(1.) This petition under Article 227 of the Constitution of India has been filed by the tenant seeking quashing of order made on 12th February 1974 by the competent authority under Slum Areas (Improvement & Clearance) Act, 1956 granting permission to landlord-respondent No. 2 herein to institute eviction proceedings in respect of the disputed premises under Section 19(1)(a) of the aforesaid Act. The application under Section 19(1)(a) was filed by respondent No. 2 before the competent authority on or about 4th January 1973, inter-alia, plodding that the tenant is a government servant in the Ministry of Irrigation and was getting about Rs. 1100.00 per month and his son was working in the Irwin Hospital getting about 600.00 per month and thus the tenant was a man of status and was not likely to create any slum In case of his eviction. The competent authority came to the conclusion that the emoluments of the petitioner-tenant were established around Rs. 600.00 per month. The competent authority has also observed in the impugned order that on the date of the filing of the petition the respondent had the status of acquiring alternate accommodation within his means and even looking to the funds at his disposal including the pension which was to be fixed, he was not likely to create any slum in case of his eviction.
(2.) There was a controversy before the competent authority as to the area of the tenanted premises. According to the landlord the area of tenanted premises was 160 sq. ft. whereas according to the petitioner-tenant it was 280 sq. ft. The competent authority has also noticed the contention of Counsel for the landlord that the area shown by the tenant is contrary to the fact and even according to the dimensions and calculations in the plan filed by the tenant 527 the area does not exceed 160 sq.ft. It seems that the competent authority proceeded on the assumption that the area of the tenanted premises was 160 sq. fts. Mr. Taneja, learned Counsel for the petitioner-tenant contends that the calculation of the competent authority about the area of the tenanted premises is not based on any material on record. Counsel contends that while calculating the area the competent authority did not take into consideration the area of barsati which was part of the tenanted premises even as per the case set up by the landlord in application filed under Section 19(1)(a)ofthe Act. However, there is nothing on the record of this petition to show whether in the area of 160 sq ft. the area of barsati has been included or not. The petitioner has not placed on this record any of the site plans filed before the competent authority. In absence of the site plans it is not possible for this Court to accept the contention of learned Counsel for the petitioner that the finding as to the area of the tenanted premises is not based on any material. The contention is therefore, rejected.
(3.) Next, it is contended by Mr. Taneja that the finding that the emoluments of the petitioner-tenant were around Rs. 600.00 per month is based on no material. In the affidavit dated 4th October 1973 filed by the tenant before the competent authority, it was stated that he had retired from government service with effect from 15th September 1973 and a copy of the letter Issued by the government of India in this regard was also filed. Further, it was deposed in the affidavit that with effect from 15th September 1973 the department bad recommended the pension of the tenant to be fixed tentatively at Rs 183.00 per month. It seems from the perusal of the impugned order that the tenant had also furnished before the competent authority the material showing that he had been allowed the gratuity of Rs. 6045.00 and Provident Fund of Rs. 3088.00 as retirement benefits Learned Counsel for the petitioner has also filed In Court today a photostat copy of pension payment order of the petitioner showing that with effect from 15th September 1973 Rs. 183.00 was fixed as monthly pension. Assuming the petitioner could keep the amount of gratuity and pension in a fixed deposit and adding the interest which could he earned from the said fixed deposit to the pension amount, the monthly emoluments of the petitioner as on the date of the impugned order would be around Rs. 240.00 per month. The initial burden to prove the status of the tenant is on the landlord. The landlord has failed to discharge that burden. The conclusion of the competent authority that the monthly emoluments are around Rs. 600.00 per month is not based on any material. A finding not based on any material Is liable to be quashed (See : Niamat Bi v. Sh. S.L. Dhani etc., 1974 R.L.R.413). It may also be noticed that the competent authority did not record the finding that while considering the financial status of the petitioner the financial capacity of his son had also to be taken into consideration. The competent authority proceeded on the assumption that the emoluments of the petitioner himself were sufficient for him to arrange the alternative accommodation. Even otherwise, it appears from the affidavit of the petitioner and his son that the son of the petitioner was living in a separate tenanted premises at C-40, Jhilmil Colony, Shahddra, Delhi, whereas the premises in dispute where petitioner was living are property No. 3254, Kucha Tara Chand, Darya Ganj, Delhi. The impugned order that the petitioner will not create slum proceeds on the basis of his emoluments of Rs. 600.00 per month which as noticed above, is not based on any material and which finding cannot be sustained.