Delhi High Court
Rattan Chand vs Ujjagar Singh And Ors. on 20 January, 1987
Equivalent citations: 31(1987)DLT222
JUDGMENT Sunanda Bhandare, J.
(1) This petition under Article 227 of the Constitution of India is directed against the order of the Competent Authority under the Slum Areas (Improvement & Clearance) Act whereby the application of the respondent under Section 19(i)(a) of the Slum Areas (Improvement & Clearance) Act for seeking permission to institute eviction proceedings against the petitioner from property no. XV/1708-1709, Partap Street, Chuna Mandi, Paharganj, New Delhi was allowed.
(2) Apart from the income which was available to the petitioner from his pension and the typing work which he did, three other factors which weighed with the Competent Authority to pass the impugned order were ; (1) that the earning children of the petitioner had not declared that they were separate from their father and, therefore, their income had to be taken into account before determining the means available with the petitioner-tenant ; (2) the petitioner who was appointed as a guardian of minor Jia Rani who had a title in property no. XV/5090, Main Bazar, Paharganj, New Delhi for which Jia Rani was awarded some damages which was available for the use of the petitioner; and (3) the petitioner had acquired accommodation near Paharganj, New Delhi which he later on vacated and owned another property no. C-893 (T/ll4), Gurdwara, Peshawarian Road, Motia Khan, Delhi for which he was entitled to get rent or in any event that alternative accommodation was available to him.
(3) It was admitted by the learned counsel for the petitioner that at the time the impugned order was passed the daughter of the petitioner was living with him. This daughter working with the C.G.H.S. However, the son though was not separated from the petitioner was not living with the father and he was not in a position to send any money to the petitioner and, therefore, the income of the son was not available to the petitioner. It was, therefore, contended that the income of the daughter of the petitioner was available to him and the Competent Authority had not calculated all the income that was available with the petitioner and had not ascertained how much amount the petitioner would have to pay if he had to hire equal area of alternative accommodation. Learned counsel relied on Smt. Raj Rani v. Amar Nath & Others, in support of his contention that a formula has been approved by this Court which had to be followed and even assuming the daughter's income is taken into account, as per this formula sufficient funds were not available with the petitioner to acquire alternative accommodation. As regards the damages received by the petitioner being the guardian of Jiya Rani it was submitted that these damages belong to the minor and they were not available for the use of the petitioner and, therefore, this fact should not have weighed with the Competent Authority while passing the impugned order. As regards the property at Motia Khan, Delhi, learned counsel submitted that though the petitioner had owned property no C-893 (T/114) Gurudwara Peshawarian Road. Motia Khan, Delhi after the impugned order was passed, the Delhi Development Authority demolished the property in question and, therefore, the premises at Motia Khan, Delhi was also not available to the petitioner.
(4) On 22-10-1986 it was submitted by the learned counsel for the respondent that though the son of the petitioner was posted out of Delhi, he had in fact not separated from the petitioner and even his income was available to the petitioner. It was further submitted that the daughter of the petitioner was unmarried and her income was also rightly taken into account by the Competent Authority while determining the means of the petitioner. As regards the property at Motia Khan, Delhi it was submitted that though it is true that subsequently this property was demolished, alternate site has been given to the petitioner by the Delhi Development Authority at Mayapuri and the petitioner has given a portion of the premises at Mayapuri on rent to a garment factory. It was, therefore, submitted that the petitioner is a man of means and if evicted from the premises in question, be is not likely to create a slum.
(5) On consideration of the rival submissions of the parties and perusal of the record I find that apart from the income of the petitioner from pension and typing work while ascertaining the means of the petitioner a categorical finding is given that apart from the Motia Khan property and damages received as a guardian of Jiya Rani the income of two wards was available to the petitioner, nowever the total amount available with the petitioner for securing alternative accommodation on the basis of the formula approved by this Court for residential purposes i e. a tenant is required to spend at the rate of 35 paise per square feet per month to secure alternative accommodation in non slum areas and he is not expected to spend more than 10 to 12% of his earning towards accommodation, has not been determined. Though a finding giving exact amount available with the tenant may not be possible, a finding of approximate estimate of the amount available with the tenant to secure alternative accommodation ought to be given. In the present case, I find that the Competent Authority had rightly considered all the circumstances and factors to come to a conclusion that the petitioner was a man of means but has not given any finding giving even approximate estimate of the percentage of the amount that would be available with the petitioner to get equivalent alternative accommodation. The impugned order cannot be sustained on this ground alone. Though there may be certain subsequent events regarding the Motia Khan property since it is not disputed by the petitioner that when the impugned order was passed the petitioner owned the said property and had rented it to a tenant, the subsequent events are not necessary to be considered now.
(6) In the result the petition is allowed. The order of the Competent Authority dated 25-10-1972 is set aside. The case is remanded back to the Competent Authority to ascertain the approximate amount available with the petitioner at the time the impugned order was passed and what percentage of that amount would be required to get equivalent alternative accommodation in a non-slum area and whether following the formula approved by this Court in the case of Smt. Raj Rani (supra) decide whether the petitioner if evicted from the premises was likely to create a slum and then grant or refuse permission according to law. This being an old case, the Competent Authority is directed to dispose the case within six months from today. Trial court records be sent down immediately. No costs.