Judgment:
Sananda Bhandare, J.
(1) The petitioners are the owners of property bearing No. 1453 known as 'Mahal Sarai' situated at Gali Qasim Jan, Lal Kuan Bazar, Delhi which is in the walled city of Delhi and thus covered under the Slum Areas (Improvement & Clearance) Act, 1956 (hereinafter referred to as the Act). Respondent No. I-Jamia Tibbia which is a Society registered under the Societies Registration Act is a tenant in the said premises. Before filing an eviction petition under the Delhi Rent Control Act permission has to be obtained from the Competent Authority under Section 19 of the Act. The petitioners thus applied to the Competent Authority. The Competent Author
(2) During the pendency of this petition. Miss Khujista Begum expired and by order dated 20th March, 1975 Miss Hamida Sultan and Miss Akhtar Ara Begum were allowed to continue the proceedings.
(3) It was co ended by the learned counsel for the petitioners that respondent No. 1-Jamia Tibbia which has now changed its name to Hamdard Tibbia College is in fact an agency of the Hamdard National Foundation and Hamdard Dawakhana (Waqf). The constitution of the governing body of Hamdard Tibbia College shows that Hamdard National Foundation exercises complete control over Jamia Tibbia. All these organisations have enormous funds at their disposal. Respondent No. I is very closely connected and receives substantial funds from Hamdard Dawakhana (Waqf J, Hamdard National Foundation and other allied Hamdard organisations. Thus even if Jamia Tibbia (Hamdard Tibbia College) is evicted from the suit premises it had enough means available at its disposal to find alternate accommodation. Learned counsel submitted that even though Jamia Tibbia has been showing losses, the Profit & Loss Account and the Balance-sheet will show that huge funds are being given to Jamia Tibbia by Hamdard Dawakhana (Waqf) and Hamdard National Foundation and the losses are made up by these organisations. Learned counsel further submitted that in fact Jamia Tibbia purchased three properties in the year 1968-69 i.e. two buildings bearing No. 1455-1456 Qasimjan Street, Delhi on 20th January, 1968 and the adjoining property No. 1457 on the same street on 20th November, 1969. Respondent No. I is thereforee, not likely to create a slum even if it is evicted form the suit premises and the Commissioner erred in refusing permission to institute eviction proceedings against respondent No. 1.
(4) On the other hand, learned counsel for respondent No. I at the outset raised a preliminary objection regarding maintainability of the application under Section 19 of the Act and submitted that all the owners of the property were not parties to the petition, application by only some co-owners of the property is not maintainable and ought to be dismissed on that ground alone. For this proposition he relied on Mahinder Kumar Khandelwal v. Padaam Chand, Partner, 1984 (2) R.C.R. 347. Learned counsel further contended that though it is true that respondent No. I was getting subsidy and financial aid form Hamdard Dawakhana (Waqf) and Hamdard National Foundation, it was not an agency of Hamdard National Foundation or Hamdard Dawakhana (Waqf). The constitution of the governing body of Jamia Tibbia after it become Hamdard Tibbia College had been changed and the Hamdard Dawakhana (Waqf) and Hamdard National Foundation have no control over Jamia Tibbia. Learned counsel did not dispute that respondent No. I had bought three properties at Qasimjan Street, Delhi but submitted that the accommodation in these three properties could not be considered as alternative accommodation available to respondent No. I. Learned counsel submitted that since the respondent was incurring losses, it did not have sufficient means to find alternative accommodation and thus if evicted from the suit premises was likely to create slum.
(5) In my view, the respondent cannot be allowed at this stage to raise the objection regarding maintainability on the ground that all co-owners were not parties. This question was not raised by the respondent either before the Competent Authority or before the Financial Commissioner. The respondent did not raise this objection in the written statement filed by it before the Competent Authority nor any evidence has been led on the question of ownership. The application for permission was filed in early 1971. Right of ownership of the property is a question of fact and the respondent cannot raise this disputed question after 17 years for the first time in these proceedings.
(6) The Slum Areas (Improvement & Clearance) Act, 1956 was enacted to protect the weaker sections of the societies form eviction form tenanted premises because eviction of poor tenants would result in creation of slums.
(7) Under Section 19(4) of the Act, the Competent Authority while granting or refusing to grant permission under Sub-section (3), thereforee, has to take into account the following three factors :
(A) whether alternate accommodation within the means of the tenant would be available if he were evicted ;
(B) whether the eviction is in the interest of improvement and clearance of the slum areas ; and
(C) such other factors, if any, as may be prescribed.
thereforee, if a tenant is found to be possessing sufficient financial means to find alternate accommodation, permission is granted to the landlord to file an eviction petition because in such a case even if the tenant is evicted he is not likely to create a slum. Alternate accommodation does not mean identical accommodation. Thus, if a tenant is occupying a bungalow in the slum area but has means to buy an apartment enough to meet his requirement he cannot say that since he does not have sufficient means to buy equivalent accommodation permission should not be granted. If alternate accommodation available with the tenant is reasonably suitable, that is enough. Similarly even if the tenant does not have sufficient means with himself but is in a position to raise funds to find alternate accommodation, permission cannot be refused. It is well settled that even if a tenant himself does not have the means but his grown up children or other family members dependent on him for the accommodation have sufficient means, then the income of all such family members is to be taken into consideration. In determining the means of the tenant under Clause (a) all factors constituting the capabilities of the tenant to find alternate accommodation are relevant. In a given case a tenant may not be having individual income in his hand and yet he may still be having the means to obtain alternate accommodation. An abstract proposition that only the tenant's income ought to be considered will result in injustice. The object of the legislation is to protect the helpless and poor tenant from eviction because in such a case the tenant is likely to create a slum which is not in the interest of the society at large. It does not give protection to tenants who are in a position to find means to obtain alternative accommodation and are not likely to create slums. Thus, simply because a company or a society shows losses in its income-tax returns, permission cannot be refused.
(8) Now, coming to the facts of the present case. Respondent No. I Hamdard Tibbia College is affiliated to the University of Delhi imparting education in Unani system of medicine. All its income is exempt from taxation under Section 10(22) of the Indian Income-tax Act. Admittedly apart from constitution fee its finances are derived from contribution form Hamdard Dawakhana (Waqf) and the Hamdard National Foundation (India). It is also not disputed that respondent No. I purchased three buildings in the year 1968-69 i.e. two years before the petitioners filed the application for permission. At the relevant time as per the balance-sheet it had fixed assets of over Rs. 2 lacs. Its annual income was over Rs. 30,000.00 . The respondent also has a reserve fund. Though it is true that the expenditure is much more than the income received form tuition fee, admittedly every year all the deficiency is made up by donations from Hamdard National Foundation. Thus, even though the respondent is showing losses, it has means to find alternative accommodation. This is also obvious from the fact that respondent No. I purchased properties only a couple of years before the permission was sought by the petitioners. Thus whether respondent No. I is an agency of Hamdard Dawakhana (Waqf) or the Hamdard National Foundation is not relevant and it does not make any difference to the petitioners' case.
(9) In my view, thereforee, the contention that since respondent No. 1 is making losses, permission should be refused cannot be accepted.
(10) It is true that this Court in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India does not re-appreciate the evidence and upset finding of facts. In the present case, however since the Competent Authority as well a.s the Financial Commissioner have ignored the evidence on record and failed to consider the totality of circumstances and all relevant factors while refusing permission, the two orders cannot be sustained.
(11) I, thereforee, allow the petition and set aside the orders dated 3rd August, 1972 and 11th December, 1972. The petitioners are granted permission under Section 19(1) of the Act to file eviction petition .against the respondent. No costs.