MOHD. ISMAIL Vs. M.K. RAI
HIGH COURT OF DELHI
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PRAKASH NARAIN, J. -
(1.)BY this petition under Articles 226 and 227 of the Constitution of India the petitioner challenges the order dated April 11, 1972 passed by the competent Authority under Section 19 of the Slum Areas (Improvement & Clearance) Act, 1956 whereby permission was granted to Smt. Maina Devi and Shri Sumer Chand, owners/landlords of the property occupied by the petitioner for commencing eviction proceedings against him.
(2.)PETITIONER resides in property No. 1444-45, Gali Fayyazganj, Bahdurgarh Road, Delhi. The monthly Rent was Rs. 5-50 per month. The owners/landlords filed an application under Section 19 of the aforesaid Act for permission to start eviction proceedings. The grounds given were that the petitioner was in arrears of rent though he had means to pay the rent and the property was required bonafide by the owners/landlords for themselves. The Competent Authority rightly come to the conclusion that the question of arrears of rent was not a matter which he is to decide. He had to only see whether the petitioner if evicted would create slums or whether he had means to take alternative accommodation. On the evidence led before the Competent Authority by affidavits the Competent Authority came to the conclusion that the total income of the petitioner and members of his family including his daughter-in-law was Rs. 650/- per month. From that amount if petitioner was to pay 12% by way of rent which would come to Rs. 78/- per month he could well afford to take another premises of more or less the same dimension which were personally occupied and would thus not create slum.
The challenge to this decision is on two grounds. First, that daughter-in-law's income could not be clubbed with the income of other members of petitioner's family to arrive at the figure of Rs. 650/- and secondly, that there was no basis for the figure of Rs. 78/- per month which according to the Competent Authority, the petitioner could afford to pay by way of rent.
(3.)REGARDING the income of the daughter-in-law, it is first submitted by Mr. Ahmad, learned counsel for the per that the petitioner and his son had given an affidavit that the daughter-in-law earns nothing. These affidavits should have been believed. It was a wrong approach, counsel contends, that Zubeda Begum should have filed an affidavit on this point. We do not accept this contention. Apart from the fact that Zubeda Begum would be the best person to depose about her earning anything or not, the view taken by the Competent Authority cannot be called so un-reasonable as to be struck down on the ground that no reasonable person could have taken this view. On the question of clubbing of daughter-in-law's income, it is urged by reference to the case in Kirath Chand v. P.R. Varshneya and others, 1972 R.C.J. 22 RCR 428 that it is not permissible. We do not agree. If the daughter-in-law is living the house where a tenant is not earning anything and the members of the family contribute towards the family funds, we do not see why the daughter-in-law's income should be disregarded. If the tenant is earning, then perhaps in the social set up in our country, the daughter-in-law's income may not be included but where he is not earning at all or is not earning enough, contribution by every member of the family towards family funds has to be taken into account. The judgment referred to gives no reasoning for the contrary observation. We, therefore, must hold that the observation does not lay down the correct proposition of law. Indeed, the view taken by this Court in many cases including Charanji Lal v. Kailash Chand Jain, 1982 R.L.R. 299 : 1982(1) RCR 410 and in Smt. Chandarvati v. Shri Ali Hasan and another, L.P.A. 121 of 1967 decided on April 24, 1969, is that there is no bar to income of all the family members living together being clubbed to find out the funds available to the tenant for purposes of maintaining the family and paying rent.
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