JUDGMENT
M.K. Chawla, J.
(1) The petitioner, Shri Rattan Lal is the owner/landlord of i of the property bearing No. 4070-4072. Naya Bazar, Delhi. Shri Ram Sarup, respondent No. 3 is in occupation of this portion of the property as tenant @ Rs. 123.32 per mensem. On 28-4-1969 the petitioner filed an application under Section 19 of the Slum Areas (Improvement and Clearance) Act against the respondent. Ram Samp for instituting a suit for obtaining a decree/order for his eviction on the following amongst other grounds : (A)That the tenant has not paid any rent since 1-1-1969 at the agreed rate of Rs. 123 32 per mensem ; (b) That the tenant has caused and permitted to be caused substantial damage to the property let out to him-total damage assessed at Rs. 55.000.00 . (c) That the tenant has started using the premises as a godown for storing oil, though it was given to him for being used as a shop- there is misuse of the premises ; (d) That the tenant has sublet, assigned or otherwise parted with possession of a portion of the premises to other persons without the permission of the petitioner.
(2) Notice of the filing of the application was duly served on the tenant. During the course of the pendency of the proceedings the petitioner filed his own affidavit regarding the status/means of the respondent and his capacity to acquire an alternative accommodation. The tenant filed his counter-affidavit, in which he took up the stand that the tenancy in respect of the premises in dispute is in the name of M/s Sundoo Mal Ram Sarup, who are the real tenants of the premises in question and by not joining the firm the present petition is not maintainable. It is also alleged that there is no privity of contract of landlord and tenant between, the parties. Even otherwise the respondent is not in a position to acquire another suitable alternative accommodation now is he possessed of sufficient means for the said purpose. All other averments were also specifically denied.
(3) The Competent Authority vide order dated 25-2-1972 dismissed the petition by holding that the respondent has no means to arrange an alternative accommodation and will create slum if evicted. The appeal of the petitioner before the financial Commissioner met with the same fate on 8-5-1972. it is against this order that the petitioner has filed the present petition under Article 227 of the Constitution of India praying for the setting aside of the impugned order and granting the petitioners’ application for permission to file a suit/proceedings eviction of his tenant, Shri Ram Sarup
(4) This case has been on the Daily Board of this court since 1-5-1986 and inspite of the service of the notice on the respondent no body has cared to put in appearance.
(5) I have heard the learned counsel for the petitioner and with his help gone through the record carefully.
(6) The contention of the learned counsel for the petitioner to start with is that inspite of the unrebutted evidence of the petitioner about the means and financial status of the tenant, the competent authority/Finance Commissioner have not given a definite finding in this regard and as such have ignored the mandatory provisions of Section 19(4)(a) of the Slum Areas (Improvement and Clearance) Act. The court below have altogether ignored the material evidence of the tenant having an alternative accommodation and his capacity/means to acquire an alternative accommodation. It is also alleged that as per the finding of the courts below the respondent’s income has been assessed at Rs. l,09,4l0.00 per year, which earning by itself is sufficient enough to justify the grant of the relief to the petitioner.
(7) Before dealing with the points urged in support of the present petition the findings of the Financial Commissioner have to be kept in mind. The first finding is that there is a relationship of landlord and tenant between the petitioner and Ram Sarup. The second finding is that the total income accruing to the respondent on the date of the application was Rs. l,09,410.00 pensem (no annum) or Rs. 9,100.00 per month, and in the absence of any effective rebuttal on the part of the respondent/tenant the aforesaid income must be deemed to be the true income of the respondent. The relevant observation of the Financial Commissioner on the basis of which the application was dismissed reads as under ; “IT has been held by me and it appears to be most reasonable on the basis of the prevailing rentals in the Delhi non-slum areas that covered commercial accommodation cannot be had on less than a rupee per sq. foot on monthly rental. In the instant case, the respondent is in the enjoyment, as per my calculation, of 1384 gq. feet covered areas for a business purpose and if he were to acquire on rent similar accommodation in a non-slum area, he would be required to pay a minimum of Rs. 1384.00 per month as rent. Whether this amount is available to him from his monthly income as worked out above, is a matter now to be considered. It is again a settled principle as so approved by the High Court that a person cannot be expected to pay more than 12% of his income for accommodation and this being so, on the basis of Rs. 9,100.00 per month being the income of the respondent, he can at best dish out a sum of Rs. 1092.00 per month towards the payment of rent. As has been worked out by me above in case of his eviction from the demised premises he would require a minimum of Rs. 1.384.00 per month for being paid as monthly rental for alternative accommodation in a non-slum area. It will thus be seen that the income of the respondent as averred to by the appellant does not provide him with the status to find for alternative accommodation and as such he has perforce to be declared deserving of the protection as enjoined by clause (a) of sub-section (4) of Section 19 of the Act. In the circumstances, therefore, the appeal is rejected and the order of the learned Competent Authority dated 25-2-1972 rejecting the appellant’s application under Section 19 of the Act is upheld.”
(8) Prima facie the above said finding is quite contrary to the evidence and the provisions of the Slum Areas (Improvement and Clearance) Act. It is well settled that the initial burden of proving the income of the tenant is on the landlord when he makes an application for permission to file eviction proceedings against the tenant and he must prove the existence of relationship of landlord and tenant and the occupation of the tenant and that the tenant is in possession of means to find alternative accommodation, if evicted. However, having regard to the nature of fact which ordinarily would be within the peculiar knowledge of the tenant alone, the burden cast on the landlord would be a very light one and the moment the landlord produces such evidence as he was able to martial on the question of status and means of the tenant, the burden would shift on the tenant, who alone is in a position to disclose bids true means, resources and status and justify the protection of the Statute that he deems in defense to an application for permission.
(9) Applying the above said principle in this case the petitioner specifically disclosed the following income of Ram Sarup from the following resources: 1. From his business in the firm Rs. 35.000.00 per annum M/s. Sundoo Mal Ram Sarup. as per the income tax assessment. 2. From Property No. N-12, Rs. 62.530.00 as per the South Extension Part I, New assessment of the pro- Delhi owned by the respon property tax by the dent through his minor son, Municipal Corporation. Ishwar Dayal. 3. From Property No. IO-D Rs. 11.880.00 Kamla Nagar, Delhi owned by the wife of the respondent. 4. And also by income from the – Park in Sahibabad, known as Sarup Park.
(10) Besides that the respondent is carrying on business of various types of grain merchants, commission agents, oil business, money lending and that be has invested several lakhs of rupees on interest. Unfortunately the respondent has not specifically denied any of the averments of the petitioner disclosing his status. Thus in a way has deprived the Courts below of the information of his exact earning from various sources. However, relying on the averments of the petitioner regarding the financial status of the tenant I am inclined to agree with the finding of the corts below that for the purpose of deciding the present petition his income be assessed as Rs. l,09,410.00 per year.
(11) There is much force in the submission of the learned counsel for the petitioner that the respondent/tenant is already in occupation of a suitable alternative accommodation for running his business. In paragraph Ii of the affidavit of the petitioner/landlord it is spicifi(ally alleged that the respondent is the owner of the adjoining property besides his other properties mentioned above. In the counter affidavit tte respondent for reasons best known to him has not specifically denied this averment and goes on to dispute the earnings from other sources. It is almost an admitted case of the partiet that property bearing No. 4070-4072 is owned by the parties in equal shares. Ram Sarup is in occupation of ^ of this property as owner and is enjoying the remaining property, owned by the petitioner/landlord as his tenant It come to that the respondent/tenant is already in occupation of a suitable alternative accommodation. Furthermore his financial status as assessed by the courts below is much more than required for the respondent to acquire another suitable alternative accommodation. The grounds made the basis for the rejection of the petitioner’s application for permission to file eviction proceedings against the respondent prima facie are devoid of any substance. If the monthly income of the respondent which has been assessed by the courts below at Rs. 9,100.00 per mensem , which prino a facie is much below his actual incoire. is taken into consideration then certainly the respondent is very such in a position to acquire an alternative accommodation in a non-slum area. ]f in the opinion of the Financial Commissioner the respondent can dish out a sum of Rs. 1.092.00 per mensern towards payment of rent for an alternative accommodation certainly he is in a position to pay a sum of Rs. 200.00 (Rs. 300.00 ) more per mensern for the acquisition of another alternative accommodation as suggested In the impugned order. It is not a case where the respondent can be said to be not possessed of that status to find for an alternative accommodation or to declare him a deserving party for the protection as enjoined by clause (a) of sub-Section (4) of Section 19 of the Slum Areas (Improvement and Clearance) Act.
(12) The Competent Authority, while exercising the jurisdiction under Section 19 of the Slum Areas (Improvement and Clearance) Act is bound to consider the material evidence as to whether the tenant will be able to find alternative accommodation within his means and shall not create further slums if evicted. In many cases, where a person is evicted, it may not always be possible for him to maintain all the previous items of expenditure on the same scale as before and his capacity to secure alternative accommodation cannot be determined on the footing that all the expenditure must be allowed to continue as before. The Courts below certainly went wrong in depriving the petitioner of his right to file an application for eviction of his tenant on the sole ground that the respondent will not be able to spare about Rs. 200.00 more required for arranging an alternative accommodation. In this behalf the courts below certainly did not take into consideration the financial status of the respondent to which there was no rebuttal.
(13) As a result of the above discussion I accept the petition, set aside the order of the Competent Authority/Financial Commissioner and grant permission to the petitioner to institute proceedings for eviction of the respondent/tenant.