JUDGMENT
S.N. Kapoor, J.
(1) This petition is directed against an order 25th April 1975 under Section. 19 of the Slum Areas (Improvement and Clearance) Act, 1958 (hereinafter called the ‘Act’ for short).
(2) The learned Competent Authority (Slum) has granted permission vide impugned order, to file eviction petition against the present petitioner on the ground that all the respondents owned house No. Wz 40 in Sant Garh, Tilak Nagar, Delhi. They let out the said house to the petitioner for their residence. They would not create a slum in case of their eviction from the premises under dispute.
(3) Feeling aggrieved by the said order, this petition has been filed inter alia on the ground that house No. Wz 40 Sant Garh, Tilak Nagar exclusively belonged to Baldev Raj and to none other petitioner. The petitioner No. 4 was never a tenant and he had just been imp leaded on the ground that he happened to be the son of the former tenant Shri Raj Dhar. Since long he had been living separately his own premises. The learned Competent Authority (Slum) has completely overlooked the income and means of petitioner Nos. 1-3.
(4) In the light of the above, two questions are required to be seen: (i) “Whether Baldev Raj was the exclusive owner of property No. Wz 40 Sant Garh, Tilak Nagar?” and (ii) “Whether the petitioners have sufficient means to acquire alternative accommodation without creating slums?”
(5) According to the landlord/respondent, the petitioners had purchased house.No. Wz 40 Sant Garh Tilak Nagar and Wz 105 Sant Garh Tilak Nagar from the funds provided by all the petitioners including the father of the petitioners and these houses belonged to all the petitioners. The petitioners sold out the house No. Wz 105 Sant Garh Tilak Nagar during the pendency of the proceedings only to deceive and defraud the answering respondents.
(6) About house No. Wz 105 Sant Garh, Tilak Nagar, it is averred by the petitioner/tenant that it was false and “no such house is owned either by Baldev Raj or either by any of the respondents”. It is notable that the petitioners arc silent about purchase of house No. W2 105 Sant Garh, Tilak Nagar. There is no affidavit to the effect that the petitioners never had any connection whatsoever with house No. Wz 105 Sant Garh, Tilak Nagar. It maybe mentioned that according to the affidavit Filed before the Competent Authority (Slum) as well as in this High Court, this fact was specifically agitated by the landlord.
(7) As regards the best evidence, a copy of the Sale Deed in favour of Baldev Raj has been filed which showed that house No. Wz 40 Sant Garh, Tilak Nagar was purchased in the name of Baldev Raj alone. As such, there appears to be some substance in the contention of the respondent that three other brothers did not own it.
(8) According to Baldev Raj, he had left the premises in dispute in 1961. This aspect was considered by the Competent Authority (Slum) and he rejected the contention on account of the fact that the tenant/petitioners had failed to produce any documentary evidence including ration card, voters list etc. to show that Baldev Raj had shifted to Wz 40 Sant Garh, Tilak Nagar. The contention of Baldev Raj that he shifted in the year 1961. The property was sold on 12th February 1964 vide Annexure ‘B’. This document does not indicate that he was occupying the property under any agreement to sell or otherwise since before. It may further be interesting to note that Dalip Singh, who sold the property himself purchased it on 29th December 1962. In such circumstances, it could not be accepted that he shifted in the house in the year 1961 and he did not continue in the house as alleged by the landlord specially on account of the fact that Baldev Raj had not produced any documents referred to in the judgment of Competent Authority (Slum) even before this court to satisfy that he had shifted in the year 1961 to Wz 40 Sant Garh, Tilak Nagar.
(9) Thus, It is evident that all the petitioners arc real brothers and as sons, they inherited the tenancy of Raj Dhan. It is also established that Baldev Raj had not shifted in the year 1961 as alleged. No documentary evidence has been filed by Baldev Raj to establish his income.
(10) According to the affidavit on record, petitioner No. 3 Sat Pal has specifically stated that he was employed in the Merchant Navy. He had Filed an affidavit to the effect that he was working as apprentice in the in Dcm for the last three months at the rate of Rs. 100.00 per month and he had been relieved from Merchant Navy. According to the affidavit on record filed by Jambu Parshad Jain, in the application dated 11th March 1976 filed in the court of Rent Controller, Delhi, the petitioners had specifically alleged in para 1 that no notice in respect of the petition had been served by the respondent No. 4 Satpal for he was not in Delhi for the last more than seven months as he is employed in the Merchant Navy. This would show that the petitioners had intentionally and deliberately concealed the facts. In any case, it would be apparent that at least later on he was employed in Merchant Navy as fireman/wireman and that he had to move in the ship all the time. This would establish that Satpal has at least got sufficient means later on.
10.1The income of the petitioners is within their own knowledge. As such, in view of the provisions of Section 106 of the Indian Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Therefore, after the landlord filed his own affidavit, the tenants were supposed to establish their income, to say that the present petitioners No. 1 to 3 did not. have sufficient means to acquire an alternative accommodation and the petitioners in such circumstances cannot take advantage of the onus of proof and an adverse inference could be drawn. In Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif & ors., . Their Lordships observed in para 5 as under: “LASTLY,reference should be made to the important circumstances that the appellant has not produced the account of the Dargah income. In the course of his evidence, the appellant admitted that he was enjoying the income of plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that “he had got record of the Dargah income and that account was kept separately”. But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from plot No. 134 was dealt with.”
(11) The Court further observed as under: “MR.Gokhale, however, argued that it was no part of the appellant’s duly to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.”
11.1According to the affidavits of Bhim Sen, Satpal and Krishan Kumar, they were residing in the premises in dispute. Bhim Sen was totally disabled man, having amputated legs and unmarried and totally dependent on Krishan Kumar and Satpal. Krishan Kumar was getting a salary of nearly Rs. 250.00 per month and Satpal Rs. 1000 per month.
11.2According to the case of the landlord Bhim Sen was employed with Prem Tailors, 5204 Chandrawal Road, Subzi Mandi and was also taking private job of tailoring and his individual income was more than Rs. 1000.00 per month. The fact that he had married also supports that he must be earning about Rs. 1000.00 per month as claimed by the petitioner by working as a tailor.
11.3In view of the aforesaid circumstances, it could not be said that Baldev Raj had nothing to do with the tenancy. It is not possible to accept that Bhim Sen, Krishan Kumar, Satpal and Baldev Raj did not have sufficient means at the relevant time to acquire alternative accommodation without creating slums.
(12) Incidently, it may be mentioned that in Sardar Gurcharan Singh Vs. Smt. Ram Kaur & am. 1980(1) Rlr 134 overall status and means and in Asarfi Devi Vs. Gangasahai Kishanlal, 1978 Rlr 81, the income of the family members of the tenant was also considered \ to ascertain the means of the tenant to acquire alternative accommodation without creating slums elsewhere. Here in the present case, all the four brothers arc tenant. Therefore, income of Baldev Raj cannot be ignored.
(13) Supposing for the sake of argument that the learned Competent Authority (Slum) while granting permission under Section 19 of the Act had taken the wrong view of the facts about the means of the petitioners, this court cannot substitute its own views in exercise of the powers of supervisory jurisdiction of this court under Article 227 of the Constitution of India (See Laxmikant Revehand Bhojwani & anr. Vs. Pratapsing Mohansingh Pardeshi, .
(14) It is now settled law that the grounds mentioned under Section 19(4) to grant permission are to be read separately and in case of either of the grounds, (a) or (b) being fulfillled, it would not be required that the other ground to grant permission must also be fulfillled (See Pannu Ram vs. Chiranjilal, 1982 R.L.R. 576).
(15) In such circumstances, I do not find any force in this petition and dismiss the same.
(16) A copy of this order be sent to the learned Competent Authority (Slum) for information.