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Chiranji Lal v. Kailash Chand Jain .

Delhi High Court

Mar 8, 1982

Judgment

Subsequent
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Concise Analytical Summary of the Opinion (B.N. Kirpal, J.)

Factual and Procedural Background

This petition challenges the Competent Authority's order dated 17 July 1976, which granted the respondent landlord permission under Section 19 of the Slum Areas (Improvement and Clearance) Act to institute eviction proceedings against the petitioner (tenant).

The petitioner occupied premises No. 1571/30, Naiwala, Karol Bagh, New Delhi; respondent No. 1 was the owner. On 7 August 1974 the landlord filed an application under Section 19. The landlord alleged the tenant received Rs. 650 per month as a teacher, earned more than Rs. 200 per month from tuitions, had rental income of Rs. 250 per month, and owned two houses (one in Block D Laxmi Nagar said to be in the name of the tenant's wife as benami).

The tenant filed a reply raising a preliminary objection of res judicata, pointing out a prior similar petition dismissed by Shri D.K. Poddar on 22 December 1970 and an appeal dismissed by the Financial Commissioner on 5 February 1971. On the merits the tenant denied the alleged income and denied ownership of the Laxmi Nagar house (characterizing the landlord's pleadings as vague).

Both sides filed further affidavits. By order dated 17 July 1976 the Competent Authority found the present petition was not barred by res judicata (accepting that the tenant's status had improved since the earlier proceedings), accepted the landlord's assertion that the tenant's father lived with the tenant and drew salary, believed the tenant to be drawing Rs. 650 per month in the absence of salary certificate on record, found the occupied area to be 180 sq. ft. and concluded the tenant could obtain equivalent alternative accommodation without creating a slum; permission to institute eviction proceedings was granted.

Legal Issues Presented

Whether the Competent Authority's order dated 17 July 1976 granting permission under Section 19 of the Slum Areas Act to institute eviction proceedings was liable to be interfered with under Article 227 of the Constitution.
Whether the principles of res judicata barred the landlord's fresh application, or whether a material change of circumstances (increase in incomes and acquisition of rental property) rendered res judicata inapplicable.
Whether the income of the tenant's father could be legitimately "clubbed" with the tenant's income for the purpose of assessing ability to obtain alternative accommodation.
Whether the petitioner (tenant) had come to the Court with "clean hands" such that the Court should exercise its discretionary remedy under Article 227 to interfere with the Competent Authority's findings.

Arguments of the Parties

Respondent (Landlord)'s Arguments

Filed application under Section 19 alleging the tenant earned Rs. 650 per month as a teacher, more than Rs. 200 per month from tuitions, and rental income of Rs. 250 per month.
Alleged the tenant owned two houses; specifically that one house in Block D Laxmi Nagar was in the wife’s name as a benami of the tenant.
Contended that the earlier dismissed petition did not bar the present petition because the tenant's status had materially improved since the earlier decision.
Placed documentary evidence before the Court in reply to the present petition, including Municipal Corporation certificates (dated 11 December 1981 and 8 January 1982) and an extract from an Inspection Book indicating rent receipts for the Laxmi Nagar property.

Petitioner (Tenant)'s Arguments

Raised preliminary objection of res judicata based on an earlier application dismissed in 1970 and an appeal dismissed in 1971.
Denied earning Rs. 650 per month, denied receiving rental income or tuition income, and denied that his father lived with him or that the father's income should be counted.
Denied ownership (or connection) to the house at Laxmi Nagar and described the landlord's allegation as vague because no house number was given; later, in the proceedings before this Court, counsel for the tenant accepted that the house belonged to the tenant's wife.
Contended the Court should not look into the documents newly filed by the landlord (as to the tenancy/rental and salary certificates).

Table of Precedents Cited

The opinion refers to prior administrative orders (a dismissal by Shri D.K. Poddar and a dismissal by the Financial Commissioner) and to statutory provisions (Section 19 of the Slum Areas Act and Article 227 of the Constitution), but it does not cite any case-law precedents as authorities.

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court reviewed the Competent Authority's factual findings and the materials placed on record and proceeded in a stepwise manner:

Standard of review: The Court recognized that the Competent Authority's findings of fact are primarily factual determinations. The petitioner did not demonstrate that those findings were perverse or unsupported by the record.
Father's residence and income: The Competent Authority found the tenant’s father lived with the tenant and earned a salary. The Court upheld this finding because electoral roll entries listed the father's address as the premises in dispute (until deletion after the present petition was instituted) and because the landlord later produced a Municipal Corporation certificate dated 8 January 1982 describing the father as resident at the premises and showing his salary (Rs. 501.35). On that basis the Court held it was not wrong to take the father's income into account.
Res judicata and material change of circumstances: The Court accepted that res judicata applies in principle, but held that res judicata does not bar a fresh application where circumstances have materially changed since the earlier adjudication. The Competent Authority found—and the Court accepted—that there had been a material change: the tenant's and his father's salaries had risen (from Rs. 271 and Rs. 179 in the earlier petition to averments of Rs. 650 and Rs. 250 in the present petition), and the tenant had become a recipient of rental income through acquisition/building of two houses. Because these changed circumstances were established on the record (and further supported by certificates), the Court found the Competent Authority correct in holding res judicata inapplicable.
Documentary evidence of increased income and rental receipts: The landlord produced (a) a Municipal Corporation certificate dated 11 December 1981 showing the tenant’s salary as Assistant Teacher to be Rs. 1219.10 per month; (b) the Municipal Corporation certificate dated 8 January 1982 showing the father’s salary as Rs. 501.35; and (c) an extract from the Inspection Book indicating a monthly rent of Rs. 100 for House No. D-55, Laxmi Nagar with an owner described in relation to the disputed address. These documents supported the Competent Authority’s conclusions about the tenant’s capacity to obtain alternative accommodation.
Onus of proof and shifting burden: The Court reiterated the governing evidentiary pattern in Section 19 petitions: the initial onus is on the landlord (a light onus), and once discharged the burden shifts to the tenant to disprove the landlord's averments, particularly as to income (which lies more peculiarly within the tenant’s knowledge).
Clean hands / discretionary relief under Article 227: The Court emphasized that relief under Article 227 is discretionary and that the petitioner must approach the Court with clean hands. It found multiple instances of materially inconsistent and false statements by the tenant: earlier averments that the father was not earning and that the father lived with and was supported by the tenant; then later claims that the father had not lived with the tenant for many years; and denials as to ownership or link with the Laxmi Nagar house until documentary evidence was produced. The Court concluded the tenant had deliberately misled the Competent Authority and the Court and had not come with clean hands; that conduct militated against interference with the Competent Authority's findings.
Relevance of the Laxmi Nagar property's status: The Court noted that whether the Laxmi Nagar house was in an unauthorized colony was irrelevant; what mattered was that it generated income (reflected by a rateable value of Rs. 1080 and a stated monthly rent of Rs. 100), and that such income should be considered in assessing the tenant's means for alternative accommodation.
Conclusion on Competent Authority's order: Given the accepted documentary proofs, the accepted material change in circumstances, the shifting of burden, and the tenant's false or misleading statements, the Court found no infirmity in the Competent Authority's order and declined to interfere.

Holding and Implications

Holding: Petition dismissed.

Direct consequences and practical effect on the parties:

The petition challenging the Competent Authority's order of 17 July 1976 was dismissed with costs; counsel's fee of Rs. 250/- was awarded.
The Court declined to interfere with the Competent Authority's permission to the landlord to institute eviction proceedings under Section 19 of the Slum Areas (Improvement and Clearance) Act, thereby leaving that administrative permission intact as between the parties.

Broader implications:

The opinion did not announce or rely upon any novel legal precedent. It applied established principles regarding the effect of res judicata where circumstances have materially changed, the initial light onus on a landlord in Section 19 proceedings and the subsequent burden on the tenant, and the discretionary nature of relief under Article 227 requiring a petitioner to come with clean hands. No new precedent was set by this decision.

Show all summary ...

B.N Kirpal, J. (Oral):— In this 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. 1 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/- per month. It was also stated that he was earning more than Rs. 200/- per month from tuitions. Further contention of the landlord was that the tenant had a rental income of Rs. 250/- 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. 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/- 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/- 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.”

3. 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/- 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.

4. 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. 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.

5. 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 the earlier petition the salary of the tenant was Rs. 271/- and that of his father was Rs. 179/-. In the present petition the averment was that the salary of the petitioner was Rs. 650/- and that of his father Rs. 250/-. 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.

6. 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 the tenant'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/-. 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.”

7. 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 willing 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. 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, lies 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. 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. 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/-. In fixing the rateable value the actual monthly rent which is received is stated to be Rs. 100/-. 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.

9. For the aforesaid reasons the petition is dismissed with costs. Counsel's fee Rs. 250/-.

10. Petition dismissed.