Anil Dev Singh,J. - (1.) This is a Civil Misc.(Main) against the order of Financial Commissioner, Delhi dated November 12, 1984. By that order, learned Financial Commissioner granted permission to the first respondent for the execution of the decree of eviction passed by the Civil Court against the petitioner in respect of plot bearing No.7199, 7200 and 7201, Sadar Bazar, Delhi and set aside the order of the Competent Authority dated January 19,1984 whereby it had directed the first respondent to get the plan of the proposed building, which he intended to raise on the disputed land, approved by the civic body for the purpose of getting permission under Section 19 Slum Areas (Improvement and Clearance) Act, 1956. The facts giving rise to the petition are as under:-
(2.) The Delhi Improvement Trust agreed to sell land measuring 5826 sq. ft. comprised in Municipal Nos.7199, 7200 and 7201 Sadar Bazar, Delhi to the first respondent and Mr.Prem Narain and the possession thereof was handed over to them. They were required to raise construction on the said plot within the specified period. It was only after the completion of the building that the formal sale deed was to be executed in their favour by the Delhi Improvement Trust. After the partition of the country the petitioner occupied the aforesaid open plot in 1947. Ultimately in the year 1951, the first respondent and Prem Narain accepted the petitioner as a tenant on a monthly rental of Rs. 48.00. It is not disputed that the petitioner started a factory over the land by raising an unauthorised structure over it. Sometime in the year 1964 the first respondent and the other co-owner instituted a suit, being suit No.887/64 in the Court of Sub Judge Ist Class, Delhi for eviction of the petitioner from the plot in question and for recovery of arrears of rent. On January 31, 1967 the suit was decreed and the petitioner was granted two months' time to remove the unauthorised structure and to vacate the land. The decree passed against the petitioner acquired finality as both the first and the second appeals were dismissed. While the first appeal was dismissed on January 11,1968 by the Additional District Judge, the order dismissing the second appeal was passed by this Court in RSA No. 102 of 1968 on May 06, 1974. Since the land is situate in an area which has been declared to be a slum area under the Slum Areas (Improvement and Clearance) Act, 1956 (for short the Act), the first respondent on January 18,1979 applied before the Competent Authority Slum Areas for permission to execute the decree for eviction. On January 19, 1984 the Competent Authority granted conditional permission to the first respondent. The Competent Authority also held that the area in question should be treated as open land as the appellant had raised unauthorised construction over it subsequent to its occupation by the appellant, that the land falls in slum clearance area, that the appellant had the financial capacity to arrange alternative accommodation though with some difficulty, that the eviction of the appellant will be in the interest of improvement and clearance of slum area as provided under Section 19 (4)(b) of the Afpct and that the respondent had not placed any evidence on record to show that he proposes to construct the building complying with the municipal Bye-laws and the Zonal Plan of the Delhi Development Authority. The Competent Authority in view of the last finding required the first respondent to get the plan of the proposed building approved from the Delhi Development Authority as a condition precedent for obtaining permission and in case the authorities insisted upon the clearance of the unauthorised structure as a pre condition for approval of the plan, in that event the said order was to be deemed as permission for execution of the decree of the civil court obtained by the respondent against the petitioner. Feeling aggrieved by the order of the Competent Authority, the first respondent filed an appeal before the Financial Commissioner. As already pointed out the Financial Commissioner accepted the appeal by its order dated November 12, 1984 and granted permission to the first respondent for executing the decree of eviction. The Financial Commissioner also observed that since a decree of ejectment passed against the petitioner and in favour of the first respondent was in respect of the open plot of land, it was not necessary for the latter to get the plan approved for construction of a building thereon before the grant of permission to evict the petitioner specially in view of the fact that the petitioner had raised unauthorised construction thereon. It was also held that even removal of unauthorised construction would amount to improvement and clearance of the slum area. It was the view of the learned Financial Commissioner that the open land would stand automatically cleared/improved once the unauthorised construction thereon is removed. Accordingly the order of the competent authority was set aside and the permission was granted to the respondent for execution of the decree of eviction. The petitioner not being satisfied with the order of the Financial Commissioner has filed the instant petition under Article 227 of the Constitution questioning the same.
(3.) Mr.Jaitley, the learned Senior counsel appearing for the petitioner assailed the order of the Financial Commissioner mainly on the following grounds:- 1. The decree of eviction could not be enforced without the first respondent securing approval of the plan for raising the construction on the land in question. According to section 19 (4) (a) & (b) of the Act, permission to institute a suit for eviction or to enforce a decree of eviction against a tenant in a slum area can be granted by the Competent Authority only when he has the means to acquire the alternative accommodation and the eviction is in the interest of a slum area. Both the conditions postulated in section 19(4) (a) & (b) have to read cumulatively and not disjunctively and need to be satisfied. This construction would be in keeping with the decision of the Supreme Court in Jyoti Parsad vs. Union Territory of Delhi, AIR 1961 S.C. 1602 2. The finding of the Competent Authority that the petitioner had the financial capacity to secure an alternative accommodation was not based on valid considerations. 3. The view of the competent authority that an alternative accommodation could be obtained by the appellant at the rate of 20 paise per sq. ft. and at this rate it will be required to spend Rs. 1,166.00 per month by way of rent for an alternative accommodation measuring 5826 sq. ft. in a non slum area was not based on ground realities of the situation as no accommodation could be secured at such low rates. The test that a tenant living in a slum area can get an alternative accommodation at that rate does not hold good and is constitutionally unsound. He relied upon the decision of the Supreme Court in Rattan Arya and others vs. State of Tamil Nadu and another (1986) 3 SCC 385 at 389 and Motor General Traders and another vs. State of Andhra Pradesh and others (1984) 1 SCC 222 and submitted that an eviction or provision of law initially in conformity with fundamental rights may cease to be so by passage of time. The test that a tenant living in a slum area can secure an alternative accommodation at the rate of 20 paise per sq. ft. of the covered area is totally archaic. 4. A request was made by the petitioner before the Financial Commissioner for grant of an opportunity to it for placing on record documents to show that it was a victim of 1984 riots which brought about its financial ruination, but no such opportunity was afforded. 5. The petitioner is a pre Master Plan user of the premises which are being used as a factory for manufacture of ink. In case the petitioner is required to move out of the subject premises, it has to shift to a conforming area in accordance with the Master Plan but the petitioner does not have the means to secure another accommodation in such an area. 6. There has been a partition amongst members of the petitioner firm. While the premises in question have fallen to the share of Sarvshri Prithpal Singh Sahni,Gulbir Singh Sahni,Amar Deep Singh Sahni Industrial Plot No.92/6 Faridabad has fallen to the share of Harvir Singh Sahni as per deed of retirement dated March 31, 1993 (Annexure P-1 at Page 95 of the paper book) to the rejoinder affidavit of the petitioner affirmed on January 10,1995. Therefore the petitioner has no other property where he can shift. 7. Without getting the requisite sanction of the plan for erection of a building on the subject land, permission could not be granted to the first respondent to execute the decree of eviction.;