Delhi High Court
Prem Sagar vs Vijay Kumar Rajput on 1 September, 1996
Equivalent citations: 64(1996)DLT406, 1996(39)DRJ80, 1996RLR469
JUDGMENT
Usha Mehra, J.
(1) MR.VIJAY Kumar respondent herein (petitioner before the Trial Court) filed a petition under Section 19 of the Slum Areas (Improvement & Clearance) Act,1956 (in short the Act) seeking permission to institute eviction proceedings against the present petitioner Mr.Prem Sagar. The Competent Authority by the impugned order granted the permission. The permission was sought, inter alia, on the ground that Mr.Prem Sagar (petitioner herein) had not been paying rent regularly. He had damaged the property by lowering the plinth area of the shop. He had sub- let, assigned and parted with possession of the shop in question to another person. It was further alleged that Wooden partition raised in the shop was without the consent and permission of the landlord. The sub-tenant had been running the business of ‘paan’ and ‘Cigarettes’. That the rent of the entire shop was Rs.35.00 per month. That tenant happens to be a rich man. His daily income from his business was about Rs.300.00 per day. He had been enjoying all the amenities, comforts and facilities of life. He had sufficient means to acquire alternative accommodation. By his eviction no slum would be created.
(2) The above assertions of the landlord Mr.Vijay Kumar Rajput were not only denied but contested by Mr.Prem Sagar. He took the plea that the premises was let out and being used within the knowledge of the landlord for residence-cum- commercial purpose. That the possession of the entire shop was exclusively with him. It had neither been sub-let, assigned or parted with to any other person. He himself has been in possession of the entire premises. His real brother living with him has been doing the business of ‘Paan’, ‘Bidi’ and ‘Cigaretts’ in the front portion of the shop whereas he himself has been running the business of selling tea in the back portion of the shop. He has been earning about Rs.50.00 per day from his business of tea selling. He denied that he was earning Rs.300.00 per day. He also denied that he had all the aminities and facilities of life. Since the premises was let out for residential-cum- commercial purpose, if evicted he contended he would s another slum, therefore, permission should not be granted.
(3) On these rival pleadings the petition under Section 19 of the Act was tried by the Competent Authority. Parties were directed to file their evidence by way of affidavits. On the basis of the evidence led by the parties, the Competent Authority by the impugned order came to the conclusion that the ten- ant had sufficient means to acquire an alternative accommodation and if permission granted he would not create another slum. Competent Authority granted permission primarily on the ground that the tenant failed to establish his income by producing his books of accounts. Aggrived by the impugned order, the present petition has been preferred by the tenant (respondent before the Trial Court).
(4) In order to appreciate the contentions of the parties, brief facts relevant for determination of this petition can be summonsed like this. The petitioner has been a tenant of the respondent on a monthly rent of Rs.35.00 . The tenanted premises bears Shop No.165, situated at Main Bazar, Paharganj, Delhi. So far as the question of relationship of landlord and tenant there is no dispute of the same. The rate of monthly rent tenancy is also not in dispute. The only point for determination is whether the petitioner has sufficient means to acquire an alternative accommodation and thus would not create another slum if evicted. For answering this question. Court had to take into consideration the purpose of letting and the means.
(5) The pre-condition for the grant of permission under Section 19 of the Act envisages that tenant has sufficient means. Income of the tenant is a very relevant factor. The Competent Authority while determining the petition has to take into consideration the admission made by the tenant in his affidavit filed by way of evidence. In this case evidence by way of affidavit by the tenant was filed ‘on 18th January,1991. In his evidence petitioner/tenant admitted that he was earning about Rs.50.00 per day and his brother who has been running in part of this shop Rs.25.00 to Rs.30.00 per day by selling Tan’ and ‘Cigaretts’ etc. If the earnings of the petitioner as admitted by him are put together, the income of the petitioner would come to around Rs.80.00 per day and Rs.2,500.00 per month. The question for consideration is whether the monthly income of Rs.2,500.00 is sufficient or not? Mr.V.K.Sharma, appearing for the petitioner urged that the area in occupation of the petitioner herein is around 250 sq.ft. For acquiring similar accommodation the petitioner has to pay approximately Rs.l,000.00 per month. However, if out of the income of the petitioner 12% is taken apart for the purpose of rent, it would come to Rs.300.00 per month. With RS.300.00 per month such an accommodation cannot be available. According to him for such an accommodation minimum rent payable is about Rs.l,000.00 and upward.
(6) On the other hand Mr.Sanjay Karol, appearing for the respondent/landlord contended that in the part of the shop mineral water bottles; soft drinks, pan and cigaretts are being sold. For similar or like business in this very locality people are making more than Rs.200.00 per day. Similarly from his tea shop the income per day cannot be less. Petitioner in fact did not produce any accounts nor furnished any details of his income. Hence his income has to be presumed on the basis of his running two different establishments one of selling tea and other soft drinks etc. (7) So far as the question of not producing the record of accounts and of drawing adverse inferences, we are bound by the observation of the Division Bench of this Court in the case of Asarfi Devi Vs. Gangasahai Kishanlal, 1978 Rlr page 81. This Court in Asarfi Devi’s case in no uncertain words observed that the onus of proof of income is on the tenant. It is enough for the landlord to give an estimate about the same. Tenant must give full details about monthly or yearly income. If he pays income tax, he must file copy of return and assessment order. But petty traders who may not be keeping accounts books, it would be unrealistic to expect them to produce the same. The case of Asarfi Devi (supra) in the facts of this case is distinguishable. In that case the tenant was carrying on the business of crushing selling sugar-cane juice during the season when sugar-cane is available and of cotton carding i.e. to fill the mattresses and quilts with cotton etc. during the rest of the year. For such petty seasonal trade nobody is expected to maintain the accounts. People bring their cotton the lady did the carding and after filling the mattresses and quilts charged the money which happens to be a very small amount. No one can keep such accounts. Similarly, for crushing sugar-cane and taking out the juice and selling per glass during the season, no one is expected to maintain account. In those circumstances this Court rightly observed that that was a petty trade. But that is not the case in hand. In the present case, the petitioner has been selling tea in this shop. As per his own showing he has been earning approximately Rs.50.00 per day. For earning Rs.50.00 or more per day he must be unstilising lot of milk. Commodity like milk cannot be preserved. Therefore, petitioner must be buying milk in bulk quantity everyday. He has no where stated in his evidence that he had been paying on daily basis or purchasing milk on daily basis. This leads to only one inference that he must be settling his accounts monthly. If so then Mr.Sanjay Karol rightly contended that the payment of milk must be on on-account basis and the petitioner must be keeping account otherwise how could he settle the account of milk nor could tell that he was earning Rs.50.00 per day. Similarly for ‘paan’, ‘cigaretts’ and ‘soft drinks’, the brother of the petitioner must be keeping some sort of accounts otherwise how. could he say that his brother was earning Rs.25.00 to Rs.30.00 per day. In fact the photographs which have been placed on record show that in the shop being run by petitioner’s brother there they are selling soft drinks, chips, cigaretts, mineral water etc. Therefore, it cannot be said that the petitioner is having petty trade which is seasonal in nature nor it can be said that he was not keeping any account. To my mind, the Trial Court rightly drew adverse inference against the petitioner for not haying produced the accounts. It can be possible that he was not keeping regular books of accounts like ledger etc. but cash book or daily accounts book sort of thing he must be keeping which he failed to produce, hence adverse inference was rightly drawn against him. In the absence of any satisfactory proof of petitioner’s income to be Rs.80.00 per day the Trial Court rightly drew the presumption on the basis of evidence led by the landlord that petitioner was a man of means. Even if for the sake of arguments it is presumed that premises was let out for residential-cum-commercial purpose, it makes no difference because petitioner has sufficient means to acquire alternative accommodation.
(8) For the reasons stated above, I see no infirmity in the order of the Trial Court. Dismissed.