Full Judgment
D.K. Mahajan, J.
1. This is a petition under Articles 226 and 227 of the Constitution of India and is directed against the order of the Administrator of the Union Territory of Delhi passed in appeal under the Slum Areas (Improvement and Clearance) Act, 1958 -- hereinafter referred to as the Act. The petitioner was a tenant of the house in dispute which is situate in Mori Gate, Delhi, which Is a slum area. The petitioner was tenant of the ground floor whereas the first floor was rented out to the respondent Nihal Chand. The petitioner purchased this house from its owner in March, 1956, and on the 5th of, October, 1956, a suit for ejectment was filed on two grounds, namely, (i) that the petitioner required the house for his own use and for the use of his family members; and [ii] that the wall had dangerously cracked and repairs could not be carried out without the house being vacated. On the 15th of November, 1956, a consent decree was passed and the tenant agreed to vacate the house after 21 years. In the meantime the Act had come into force. On the 7th April, 1959, an application was made under Section 19 of the Act for execution of the Civil Court decree dated the 15th of November, 1956. This was followed by a suit by Nihal Chand on the ground, that the compromise decree was a nullity. This suit was dismissed on the 29th of August, 1960, and an appeal against it also failed on the 28th of August, 1961. On the 23rd of August, 1960, the Competent Authority under the Act rejected the petitioner's application under Section 19 of the Act. An appeal againstthis decision also met with no success. It is against this order that the present petition is directed.
2. The contention of the learned counsel for the petitioner is that the authorities under the Act, both the original and the appellate, have not approached the matter from the correct standpoint. It is admitted that the Act does not lay down any criteria in express terms which is to be kept in view by the authorities while granting or refusing permission under Section 19 of the Act. The matter was examined by the Supreme Court In Joti Pershad v. Union Territory of Delhi, AIR 1961 SC 1602 and their Lordships of the Supreme Court observed at page 1611 as follows:
'Obviously if the protection that is afforded is read in the context of the rest of the Act, it is clear that it is to enable the poor who have no other place to go to, and who if they were compelled to go out, would necessarily create other slums in the process and live perhaps in less commodious and more unhealthy surroundings than those from which they were evicted, to remain in their dwellings until provision is made for a better life for them elsewhere. **** * The Act, no doubt, looks at the problem not from the point of view of the landlord, his needs, the money he has sunk in the house and the possible profit that he might make if the house were either let to other tenants or was reconstructed and let out, but rather from the point of view of the tenants who have no alternative accommodation and who would be stranded in the open if an order for eviction were passed. The Act itself contemplates eviction in cases where on the ground of the house being unfit for human habitation it has to be demolished either singly under Section 7 or as one of a block of buildings under Chapter IV-So long therefore as a building can, without great detriment to health or safety, permit accommodation, the policy of the enactment would seem to suggest that the slum dweller should not be evicted unless alternative accommodation could be obtained for him.'
It is patent from the clear reading of both the orders of the Administrator and Competent Authority that the real grounds for allowing the application under Section 19 of the Act were not kept in view. Both these authorities have really examined the necessity of the premises by the landlord. That is hardly a matter which can be gone into under the Act. The primary requirement that has to be gone into is what is the status of the tenant and his means to get an alternative accommodation so that if he is evicted he does not create another slum? This criteria has not been kept in view. That being so, in my view both the orders are erroneous on the face of them in law and must, therefore, be quashed with the direction that the matter must be determined by the Competent Authority afresh in accordance with the rule laid down by the Supreme Court in Joti Per-shad's case, AIR 1961 SC 1602.
3. Mr. Yogeshwar Dayal, who appears for the respondents, says that this aspect of the matter was not placed before both the authorities under the Act and, therefore, it is not open to the petitioner to urge it in a petition under Article 226 of the Constitution. I am unable to agree with this contention because the orders on the face of them are wholly against the very tenor of the Act and the objection being purely legal and going to the very root of the matter would be open to review in a petition under Article 226 of the Constitution.
4. The other contention raised by the counsel for the respondents is that there was suppression of material fact, namely, that the tenant had only agreed to vacate the premises in view of the personal necessity of the landlord. It is no doubt true that the eviction was sought on twogrounds and the landlord may have erroneously attached greater importance to the tenant having suffered eviction on the ground of personal necessity, but be that as it may it cannot be said that in the circumstances of this case the petitioner is guilty of suppression of material fact, which would entail the dismissal of the petition on that ground.
5. For the reasons given above, I allow this petition and quash the orders of the Competent Authority and the Administrator with the direction that the matter must be determined by the Competent Authority afresh in accordance with the observations made above.
6. There will be no order as to costs.