ALI HASAN Vs. M S SHAMI

JUDGEMENT

(1.) The petitioner herein is a tenant of one room along with kitchen, latrine and small courtyard at the first floor of House No. 5195, situate at Sadar Thana Road, Ward No. XIV, Delhi, of which the second respondent herein is the landlady. The second respondent filed an application before the Competent Authority, under section 19 of the Slum Area (Improvement & Clearance) Act, 1956, for permission to institute a suit or other proceedings for obtaining a decree or order for the eviction of the petitioner from the premises in question. In that application, the second respondent put forward two grounds for obtaining an order of eviction against the petitioner, viz., non-payment of rent and the bona fids requirement for the occupation of the landlady. In that application, the second respondent further stated:

(2.) While the proceeding', were pending, the case was posted for arguments on 30th May, 1903. Ths second respondent on i9th May, 1966 filed an application requesting the Competent Authority to depute some good person who should all of a sudden visit the shop of the petitioner herein as well as his residential accommodation for reporting about the true facts. In support of this application, the second respondent stated that the petitioner had lour machines and all the four machines were worked by the employees of the petitoner and that unless somebody is deputed to inspect the shop of the petitioner and his residential accommodation, the true facts could not ba ascertained and ]usticrt could not be done. On this, the Competent Autority deputed his Head Clerk to inspect the shop of the petitioner, The Head Clerk .inspected the shop and made a report on 23ch May, 1936. According to this report, there were three pedestal sewing machines in the shop of the petitioner and they were worked by four persons, viz., the petitioner herein, two of his sons and another person byname Aziz. Ths report further stated that th3 father of the petitioner and a brother of the petitioner were having their two machines and were working on the footpath in front of another shop near the shop of the petitioner herein. The report also stated that according to ths ration card of the petitioner, there were 19 members in the family. After this report, the second respondent herein, on 3rd August, 1966, filed anothr application for another inspection. The Competent Autholity again directed his Head Clerk to make another inspection. The Head Clerk made the inspection and submitted a report dated 27th August, 1966 According to this report, there were four sewing machines (three pedestal and one hand machinel in the shop of the petitioner and at the timea of the inspection, the petitioner was working on one pedestal macl the and Aziz was working on another pedestal machine and a person who was also working a third pedestal machine left the premises soon after the arrival of the Head Clerk, without disclosing his name or parentage, under the direction of the petitioner. This report again brought out the fact that the father and a brother of the petitioner were working on the pavement as reported by him on the previous occasion. On 27th October, 1965 the Competent Authority pasted ths order granting the permission ap. plied for by the second respondent. The Competent Authority referred to the affidavits filed by the parties and the two reports of inspection of his Head Clerk and came to the conclusion that the version of the petitioner herein that he worked single handed was incorrect and the deposition of the second respondent herein that the petitioner herein had got four machines was true. He further observed : Apart from those four machines, two machines are operated by hi:; father and brother in front of the payement of the shop. It means that there are six machines in the respondent's shop. A tailor having six machines in his shop in the main Bazar cannot be considered a poor man. These machines are operated by his family members. According to the report of the Head Clerk, there was only one man named Aziz at the respondent's shop. Who does not appear to be the member of the respondent's family. The monthly income of a tailor having six machines in his shop and operated by his own family members may be between Rs. 800.00 or Rs. 1,000.00. The Respondent 1s, therefore, considered a man of good means to arrange alternative accommodatio like the present one. The permission applied for by the petitioner is, therefore, hereby granted." It is to quash this order of that Competeni Authority the present writ petition has been filed under Articles 226 and 227 of the Constitution of India. Shri M. Ahmad, the learned counsel for the petitioner, put forward two contentions in support of the prayer for the issue of a writ quashing the order in question. His first contention is that, when the Competent Authority, on the applications of the second respondent directed his Head Clerk to make a local inspection of the shop of the petitioner herein and submit a report, the petitioner herein was not given notice of the applications of the second respondent. After the Head Clerk inspected the shop and submitted the two reports, the petitioner filed two affidavits, one by the petitioner himself and the other by Aziz who was found to be in the shop by the Head Clerk. These affidavits were submitted to the Competent Authority on 30th September, 1966, but the Competent Authority returned these affidavits to the petitioner on 18th October, 1960, slating that he would not keep them on the file. The further case of the petitioner is that the counsel for the petitioner, on 19th October, 1966, presented these two affidavits along with an application and the Competent Authority received the application and the affidavits and wrote on it that it would be considered on 27th October 1966. Based on these allegations, the case of the petitioner is that the Competent Authority failed to take into consideration those affidavits which were in the nature of ob]'ecti')ns to the reports of the Head Clerk of the Competent Authority. In paragraph 13 of the petition, the petitioner states that he got the file inspected by his counsel en 19th December, 1966 and the inspection revealed that the application of the petitioner dated lath October, 1966 and the two affidavits submitted with it were not on the file. The second respondent in her reply in this writ petition denies that the petitioner ever filed the two affidavits. Under these circumstances, before the petitioner can put forward the contention that the Competent Authority failed to consider these affidavits, it must be established that those affidavatis were filed. The petitioner has alleged that he has filed the affidavits while the same has been denied by the second respondent. Ad Admittedly, the files do not contain either the affidavits or the petition said to havs been filed along with the said affidavits. Therefore, whether the petitioner filed any affidavits at all is in dispute. It is not possible for me in these proceedings under Articles 226 and 227 of the Constitution to go into that disputed question of fact. In view of this, I refect the first contention of the learned counsel for the petitioner.

(3.) As far as the second contention is concerned, I must point out that the final order of the Competent Authority proceeds on a number of mis apprhensions and misreading of the reports of the Head Clerk on which his conclu?ion rested. For one thing, the Competent Authority states that there are six machines in th3 petitioner's shop and a tailor having six machines in his shop in the main bazar cannot be considered a poor man. Thre was absolutely no evidence to show that there were six machines in the petitioner's shop. Both the reports of the Head Clerk showed that the father of the petitioner and a brother of the petitioner were working on the foot-path in front of another shop in the neighbour-hood of the petitioner's shop and the reports made it appear that those machines were their machines. Therefore, for the Competent Authority to come to the conclusion that the petitioner was having six machines in his shop and was working them is not warranted by the reports of the Head Clerk. Further, the reports of the Head Clerk clearly stated that the father of the petitioner and a brother of the patitioner were having their machines and were working on the foot-path in front of another shop, viz .shop No. 5202, while the shop of the petitioner herein had the No. 5192; on the other hand, the Competent Authority proceeded on the basis that the father and the brother were operating the two machines in front of the pavement of the petitioner's shop. One other mistake that has to be pointed out in this regard is that tha Competent Authority stated that according to the report of the Head Clerk, there was only one man named Aziz in the petitioner's shop, who did not appear to be the member of the petitioner's family. On the other hand, as pointed out by me already, on the second occasion when the Head Clerk inspected the shop when alone he found four machines, there was another man who was said to be working on a pedestal machine in addit ion to Aziz and that man went away after seeing the Head Clerk without disclosing his name or parentage under instructions from the petitioner herein. Thus, the Competent Authority drew t inference that the petitioner was a man of means who could acquire another accommodation, from the following facts:-