASAD Vs. FINANCIAL COMMISSIONER AND ANR

JUDGEMENT

(1.) The question for consideration is whether a finding given by the civil Court under section 13(1)(h) of the Delhi and Ajmer Rent Control Act, 1952 (hereinafter called the "Rent Act") that We tenant-petitioner had acquired vacant possession of a suitable residence as alternative accommodation other than the premises of the respondents-landlord occupied by him acted as res judicata in an inquiry before the Competent Authority under section 19 (4) of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter called the "Slums Act"). The petitioner was a tenant of the respondent landlord in respect of house No. 169. The landlord applied to the civil Court for permission to evict him, inter alia, on the ground that he had acquired vacant possession of a suitable residence within the meaning of proviso (h) to sub section (1) of section 13 of the Rent Act. After the Civil Court had given such a finding of fact in favour of the landlord, a learned Senior Subordinate Judge in appeal held that the trial Court had not put in issue two more allegations in the pleadings and therefore remitted two more issues for trials. In suit No. 127 of 1969 Shri K.C. Dewan, Sub-Judge, Delhi, gave his findings on these two issues also against the tenant In Rent Control Appeal No. 327 of 1962 Shri K. S. Siddu, Senior Sub Judge, Delhi, dismissed the appeal of the tenant with the following clear finding in paragraph (6) of the judgment at Annexure C to the written statement; I am, therefore, convinced that the defendant (tenant) had acquired vacant possession of a suitable residence in 1954 and that as such he is liable to be evicted from the premises in suit under Section 13(1)(h) of the Act". In Civil Revision No. 426-D of 1965, Dua C.J. again considered the case and came to the conclusion that the revision filed by the tenant was wholly devoid of merit and must be dismissed inasmuch as the decision of the courts below were according to law and thus unassailable. The finding of the civil Courts that the tenant acquired vacant possession of a suitable residence within the meaning of Section 13(l)(h) of the Rent Act thus became conclusive and res judicata between the parties. The landlord then applied to the Competent Authority under section 19 of the Slums Act for permission to execute the order of eviction granted by the civil Court. The Competent Authority agreed that the concurrent findings of the Sub judge, Senior Sub Judge and the High Court could not be challenged by the tenant. The learned Competent Authority however observed that there was nothing on the record to show that the tenant ever, lived in House No. 196 vacant possession of which, according to the findings of the civil Courts, had been acquired by the tenant as a suitable resilience for him within the meaning of section 13(i)(h) of the Rent Act. He further observed that according to the affidavits filed in the appeal, nobody was in possession of the said alternative accommodation (house No. 196) and since the tenant had never occupied the alternative accommodation, the learned Competent Authority was of the view that the tenant should not be forced to occupy the same and thereby jeopardise the interests of the community which is using it. The learned competent Authority then considered the question whether alternative accommodation within the means of the tenant would be available to him if he were evicted. He came to the conclusion that the tenant was not in possession of such means and his eviction would create further slum. He, therefore, refused to grant permission to the landlord.

(2.) In the appeal against the decision of the Competent Authority, the learned Financial Commissioner, however, was of different view. He observed that in the presence of the High Court judgment that house No. 196 was owned by the tenant in 1965 it was not open to the tenant to challenge that judgment by taking up a plea that house No. 196 was vested in a Trust to be utilised as a Dharamsala. He called upon the learned counsel for the tenant to indicate if any change in the ownership of the said house No. 196 had taken place since the decision of the Senior Subordinate Judge in 1966. But the learned counsel admitted that no change of circumstances had taken place since 1965. The learned appellate authority under section 20 of the Slums Act therefore held that the alternative accommodation in house No. 196 was available to the tenant and his eviction would not create any further slum. He therefore granted, permission to the landlord to evict the tenant.

(3.) The present writ petition has been filed by the tenant to impugn the validity of the order of the Financial Commissioner granting permission to the landlord to execute the order of the civil Courts under the Rent Act for the eviction of the tanant. The objections urged in the writ petition amounts to saying that the well reasoned order of the Competent Authority which was based on reasons should not have been reversed by the learned Financial Commissioner. But the writ petition did not squarely face the chief defect in the case of the tenant to which I drew the attention of Shri G. N. Aggarwal the learned counsel for the tenant, while arguing the petitioner's Case before me. The chief hurdle in the way of the success of the writ petition and therefore the main question in the writ petition is whether the decision of the civil Courts that the tenant had acquired vacant possession of a suitable residence for himself other than the premises in dispute within the meaning of section 13 (1)(h) of the Rent Act acts as res judicata in the inquiry by the Competent Authority under section 19 (4) of the Slums Act. In considering this question one has to carefully examine what precisely was decided by the civil Courts in the context of section 13 (1)(h) of the Rent Act and whether the finding of the civil Courts can preclude an inquiry by the Competent Authority into the status of the tenant under section 19(4)(a) of the Slums Act. The learned counsel for the petitioner argues that the scope of the enquiries under the two Acts is different. It is clear that under section 13(l)(h) of the Rent Act which corresponds to section 14(l)(h) of the Delhi Rent Control Act, 1958, the landlord had to prove that the tenant had acquired vacant possession of a suitable residence other than the premises in which the tenant was living. The word 'suitable' has been omitted in section 14(l)(h) of the Delhi Rent Control Act, 1958. But the finding of the civil Courts in the present case is that the tenant had acquired vacant possession of a suitable residence for himself other than the premises in dispute within the meaning of section 13(1)(h) of the Rent Act. The binding effect of this finding of the civil Courts as res judicata was not disputed by the tenant either before me or before the authorities acting under the Slums Act. The learned counsel for the tenant before the learned Financial Commissioner end Shri G.N. Aggarwal, learned counsel before me, however, made an attempt to displace the effect of the civil Courts' finding operating as res judicata on the ground of subsequent change of circumstances. Shri G. N. Aggarwal referred to the observations made by me in a previous decision in Madan Lal v. Competent Authority, 1969 RCR(Rent) 565. but I am clear that those observations have no relevance to the present case. The question posed there was whether the finding the Rent Control Authorities which decide the facts agitated upon between the parties during the Rent Control proceedings would continue as res judicata even after the end of the Rent Control proceedings. A unilateral change in the situation brought about by the tenant to defeat the eviction order passed by the Rent Control authorities would not escape the effect of res judicata as was held by me in Madan Lal's case. In a hypothetical case, when the permission of the Competent Authority under the Slums Act is asked a long time after the decision of the Rent Control authorities, such as 7 or 8 years thereafter, during which the tenant had persuaded his sub tenant to keep the premises with the result that the tenant had come back with the possession of the premises, it would be a question for consideration whether the decision of the Rent Control authorities would still Act as res judicata in the inquiry under section 19 of the Slums Act. The observations as to such hypothetical legal position were therefore entirely orbiter. This is while the real point decided in Madan Lal's case is merely that the finding of the Rent Control authorities acts as res judicata in an inquiry under the Slums Act also. The same view was again expressed by me in Yoginder Pal v. Competent Authority, 1969 RCR(Rent) 1073. Thereafter speaking for the Division Bench in Batto Mal v. Romeshwar Nath, 1970 RCR(Rent) 532 in paragraph (26), I had occasion to point out that the cause of action which had arisen in favour of the landlord could not be destroyed by a subsequent unilateraly act of the tenant. On this reasoning it is arguable that even if the tenant were to seek to displace the effect of the decision of the Rent Control proceedings by a subsequent charge in the position, the landlord would be entitled to argue before the Competent Authority that he is only seeking permission to execute the eviction order passed by the Rent Control authorities. It is doubtful then whether the Competent Authority under the Slums Act would be able to take into account the subsequent events. For, he has to give or refuse permission for the execution of the order passed by the Rent Controller and does rot have to decide independently about the status of the tenant. This would show that the question then it would arise, will have to be fully considered and the above observations are not to be taken to pre-judge such a case in any way.