BISHAN SINGH Vs. KALA WATI

JUDGEMENT

(1.) By this petition under Art. 227 of Constitution of India, the tenant challenges an order of the appellate authority under the Slum Areas (Improvement & Clearance) Act, 1956, hereinafter called "the Act", by which it has reversed the order of the Competent Authority under the Act refusing permission to the landlady to initiate eviction proceedings against the tenant.

(2.) The proceedings have had a somewhat chequered history. The dispute relates to a one room tenement being No. 429d; situated in Basti Nand Ram, Gali Barna Khurd Sadar Bazar, Delhi. On June 14, 1966, the landlady applied to the Competent Authority under the Act for permission to evict the tenant, inter alia, on the ground that the tenant had been in possession of alternative accommodation, being premises No. 4284, Gali Barna, Sadar Bazar, Delhi, in the same locality. The application was resisted by the tenant on the ground that the tenant was a man of meagre means and had not taken any alternative accommodation. It was contended that the premises in dispute had been taken and was being used as a residence while the order premises was a shop where the tenant was carrying on tailoring business. The claim of tile tenant with regard to his means was contested by the landlady who filed an affidavit to the effect that the tenant, was carrying on business of textile commission agent and was working as such in Delhi, Bombay and Ahmedabad and was earning about Rs. 1,000.00 per month. In a rejoinder, the tenant filed affidavits of Ganga Das, Prem Cband, Dwarka Parsad and Bbarat Singh alongwith the certificates of two gazetted officers supporting the claim of the tenant that he was hardly able to earn Rs.100.00 'or Rs. 1,251.00 per month on account of tailoring business. The allegation that the tenant was carrying on business of commission agent was denied. By an order made on April 29, 1968, the competent authority refused permission holding that, on the material placed before the authority, the tenant was not earning more than Rs. 125.00 per month on account of tailoring business. It was further held that the tenant was residing in the premises in dispute with his family and was carrying on business in the other premises. On the landlady's appeal, the appellate authority set aside the order of the comptent authority and remanded the case for fresh decision. While the appellate authority did not advert to the question of the means of the tenant, it felt that the real issue was if the tenant had acquired the other premises before or after the demised premises. On remand the competent authority again refused permission holding that, on the evidence on record, he was satisfied that the premises in dispute had been taken almost six years after the other premises. It was further held that while the premises in dispute had been taken for residence, the other premises was a shop and could not, therefore, be said to be an alternative premises. On the question of status cf the tenant, the competent authority reiterated its earlier finding that the tenant was a tailor earning about Ks. 125.00per month and had to support a family of six persons and, therefore, would create slums if evicted. The contention of the landlady that the tenant was earning Rs. 1,000.00 per month as a textile commission agent was negatived. On appeal, the appellate authority has by the impugned order reversed the order of the competent authority and granted the necessary permission to the landlady. On the question of the availability of the alternative accommodation, the appellate authority has held, negativing the finding of the competent authority, that both the premises had been taken by the tenant at more or less the same time. It was further held that the availability of the accommodation would, therefore, not be a ground to permit the eviction of the tenant without reference to the status of the tenant. It was further found on the basis of the evidence that the tenant was using both the premises for residential purposes and that "he may or may not be using either or both of them for business purpose." On the question of status, the appellate authority negatived the contention of the tenant that he was a poor tailor earning Rs. 125.00 per month on the ground that the tenant had admittedly fought Municipal Corporation election in the year 1967 and could not have done so on the basis of the alleged income and that "it is also unbelievable that a tailor in Delhi would be earning only Rs. 125.00 per month when an ordinary labourer earns anything between Rs. 6 to Rs. 7 per day as daily wages." It was further pointed out that the contention of the tenant was, therefore, not acceptable "particularly when he and his wife have three tenancies in their favour", the third being a shop said to have been allotted to her in Rama Krishna Puram. The appel- late authority further observed that "it cannot be denied that the responsibility to establish that the respondent was a person deserving of the protection provided by the Slum Act solely rested on him" and that "his mere assertion without specifically disclosing and substantiating as to why, how and from where he earns only R?. 125.00 as an established tailor creates a presumption against the respondent who has, to my mind, failed to come out with clean hands to establish his status as be deserving of the protection under the Act." The appellate authority, therefore, held that "the respondent's income from the tailoring profession and other agency jobs that he dabbles in does not amount to less than Rs. 1,000.00 per month which amount I consider sufficient to provide the respondent with a status and the means to enable him to fend for alternative accommodation in case of his eviction being ordered from the demised premises." It was further held that even otherwise" with his having residential accommodation in premises No. 4284 and professional accommodation in the shop allotted to his wife in Rama Krishna Puram, this would not be a case where the respondent must necessarily create an alternative slum in case of his eviction from the demised premises birg ordered". During the pendency of the petition in this Court and in the absence of any stay of operation of the impugned order, the landlady filed an application for the eviction of the tenant and succeeded in obtaining an order for the eviction of the tenant from the Additional Rent Controller who, by his order of September 18, 1974 held that the tenant was liable to be evicted on the ground of personal bonafide need of the landlady. The Additional Rent Controller, however, returned the finding that the tenant could cot be said to have acquired any other residential premises nor had it been established that neither the tenant nor any member of his family has been staying in the premises in dispute for a period of six months prior to the filing of the petition as alleged by the landlady. The plea of eviction based on Section 14(1) (h) and 14(1) (d) of the Delhi Rent Control Act was, therefore, dispel- led. The order of the Additional Rent Controller has since been confirmed by the Rent Control Tribunal and a Second Appeal is said to be pending in this Court.

(3.) The first ground on which the impugned order is assailed on behalf of the petitioner is that it suffers from the fatal infirmity of being based on a wholly erroneous approach to the question of onus to establish the status and means of the tenant. It is contended that it was the landlady's application for permission to evict the tenant and it was, therefore, for the landlady to establish that the tenant was possessed of sufficient means and status so as to disentitle him to the protection of the Statute and that the onus shifts to the terant to establish by producing all such evidence as the landlady would ordinarily be in a position to do. It was further contended that in the present case no attempt was made by the landlady to produce any evidence with regard to the status and the means of the tenant apart from the vague and indefinite allegations in her own affidavit It was, therefore, contended that the observation of the appellate authority that the responsibility to establish that the tenant was a person deserving of the protection "solely rested on him" could not be justified.