CHIRANJI LAL v. KAILASH GHAND JAIN — 1982 DIGILAW 64 (DEL)

B. N. Kirpal, J. (Oral) ( 1 ) IN ts petition the challenge is to the order dated 17th July, 1976 whereby the Competent Authority (Slum) gave permission to the respondent-landlord under Section 19 of the Slum Areas (Improvement and Clearance) Act to institute eviction proceedings against the petitioner-tenant. ( 2 ) THE petitioner is a tenant of premises No. 1571/30, Naiwala, Karol Bagh, New Delhi. Respondent No. 1 is the owner of the said premises. On 7th August, 1974 respondent No. I had filed an application under Section 19 of, the Slum Areas Act. It was, inter alia, contended that the tenant was a teacher in the School of the Municipal Corporation of Delhi and getting Rs. 650. 00 per month. It was also stated that he was earning more than Rs. 200. 00 per month from tuitions. Further contention of the landlord was that the tenant had a rental income of Rs. 250. 00 per month and that he was a man of means and that two houses were owned by the tenant. It was specifically stated that one house in Block D Laxmi Nagar, Shahdara, Delhi belonged to the tenant but was in the name of his wife as a benami. ( 3 ) REPLY to the petition was filed. Preliminary objection was raised to the effect that earlier a similar petition had been filed and the same had been dismissed by Shri D. K. . Poddar on 22nd December, 1970. The appeal against the same was dismissed by the Financial Commissioner on 5th February, 1971. It was contended that on the principles of res judicata the present petition was not maintainable. On merits, the submission of the tenant was that he was not a man of status. It was stated that he was not getting Rs. 650. 00 per month and nor was he earning any rental income and nor was he getting any tuition fee. Whereas in the application fixed by the landlord it had also been contended that the father of the tenant was living with him and was getting a salary of Rs. 250. 00 per month from the M. C. D. , in the reply the tenant stated that his father was not living with him and his income could not be taken into consideration. 250. 00 per month from the M. C. D. , in the reply the tenant stated that his father was not living with him and his income could not be taken into consideration. With regard to the ownership of the house the specific plea of the tenant was as follows : "the respondent has not built two houses in his own name and in the name of his wife as benami alleged. Moreover, the para is vague as no number of the alleged house is given. " ( 4 ) AFFIDAVITS of further witnesses were filed by both the sides. By order dated 17th July, 1976 the Competent Authority held that the petition was not barred on the principles of res judicata. He came to this conclusion because the landlord had alleged that subsequent to the dismissal of the earlier application the status of the tenant had improved. The Competent Authority further held that the father of the respondent was staying with him and he was drawing a salary of Rs. 300. 28 per month. He also held that the tenant had not produced any certificate on the record which show as to what was his salary. In the absence of the said certificate the Competent Authority believed the averment of the landlord which was to the effect that the tenant was getting a salary of Rs. 650. 00 per month. The Competent Authority held that the area which was in the occupation of the tenant was 180 sq. ft. and he could get the same amount of alternative accommodation without creating a slum. The permission to institute eviction proceedings was accordingly granted. ( 5 ) THE aforesaid decision is sought to be challenged in the present petition. The first contention of the learned counsel is that the income of the father has been wrongly clubbed with that of the son. This is essentially a question of fact. The finding of fact of the Competent Authority is not shown to be perverse or not flowing from the evidence on record. Even otherwise I find that the decision of the Competent Authority on this point was correct. It will be seen that in the electoral roll the address of the father was given as that of the premises in dispute. The father s name was deleted only after the present petition under Section 19 had been instituted. Even otherwise I find that the decision of the Competent Authority on this point was correct. It will be seen that in the electoral roll the address of the father was given as that of the premises in dispute. The father s name was deleted only after the present petition under Section 19 had been instituted. What clinches the matter is a certificate which has now been produced by the landlord in reply to this petition. Along with the reply the landlord has placed on record a certificate dated 8th January, 1982 issued by the Municipal Corporation of Delhi. This certificate describes the father of the tenant as being a resident of the premises in dispute. This certificate also states that the father is drawing a salary of Rs. 501. 35 per month. The conclusion of the Competent Authority to the effect that the father was living with the tenant and that his income is also to be taken into consideration cannot be stated to be a wrong conclusion. In any case it is not a conclusion which can be challenged by way of a petition under Article 227 of the Constitution. ( 6 ) IT was then contended that the present application which was filed under Section 19 of the Act was barred on the principles of res judicata. It has not been disputed that principles of res judicata do apply. It was, however, the case of the landlord that the said principles would not be attracted if it can be shown that after the decision of the earlier petitioner or its institution the circumstances have materially changed. This proposition of law, which is so canvassed by the learned counsel for the landlord, is not denied by Shri Mishra. What is, therefore, to be seen is whether there has been a change in the circumstances after the filing of the earlier petition. The change of the circumstances is evident on the face of the record. At least the allegations are, and which allegations have been accepted to be true, that the income of the tenant as well as his father has gone up and moreover, what is most important, the tenant is getting rental income as he has built/acquired two houses in Delhi. In my view the decision of the Competent Authority that one the principles of res judicata the petition is not barred is a correct decision. In my view the decision of the Competent Authority that one the principles of res judicata the petition is not barred is a correct decision. In the earlier petition the salary of the tenant was Rs. 271. 00 and that of his father was Rs. 179. 00. In the present petition the averment was that the salary of the petitioner was Rs. 650. 00 and that of his father Rs. 250. 00. There was thus an increase in salary which was being drawn. In addition thereto it was also pleaded that the tenant was getting rental income. It is clear, therefore, that because of the change in the circumstances the principles of res judicata are not applicable. ( 7 ) ALONG with the affidavit in reply, the landlord has placed on record a certificate dated 11th December, 1981 issued by the Municipal Corporation of Delhi. This shows that the salary of the tenant as Assistant Teacher, which he is drawing, is Rs. 1219,10 per month. This shows a substantial increase in the emoluments of the tenant. As already noted the salary of thetenant s father, as is evident from the certificate dated 8th January, 1982, is Rs. 501. 35. In addition thereto the landlord has placed on record a copy of an extract from the Inspection Book of the Municipal Corporation of Delhi. This shows that the owner of the House No. D-55, Laxmi Nagar was getting a monthly rent of Rs. 100. 00. The name of the owner is not given but the description of the owner is as follows : "the owner C/o Sh. Charanji Lal, 1571/30, Nai Wala, Karol Bagh, New Delhi-5. "before me originally the contention of Shri Mishra was that this house does not belong to the tenant. On my enquiring as to whether the tenant would be wiling to make such a statement on oath in Court today, Shri Mishra, under instructions, stated that the said house belongs to the wife of the petitioner. It will be seen that this was never admitted by the tenant in his written statement. Till today the tenant had never admitted that he or his wife had anything to do with this house. It is only when the aforesaid document had been placed on record that the said admission has been made. It will be seen that this was never admitted by the tenant in his written statement. Till today the tenant had never admitted that he or his wife had anything to do with this house. It is only when the aforesaid document had been placed on record that the said admission has been made. Shri Mishra, however, contends that this Court cannot look into these documents which have been filed, ( 8 ) IN a petition under Article 227 of the Constitution the petitioner must show that he has come to the Court with clean hands. The remedy under Article 227 is a discretionary remedy. The Court is not bound to exercise its discretion if it comes to the conclusion that the petitioner has not come with clean hands. When a petition under Section 19 is filed, the initial onus of proof, it is now well settled, lics on the landlord. That onus is very light. Once that onus is discharged then the same shifts to the tenant. What is the income is within the special knowledge of the tenant. Once the landlord has averred that the income of the tenant was sufficient to provide him with alternative accommodation and a figure is indicated, then, thereafter, it is for the tenant to prove to the contrary. In the present case when the earlier petition was filed the case of the tenant in his reply was that his family consisted of 7 members including his father and that no other member of the family was earning. The implication clearly was that he was maintaining his father who was not earning. It cannot now be disputed that this averment, namely, that the father was not earning, was palpably false. It will further been seen that, whereas in the reply to the earlier petition the tenant had stated that his family consisted of 7 members including the father whom he was supporting, but in the reply to the present petition the case of the tenant was that the father was not living with him "for the last many years". This statement is again false Not only is this contradictory to the earlier avernment which had been made, but the voters register of the year 1975 showed the father as being resident of the premises in dispute. This statement is again false Not only is this contradictory to the earlier avernment which had been made, but the voters register of the year 1975 showed the father as being resident of the premises in dispute. Moreover, in the certificate of the Municipal Corporation, which has been issued on 8th January, 1982, the residential address of the father is shown as that of the premises in dispute. Another false statement which has been made by the tenant Was that the house at Laxmi Nagar does not belong to his wife. Today it has been admitted that she is the owner of the house. It is immaterial as to whether she is benamidar of her husband or not. What is material is that the tenant tried to mislead the Competent Authority, and this Court, and tried to hide his correct income. Under these circumstances reference to the documents which have now been filed becomes relevant and taking those documents into consideration the only conclusion which can flow is that the petitioner has deliverately tried to mislead the Competent Authority and this Court and has not come to the Court with clean hands. I am, therefore, not inclined to interfere with the findings of the Competent Authority in this petition. ( 9 ) IT was also contended that the house in the name of the wife is situated in an unauthorised colony. That is not relevant. What is relevant is that there is income which is flowing from that house and which income has to be taken into consideration in order to find out whether the tenant has adequate means to meet an alternative accommodation or not. This income was not disclosed by the tenant earlier. It is only now that it has been admitted that the premises have been let out. Shri Mishra States that the wife of the petitioner is not getting any rent from there. This again I am unable to believe. The certificate from the Municipal Corporation shows that the rateable value has been fixed at Rs. 1080. 00. In fixing the rateable value the actual monthly rent which is received is stated to be Rs. 100. 00. Shri Mishra States that the wife of the petitioner is not getting any rent from there. This again I am unable to believe. The certificate from the Municipal Corporation shows that the rateable value has been fixed at Rs. 1080. 00. In fixing the rateable value the actual monthly rent which is received is stated to be Rs. 100. 00. I am of the opinion that the total income which is being received by the petitioner and members of his family who are living with him, namely, his wife and father, is more than sufficient to enable him to find an alternative accommodation. I do not find any infirmity in order of the Competent Authority. ( 10 ) FOR the aforeiaid reasons the petition is dismissed with costs. Counsel s fee Rs. 250. 00.