PADAM NARAIN v. G. C. JAIN — 1983 DIGILAW 307 (DEL)

H. L. ANAND ( 1 ) THIS petition under Art. 227 of the Constitution arises out of proceedings for leave to execute an eviction order made in November, 1963 and the proceedings between the parties have had a rather chequered career. ( 2 ) THE premises in dispute consisting of first floor, comprising one room, two small tin sheds, a verandah covered by a tin shed, and a courtyard called a terrace, and forms (art of house No. VHI/963, Kucha Pati Ram, Bazar Sita Ram, which was purchased by Bakshish Singh and Ran Singh Rana in February 1956. Padam Narain and bis brother Santosh Narain had been in occupation of the first floor as tenants since before the purchase. The owners sought ejectment of the tenants in February, 1959, but failed in the attempt. Fresh proceedings for the ejectment of the tenants waa filed in November, 1963 on the ground at personal need and an order of ejectment was made by the then Rent Controller on November 4, 1963. The landlord sought leave to execute the ejectment order but the Competent Authority turned down the plea by an order of August 11, 1965. The order of the Competent Authority was upheld in appeal by the then judicial secretary, acting as the Appellate Authority in 1969. The owners moved this Court under Art. 227 of the Constitution being Civil Writ Petition No. 1382/67. The appellate order was set aside and the proceedings were remanded to the Competent Authority. Before the appellate authority, however, the owners withdrew the petition for leave to execute the order. In December, 1967, the owners filed a fresh petition for leave and by an order of October 10, 1975 the Competent Authority granted leave. The present petition was filed by the tenants on November 11, 1975. ( 3 ) THE competent authority considered the question if the tenants were persons of sufficient means and status so as to be able to acquire alternative accommodation, within their means, without creating slum elsewhere. It found that one of the tenants Padam Narain, who was in the employment of a private company, has since retired and the question of taking into account his income did not arise. It found that one of the tenants Padam Narain, who was in the employment of a private company, has since retired and the question of taking into account his income did not arise. The Competent Authority, however, found that the son of Padam Narain was, nevertheless, an earning member and came to the conclusion that the income of Santosh Narain and son of Padam Narain worked to Rs. 1,322. 00 p. m. The Competent Authority further found that the covered area of the premises in dispute was about 421 sq. ft. and that the tenants could acquire an alternative accommodation of equal size for Rs. 147. 35 p. m. at the rate of 35 p. per sq. ft. and that the tenants Were, therefore, in a position to acquire alternative accommodation within their means without creating slum. . The Competent Authority, however, did not devote any attention to the question as to the total members of the family of the brothers and as to how much they would require for their sustenance in deciding the question before it. ( 4 ) DURING the pendency of the petition in this Court, Santosh Narain died in April, 1976. One of the owners. Bakshish Singh, also died in 1978. In 1979, the surviving tenant and the legal representatives of his deceased brother sought to implead the legal representatives of Bakshish Singh but their plea was turned down by M. L. Jain, J. , by an order of February 5, 1980, on the ground of delay. The proceedings continued to be opposed on behalf of the surviving owner Ram Singh Rana. By the time the petition came up for final hearing, there have been fresh events and further changes in the situation and fortunes of both sides. In the course of arguments, Counsel for the parties made repeated references to the various changes and the subsequent events in an attempt to seek a favourable decision on the basis of one or the other of these changes and events. In the course of arguments, Counsel for the parties made repeated references to the various changes and the subsequent events in an attempt to seek a favourable decision on the basis of one or the other of these changes and events. While the owner was naturally anxious that whatever subsequent events had taken place since the filing of the petition in 1975 should be brought on record, so that a fresh trial of the original proceedings may be obviated, particularly, in a situation where the owner had initiated proceedings for the ejectment of the tenant as early as the year 1959 and were still nowhere near achieving the fruit of their labour. The owner was, therefore, willing to file an affidavit giving what he considered to be the material changes in the situation of the parties during the years that the proceedings have been pending. There was, however, some reluctance on the part of the petitioners to bring on record these changes even though the material changes were alleged to have occurred in the situation of the petitioners families, both in the matter of their total membership, the acquisition of property, and their status. After hearing learned counsel for the parties on the various questions in controversy, I made an order on March 17, 1983 that the parties may file affidavits, subject to their pleas, setting out the subsequent events, which may have changed the context and should be taken into account in moderating the relief, should the Court be inclined to grant it. An affidavit was filed on behalf of the owner setting out the subsequent events and the changes brought about in the situation. No affidavit was, however, filed on behalf of the petitioners. They, however, sought leave to file a counter-affidavit. A counter-affidavit was accordingly filed on behalf of the petitioners. Both the parties filed two further affidavits on the same subject. I heard the matter afresh in the context of the material brought on record with regard to the changes in the situation of the parties, notably that of the petitioners. ( 5 ) AS for the finding of the Competent Authority in the situation obtaining in 1975, there was considerable controversy if the Competent Authority had correctly computed the income at Rs. 1,322. 00, clubbing the salary of Santosh Narain and that of Umesh Narain son of Padam Narain. ( 5 ) AS for the finding of the Competent Authority in the situation obtaining in 1975, there was considerable controversy if the Competent Authority had correctly computed the income at Rs. 1,322. 00, clubbing the salary of Santosh Narain and that of Umesh Narain son of Padam Narain. But it is unnecessary to deal with this aspect because it is patent on the face of the order that the Competent Authority voted no consideration whatever to the important question as to the total number of members of the two branches of the family, and as to whether the family could afford a worthwhile alternative accommodation within its means having regard to what the family would require for its bare sustenance. There was also considerable controversy if a residential premises could be available in 1975 on the basis of 35 p. , per sq. foot. But this also is an aspect which need not be considered because it was not disputed that there were 12 members in both the branches of the family of the petitioners and it is just not possible for such a large family to look after their immediate needs within the aforesaid income and yet be able to spend about Rs. 150. 00 on the alternative accommodation assuming that such accommodation could be obtained within the amount without creating further slum. It is good to remember in this context that the contractual rent of the premises has been Rs. 12. 00 only. The order of the Competent Authority, therefore, patently suffers from a fatal infirmity in that, it completely ignored a material consideration in determining the question if the tenants could make alternative arrangements within their means without creating slum elsewhere. What makes it worse is that on the material date, these 12 persons were supposed to be staying in meagre accommodation which according to the competent authority was 421 sq. ft. , and according to the plan comprised of one room, two small tin sheds, a verandah covered by a tin shed and a courtyard or a terrace. But even if a family of 12 members must continue to live in a premises, which is not more than 421 sq. ft. in area, it is difficult to imaginethat the tenants could afford it with the limited means that they are found to have. But even if a family of 12 members must continue to live in a premises, which is not more than 421 sq. ft. in area, it is difficult to imaginethat the tenants could afford it with the limited means that they are found to have. On this view of the matter, the order of the competent authority would have to be quashed. It is perhaps on account of this compulsion, as also because it has been a long struggle for the owners to get rid of the tenants that the petitioners were not only sought to be non-suited on the ground of abatement of the petition ths order for leave was sought to be justified in the changed circumstances of the petitioners. ( 6 ) ON the first of these contentions, it was urged on behalf of the owner that the petition to implead the legal representatives of Bakshish Singh having been dismissed by M. L. Jain, J. by an order of February 5, 1980, the petition stood abated and does not survive thereby entitling ths owner to avail of the order, sought to be challenged in the petition. There is, however, no force in this contention. The present proceedings under Article 227 of the Constitution are not regulated by the. Civil P. C. Section 141 of the Code itself excludes from the operation of the Cods proceedings in this Court under Article 226 of the Constitution. The position of proceedings in this Court under Article 227 could not be different. These are proceedings in exercise of the power of superintendence of this Court. The ejectment order was no doubt in the nature of a joint decree for the benefit of both the owners of the property. The proceedings in this petition were, however, continued by the surviving owner, who was capable of representing the estate of the deceased owner and protecting the interest of the estate of the deceased. The tenants no doubt made a delayed attempt for substitution but their plea was turned down. The proceedings were contested by the surviving owner for the benefit of not only himself but also of the estate of the deceased owner. There was, therefore, no question of abatement. The tenants no doubt made a delayed attempt for substitution but their plea was turned down. The proceedings were contested by the surviving owner for the benefit of not only himself but also of the estate of the deceased owner. There was, therefore, no question of abatement. This may constitute a technical irregularity in the proceedings but that would not affect the validity of the proceedings as, in the peculiar circumstances of this case, no prejudice could have been caused as the estate has been of Bakshish Singh. The interest of the estate has been adequately protected by the surviving owner. Moreover, the additional affidavits brought on record bear out that the legal representatives of Bakshish Singh have been residing in a part of the property and they would not be unaware of the pendency of the present proceedings, particularly, where the counsel, who appeared for the owners at the earlier stages, has since continued to appear for the surviving owner. One of the legal representatives of Bakshish Singh is said to be a Chartered Accountant and has not taken steps to be formally added as a party and I would not be surprised if he has stayed away from these proceedings to take advantage of the technical irregularity in view of the order declining substitution. ( 7 ) THAT leaves for consideration the question as to the changes in the situation of the family of the tenants. Santosh Narain and Padam Narain, the tenants, were brothers. It has already been pointed out above that Santosh Narain died in April, 1976. In his affidavit of April 11, l983 ( one of the respondents, Ran Singh, pointed out that Smt. Santosh Narain, widow of late Santosh Narain, has since built a house, bearing Municipal No. 383/6, New Azad Nagar, Delhi. This is said to be a double- storeyed house and each storey comprises of 3 rooms apart from Kitchen, Bathroom, latrine. It is further alleged that Smt. Santosh Narain has been residing along with her children on the first floor of the house for the last 3 years and that she had let out the ground floor of the property on a rental of Rs. 600. 00 per month. It is further alleged that on the death of Santosh Narain, she got about Rs. 1,25,000. 00 from the L. I. C. on account of gratuity and provident fund etc. 600. 00 per month. It is further alleged that on the death of Santosh Narain, she got about Rs. 1,25,000. 00 from the L. I. C. on account of gratuity and provident fund etc. and an additional sum of Rs. 60,000. 00 on the life insurance of the husband. It is further alleged that the other brother, Padam Narain, has four sons Dinesh Narain, Umesh Narain, Naresh Narain L. I. C. (?) and also carries on sale of lottery tickets, owns a scooter, is married and his income is said to be not lass than Rs. 1,500. 00 per month. It is further alleged that Umesh Narain works with. Apollo Tyres at a salary of Rs. 1,500. 00 p. m. and also owns a motorcycle. Naresh Narain is said to be employed in J. K. Tyres at a salary of Rs. 1,100. 00 p. m. and Ramesh Narain is stated to be in the employment of Bharat Steel and Alloys Ltd. , at a salary of Rs. 800. 00 p. m. It is further alleged that Naresh and Ramesh are still bachelors. In reply to this affidavit, the tenants have filed the affidavit of Padam Narain. According to this affidavit, the affidavit of Ran Singh "does not contain true and correct facts. " The deponent further states that Smt, Santosh Narain "has been residing both in the premises in dispute as well as at New Azad Nagar, Delhi". There is, however, no specific denial that the New Azad Nagar house belongs to Smt. Santosh Narain and that part of it has been let out. There is a general denial of the allegations with regard to the amounts alleged to have been received by her from the L. I. C. but these allegations are not specifically denied. Padam Narain, however, admits that his family comprises himself, his wife, four sons, two daughters-in-law and one grand-child. The deponent further pleads that this Court should not allow the respondent "to lead any additional evidence regarding the alleged income as the same is not permissible". Ran Singh has filed an affidavit by way of rejoinder and this is of May 12, 1983. In this affidavit, he has reiterated the allegations made in the earlier affidavit and it is stated that these allegations were made after full verification of the facts. Subsequently, Padam Narain filed another affidavit of May 23, 1983. Ran Singh has filed an affidavit by way of rejoinder and this is of May 12, 1983. In this affidavit, he has reiterated the allegations made in the earlier affidavit and it is stated that these allegations were made after full verification of the facts. Subsequently, Padam Narain filed another affidavit of May 23, 1983. In this affidavit, Padam Narain has sought to give additional material with regard to the changes in the circumstances of the owners as well as the tenants. The burden of one part of the affidavit is that by lapse of time the owners do not need any additional accommodation, which may justify an eviction order. As regard his own family, Padma Narain states that his sons are not maintaining him and are running their separate kitchen and that it is difficult for the sons to support him and his wife as they support their own families. It is further alleged that income of the sons is "very meagre". In para 7 of the affidavit, Padam Narain gives the incomes of the four sons as under:it is further stated that while Naresh and Ramesh are bachelors, Dinesh and Umesh are not only married but Dinesh also has one daughter. It is further alleged that there is a "quarrel" between the heirs of Bakshish Singh and Ran Singh, the owners, and that they were "negotiating for the sale of the house for the purposes of distributing the sale price among themselves. " In another affidavit of May 23, 1983, Ran Singh has reiterated the averments made in the earlier affidavit with regard to the situation, status and income of the members of the tenants family. To this affidavit, a further affidavit was filedby Padam Narain. This is of July 18, 1983. This affidavit is, by and large, devoted to the question as to whether the need of the owners, forming basis of the eviction order, survives or not These averments were made on the basis that if the subsequent events in the. situation of the tenants and their status could be taken into account the Court would also be entitled, as indeed, bound to take into account the change in the situation of the owners qua the justification for the eviction order. It is pointed out that the eviction order was based on the need of Bakshish Singh and members of his family. It is pointed out that the eviction order was based on the need of Bakshish Singh and members of his family. Bakshish Singh, his wife and his mother have since expired. What had also weighed with the controller was the fact that the third son of Bakshish Singh was employed as a Mechanic at a meagre salary and could not afford a separate residence with his wife and one child. Padam Narain points out that his third son has since constructed a house being No. H/36, New Govindpura, Chander Nagar, Delhi in the name of his wife and part of the premises had been let out. It is further pointed out that the only son of Bakshish Singh, who needs accommodation, is B. S. Dhadwal, a Chartered Accountant who is already occupying sufficient space in the rest of the house. The other owner Ran Singh had no personal requirement because his plea for ejectment on the ground of his personal need had been turned down earlier. It is further pointed out that it is Ran Singh who had been pursuing the proceedings for the benefit of the heirs of Bakshish Singh. It is further pointed out that the house in dispute consists of three floors. In 1956, there were 16 rooms on the ground floor, 5 rooms and 5 tin-sheds on the first floor and a tin-shed on the second floor. It is pointed out that three rooms on the ground floor have since been converted by the owners into two shops and one godown which had been rented out. It is further pointed out that in the ground floor itself there are 5 rooms and one big verandah which have been got vacated and are being occupied by the owners, besides a big courtyard. It is further pointed out that the other 8 rooms are in the possession of three tenants and the proceedings for the ejectment of the other two tenants are pending at various stages in Courts. It is further pointed out that in the first floor, there are 11 rooms, including rooms covered by tinsheds, and Padam Narain is in occupation of only one room and two tin-sheds on the first floor and the rest are in the occupation of B. S. Dhadwal and a tenant Gopal Krishan. It is further pointed out that Ran Singh is settled in Punjab and visits Delhi occasionally. It is further pointed out that Ran Singh is settled in Punjab and visits Delhi occasionally. It is further alleged that on the ground floor, a room has been constructed by the owners and is also in their occupation. It is pointed out that in view of the changes in the situation of the owners, the need for additional accommodation, which formed the basis of the order of eviction does not survive. ( 8 ) IT thus appears that while the impugned order of the Competent Authority suffers from a fatal infirmity in that the Competent Authority failed to devote any attention to the question as to the membership of the family of the tenants and their requirement of sustenance, it would be unfair to quash the proceedings initiated by the owners, as distinct from the impugned order, in view of the rather drastic changes that are said to have occurred by lapse of time in the status, fortunes and situation of the different members of the family of the petitioners. It has also been a rather long struggle of the owners to evict the tenants, the proceedings for eviction having been filed as early as the year 1959. There is, however, considerable force in the contention of the petitioners that even so present proceedings would not be a proper forum for the detrrmination of the extent and impact of these changes and that the factum and effect of these changes should better be left to be determined by the Competent Authority, after giving reasonable opportunity to the parties of being heard in relation to it. No doubt, there have also been changes in the content in which the owners had successfully sought an eviction order, and some of these changes were not seriousiy disputed, as indeed they could not be, on behalf of the petitioners, but (here is substance in the contention of the petitioners that these changes and their impact could not be determined either by this Court in the present proceedings or even by the competent authority in the proceedings which were initiated with a view to seek leave to execute an order of eviction. There can be hardly any controversy that the competent authority under the Slums Act would not be concerned either with the propriety or the correctness of an order of eviction sought to be executed or with the question if the situation in which the eviction order was made had changed so as to justify refusal to grant leave to execute the order. The competent authority, as indeed this Court, while dealing with an order made in any such proceedings, could not be treated higher than an execution Court and the only question that could perhaps be agitated in such proceeding by way of a defence, touching the validity of the order of eviction, would be on the basis that on account of total want of jurisdiction or some other fatal infirmity the eviction order was a nullity. This is so because such a defence could be set up at any time and anywhere, and even in collateral proceedings. The petitioners would, however, be at liberty to seek relief against the order of eviction on the ground of change in the situation of the owners in such further proceedings as may be available to them. For all these reasons I would quash the order of the competent authority, but not the proceedings in which it was made. The matter is remanded to the competent authority with the direction that the competent authority would determine the question before it in the context of the latest situation of the petitioners after giving reasonable opportunity to the parties of being heard in relation thereto. The competent authority would also send notices of the further proceedings to the legal representatives of Bakshish Singh, deceased. The competent authority would decide the question before it within a period of three months from the commencement of further proceedings. The record of the competent authority would be forthwith transmitted to that Authority. The petitioners would be at liberty to seek such relief in relation to the eviction order in such appropriate proceedings as may be competent in law. In the peculiar circumstances of this case parties would bear their respective costs.