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Digambar Prasad Vs. S.L. Dhani Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 11 of 1968
Judge
Reported inILR1969Delhi1016
ActsSlum Area (Improvement and Clearance) Act, 1956 - Sections 19(4); Constitution of India - Article 226
AppellantDigambar Prasad
RespondentS.L. Dhani Etc.
Advocates: H.R. Sawhney,; C.V. Francis and; Y. Dayal, Advs
Cases Referred and Chander Bhan v. Chattar Singh and
Excerpt:
.....appellant was poor and could nto find alternative accommodation could nto stand in the way of the respondent from getting the eviction order. as would appear from the resume of facts given above, the petitioner, who owed arrears of rent failed. an eviction order was thereafter made against the petitioner because of his failure to pay the rent. even in the course of the proceedings under section 19 of the act the petitioner failed to pay the arrears of rent and permission to execute the ejectment order was granted against him. , speaking for the court, observed :proceedings by way of certiorari are 'nto of course'.(vide halsbury's laws of england',hailsham edition, volume 9, paras 1480 and 1481, pages 877-878). the high court of assam had the power to refuse the writs if it was satisfied..........course of the proceedings under section 19 of the act the petitioner failed to pay the arrears of rent and permission to execute the ejectment order was granted against him. in our opinion, the above conduct of the petitioner disentitles him to obtain the relief sought by him in this petition under article 226 of the constitution of india. the petitioner in the present case seeks a writ of certiorari to quash the order of the competent authority, the grant of such a writ is in the discretion of the court and the petitioner is nto entitled to it as a matter of course. such a discretion has to be exercised judicially to further the cause of justice and nto arbitrarily and capriciously or in a manner which results in manifest injustice. the court would be justified in declining to exercise.....
Judgment:

H.R. Khanna, J.

(1) This writ petition has been referred to Full Bench in pursuance of the order of Dua, C.J. (as he then was) and Rangarajan. J. in the following circumstances.

(2) Digambar Prasad, proprietor of Musaddi Mal Brothers, is occupying the shop in dispute bearing Municipal No. 1791. situate in Dariba Kalan, Delhi, as a tenant of Shrimati Devi Jain and Shrimati Gun Wanti Devi Jain respondents 2 and 3. The petitioner is carrying on jeweller's business in the shop. On October 28, 1964 respondents 2 and 3 filed a petition under the Delhi Rent Control Act for the eviction of the petitioner from the shop on the ground that for the period till September 30. 1964, Rs. 1,180 were due from the petitioner on account of arrears of rent at the rate of Rs. 46.00 per mensem and that he had refused to pay the said amount in spite of a registered notice. The petitioner was also alleged to have sublet a portion of the shop without the consent of respondents 2 and 3.

(3) The application of the respondents was resisted by the petitioner. He denied the allegation that arrears of rent were due from him and that he had sublet any part of the shop. The petitioner also prayed for fixation of the standard rent. On May 9, 1965 the Additional Controller passed an order under Section 15(1) of the Delhi Rent Control Act and directed the petitioner to pay or deposit the arrears of rent at the rate of Rs. 46.00 permensem within one month from the date of the order and to continue paying or depositing the future rent month by month at the same rate, during the pendency of the eviction proceedings. The petitioner went up in appeal against that order but his appeal was dismissed by the Rent Control Tribunal as per order dated January 31, 1966. The petitioner failed to comply with the order made under Section 15(1) of the Delhi Rent Control Act by paying or depositing the arrears within the prescribed period. The defense of the petitioner was thereupon struck off by the Additional Controller under Section 15(7) of the above Act on March 30, 1966. The Additional Controller thereafter went into the question of the liability of the petitioner to be evicted and the standard rent of the shop in dispute. As per order dated November 26, 1966 the Additional Controller held that respondents 2 and 3 had failed to prove that the petitioner had sublet any part of the shop. The petitioner, was however, held to be liable to be evicted as he had admittedly nto made any payment or deposited the arrears of rent in compliance with the order passed under Section 15(1) of the Delhi Rent Control Act, The standard rent of the shop was fixed to be Rs. 20.00 per mensem with effect from the date of application, i.e.. October 28, 1964.

(4) As the shop in dispute was situated in a slum area, in February 1967 respondents 2 and 3 filed an application under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (No. 96 of 1956) (hereinafter referred to as the Act) for permission to execute the order of the Additional Controller dated November 26, 1966. It was stated in the application that the petitioner was a man of means and was living in his own house situate near Mori Gate, Delhi. Part of the house was stated to have been let out by the petitioner. It was also stated that previously the competent authority under the Act had granted permission to the respondents to execute an earlier order for the eviction of the petitioner. The petitioner was further stated to have nto paid rent for 57 months except for a sum of Rs. 200.00.

(5) The above application was resisted by the petitioner and he denied the allegations of respondents 2 and 3. The petitioner stated that he was a poor man and his income from business was about Rs. 200.00 per mensem which was hardly sufficient to maintain him and the members of his family. The petitioner, however, admitted that he was living in his ancestral house and that a portion of that house was in possession of some old tenants. According to the petitioner he was nto able to arrange for alternative accommodation because of his poverty. The Competent Authority appointed under the Act granted the permission sought by respondents 2 and 3 as per order dated December Ii, 1967. In the course of the order, while granting the permission, the Competent Authority observed :

'IN the eviction order itself there is a mention of arrears of Rs. 1,180.00 According to the petitioners, the arrears have now accumulated to Rs. 3,100.00 It has been argued by the petitioners that the respondents have paid only Rs. 20.00 (Rs. 200.00 on account of rent since the 1st April, 1962, and that the eviction order, for whose execution the permission is being sought, is the 3rd against the respondents. Under these circumstances, I do nto think that a deposit of Rs. 740.00 by the respondents meets the entire claim of the petitioners. Since the respondents have nto been paying rent regularly in spite of the eviction orders, I am of the view that they are nto entitled to any protection under Slum Areas (Improvement and Clearance) Act, 1956 and the question of status of the respondents is nto relevant to the present petition. In view of the above, permission asked for is hereby granted.'

(6) On January 5, 1968 the petitioner filed the present petition under Article 226 of the Constitution of India praying for the issuance of a writ for quashing the order dated December 11 1967 made by Shri S. L. Dhani, Competent Authority, respondent No. 1.

(7) The petition was admitted on January 8, 1968 and it was directed to be heard by Division Bench. At the lime of the hearing of the petition it was argued on behalf of the petitioner that the primary requirement to be gone into in an application under Section 19 of the Act was the status of the tenant and his means to get an alternative accommodation. If this criteria, it was submitted, was nto kept in view, the order of the Competent Authority should be considered to be patently wrong. The above contention was controverter on behalf of the respondents. It was further submitted that the relief in a writ petition being discretionary, it would be unjust to give protection to the petitioner under Section 19 of the Act. The learned Judges constituting the Division Bench referred to the provisions of sub-section (4) of Section 19 of the Act and observed that the question whether alternative accommodation within the means of the tenant would be available if he were evicted, could nto be considered to be irrelevant as had been assumed by the Competent Authority. The Competent Authority in this view of the matter was held to have nto acted in accordance with Section 19(4)(a) of the Act. Question, however, arose, in the opinion of the learned Judges, whether in view of the fact that the petitioner was admittedly in arrears of rent, this Court in exercise of its discretion should decline to interfere with the impugned order or whether the Court should direct the Competent Authority to come to a decision after taking into account the factors mentioned in Section 19(4)(a) of the Act. It was considered proper that the matter should be decided by a larger Bench. The case, in the circumstances, has been placed before the Full Bench.

(8) The Act came into force on February 8, 1957. It was amended by Amendment Act No. 43 of 1964. The amending Act came into force on February 28, 1965. Section 19 of the Act reads as under :-

'19. Proceedings for eviction of tenants nto to be taken without permission of the competent authority :-

(1) Notwithstanding anything contained in any other law for the time being in force, no person shall. except with the previous permission in writing of the competent authority:-

(A) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or

(B) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order.

(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed.

(3) On receipt of such application, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission.

(4) In granting or refusing to grant the permission under sub-section (3), the competent authority shall take into account the following factors, namely :-

(A) whether alternative accommodation within the means of the tenant would be available to him if he were evicted;

(B) whether the eviction is in the interest of improvement and clearance of the slum areas;

(C) such other factors, if any, as may be prescribed.

(6) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.'

Sub-section (4) of Section 19 was inserted by Act No. 43 of 1964. Some other alterations were also made in the Section but we are nto concerned with them in the present case. Mr. Sawhney on behalf of the petitioner has argued that the only factors, which have to be taken into account by the Competent Authority while granting or refusing to grant the permission under Section 19 of the Act, are those specified in clauses (a) and (b) of sub-section (4) of that Section. So far as clause (c) of that Section is concerned, it is the common case of the parties that no other factors have been prescribed under that clause. According to Mr. Sawhney, if the case is nto covered by clauses (a) and (b) of sub-section (4) and it is nto shown to the satisfaction of the Competent Authority that an alternative accommodation within the means of the tenant would be available if he were evicted or that the eviction is in the interest of improvement and clearance of the slum areas, the application under Section 19 should be dismissed irrespective of the fact whether the tenant commits default in paying the arrears of rent. The matter, while deciding an application under Section 19, has according to Mr. Sawhney, to be looked at from the angle of the tenant and nto that of the landlord. Reference in this connection is made to (1) the decision of Jyoti Pershad v. Union Territory of Delhi wherein the constitutional validity of Section 19 of the Act, as it stood before the amendment made by Act No. 43 of 1964, was upheld. Ayyangar, J., speaking for the Court in that case, observed :

'THE Act, no doubt, looks at the problem nto 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 thereforee 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 nto be evicted unless alternative accommodation could be obtained for him.'

(9) As against the above, Mr. Yogeshwar Dayal on behalf of respondents 2 and 3 has argued that the conduct of the tenant in refusing to pay the arrears of rent is a relevant factor which can be taken into account by the Competent Authority in deciding an application under Section 19 of the Act. To ignore that factor would have the effect of allowing a tenant to remain in occupation of the rented premises without payment of rent. The remedy of a separate suit for recovery of rent, it is pointed out, may prove to be illusory and ineffective in case the tenant is nto in possession of any attachable property. Reference has been made by Mr. Yogeshwar Dayal to the provisions of sub-section (2) of Section 20B of the Act which deals with the liability to pay rent of a tenant other than one who is placed in possession of a building in pursuance of a direction issued under sub-section (4) of Section 20A of the Act. Reliance has also been placed by Mr. Yogeshwar Dayal on two cases, Shrimati Parvati Devi v. Tibbia College Board, Delhi and another, and Chander Bhan v. Chattar Singh and another. In Parvati's case the appellant was taken as a temporary employee by the respondent and given a quarter on condition that it should be vacated when the appellant ceases to be an employee. The appellant refused to vacate the quarter on termination of her services. The respondent took proceedings under the Delhi Rent Control Act for the eviction of the appellant. In that case an order for the eviction of the appellant was made and she was given one year to vacate the quailer. The respondent thereafter moved an application under Section 19 of the Act for obtaining permission to evict the appellant. The permission was granted. The appellant then tiled a writ petition to quash the order granting the permission. The writ petition was dismissed. On appeal the learned Judges of the Division Bench, S. B. Capoor and S. K. Kapur, JJ. held that the mere fact that the appellant was poor and could nto find alternative accommodation could nto stand in the way of the respondent from getting the eviction order. In the case of Chander Bluin, Dua, C.J. (as he then was), while dealing with an application under Section 19 of the Act, observed :

'TO restrain execution of the order of eviction against him would virtually amount to conferring on him a right to remain in possession without paying any rent and the owner will have to go on instituting successive proceedings for rent every month, the decrees in which may or may nto be fully executed. This factor would thus seem to be quite relevant and germane for being taken into account in granting or refusing permission under section 19.'

(10) It is nto necessary to express any opinion on the merits of the above contentions advanced on behalf of the parties because we are of the view that this Court should not, as urged on behalf of respondents 2 and 3, interfere with the impugned order in the exercise of its discretion. As would appear from the resume of facts given above, the petitioner, who owed arrears of rent failed. to deposit or pay the same in spite of an order having been made under Section 15(1) of the Delhi Rent Control Act. The defense of the petitioner in eviction proceedings was consequently struck off. An eviction order was thereafter made against the petitioner because of his failure to pay the rent. Even in the course of the proceedings under Section 19 of the Act the petitioner failed to pay the arrears of rent and permission to execute the ejectment order was granted against him. In our opinion, the above conduct of the petitioner disentitles him to obtain the relief sought by him in this petition under Article 226 of the Constitution of India. The petitioner in the present case seeks a writ of certiorari to quash the order of the Competent Authority, The grant of such a writ is in the discretion of the Court and the petitioner is nto entitled to it as a matter of course. Such a discretion has to be exercised judicially to further the cause of justice and nto arbitrarily and capriciously or in a manner which results in manifest injustice. The Court would be justified in declining to exercise such a discretion in the petitioner's favor where he does nto come to the Court with clean hands or his conduct otherwise is such that it would be inequitable and unjust to grant him the relief. The payment of rent is an essential requisite of the occupation of premises by the tenant. A tenant normally cannto insist upon occupation of a premises without payment of rent. The Court in any event would be loath to exercise its discretion in favor of a tenant who in spite of opportunity offered to him fails to pay the arrears of rent. Any other approach would have the effect of putting a premium on the default committed by a tenant.

(11) We may in this context refer to the observations on the subject of writ of certiorari on page 140 of Halsbury's Laws of England, Volume Ii, Third Edition, which read as under :-

'ALTHOUGH the order is nto of course it will though discretionary nevertheless be granted ex debito justitiae, to quash proceedings which the Court has power to quash, where it is shown that the court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and nto merely by one of the public and if the conduct of the party applying has nto been such as to disentitle him to relief;'

In the case of A. M. Allison and another v. B. L. Sen and others, Bhagwati, J., speaking for the Court, observed :

'PROCEEDINGS by way of certiorari are 'nto of course'. (Vide Halsbury's Laws of England', Hailsham Edition, Volume 9, paras 1480 and 1481, pages 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High Court in applications under Article 226, we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are nto so satisfied. We are of opinion that, having regard to the merits which have been concurrently found in favor of the respondents both by the Deputy Commissioner, Sibsagar, and the High Court, we should decline to interfere.'

(12) The writ petition consequently fails and is dismissed, but, in the circumstances, without costs.


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