H.L. Anand, J.
(1) Whether the tenant is disentitled by virtue of his past conduct to the relief of quashing of the order of the Competent Authority granting permission to the landlord to institute eviction proceedings, which is otherwise patently bad and liable to be quashed, is the only question that this petition under Article 226 of the Constitution raises.
(2) Landlord sought leave of the Competent Authority to institute proceedings to evict the tenant. Eviction was sought on the ground of bona fide personal need of the landlord and default in pa.yment of rent. Leave was sought to be justified on the ground that the requirements of Section 19 of the Slum (Improvement & Clearance) Act, 1956 were satisfied. Application was resisted by the tenant on the ground that, having regard to his financial status and the extent of the family, he would not be able to make alternative accommodation. The Competent Authority granted leave to file appropriate proceedings without devoting attention to any of the requirements of Section 19 of the Act, on the ground that by virtue of being in default in the payment of rent, the tenant was disentitled to the protection of the aforesaid provisions.
(3) At the hearing of the petition, it was not disputed that the impugned order suffered from a fatal infirmity and could not possibly be saved on any reckoning. A plea was, however, made, based on the decision of a Full Bench of this Court, (1) that even so the conduct of the tenant disentitled him to discretionary relief under Article 226 of the Constitution.
(4) There was considerable controversy before me as to the effect, scope and implications of the Full Bench decision, as indeed, in respect of questions as to the nature of the conduct which could be legitimately taken into account in the grant of discretionary relief in proceedings under Article 226 of the Constitution of India, as to whether the Full Bench laid down a rule of universal application in all cases in which a tenant was in default or if the decision of the Full Bench must be read down in the context of the peculiar circumstances of that case, as to the doubts cast on the correctness of the decision by a Division Bench of this Court (2), as to the desirability of a reference of the questions for consideration to a larger Bench, as also if the facts and circumstances of the present case could be legitimately distinguished and the necessary relief granted as was done by the Division Bench.
(5) The facts and circumstances leading to the decision of the Full Bench are unfortunately not fully reflected in the judgment of the Full Bench. These are brought out in detail in the order of reference. The tenancy was of the year 1955. In November, 1958, arrears of rent amounted to more than Rs. 1,706.00 as a sequel to which landlord filed the suit for eviction. In January, 1959, compromise decree was passed and out of the arrears amounting to Rs, 1,900.00 at that time Rs. 900.00 was paid and balance was agreed to be paid by Installments of Rs. 100.00 p.m. It was further agreed that in the event of default, tenant was liable to be evicted. The tenant nevertheless fell in arrears again and in August, 1960, fresh proceedings were filed for eviction on the ground of non-payment of rent. The arrears then amounted to over Rs. 1000.00 . In the month of November, i960, another order of ejectment was made but was not to be executed if the tenant paid Rs. 800.00 by Installments of Rs. 100.00 p.m. This was based on a compromise. The Installments were not paid and the matter was taken to the Competent Authority for permission to execute the eviction order. In January, 1962, Competent Authority granted the permission. The order granting permission was ex parte as the tenant failed to appear in spite of notice, which was returned with the remarks 'refused'. The notice had been pasted outside the disputed premises but even then the tenant failed to appear. The Authority, however, granted time up to 31/1/1962. Parties were related to each other and the execution proceedings were not initiated in spite of permission to do so having been granted and in February, 1964, the tenant was asked to pay the arrears The tenant again made default and when the execution of the eviction order was sought, tenant took up the plea that in view of the intervening notice to pay rent, there was a fresh contractual tenancy and the order of eviction had become unexecutable. It is in these circumstances that proceedings for eviction were filed in October, 1964 for the third time grounded on default in payment of rent. During the pendency of the proceedings, the tenant did not pay or deposit any rent in spite of an order under Section 15(1) of the Delhi Rent Control Act, which was upheld in appeal. As a sequel to this, the defense of the tenant was struck off in November, 1966, and an order of ejectment followed. Permission of the Authority was sought to execute the order of ejectment. It was pointed in the application that a permission for executing the order had been made oa an earlier occasion. It was also brought out that the tenant was a man of means, was living in his own house, part of which had been let out by him. This fact was admitted by the tenant In the proceedings before the Authority, the tenant offered to pay a sum of Rs 500.00 which was, however, turned down by the landlord on the ground that the total arrears then stood at Rs. 3,100.00. Subsequently, the tenant deposited a sum of Rs. 740.00. The Authority accordingly held that the tenant was not entitled to any protection since the tenant failed to pay rent regularly in spite of the 'eviction orders'. It was further pointed out that as against the accumulated arrears of Rs. 3,100.00, the tenant had only deposited Rs. 740.00. Before the Division Bench, a number of questions were raised on behalf of the parties and a number of authorities were cited in support of rival contentions. This is how the operative part of reference reads :
'THEquestion, however, remains if in view of the earlier decision of the Competent Authority granting permission to execute an earlier order of eviction and in view of the fact that admittedly the tenant has a house of his own in which he is residing, and a portion of which has actually been let out to some tenants, and further in view of the fact that he is admittedly in arrears of rent, this Court has discretion to decline to interfere with the impugned order or that it is bound, as a matter of law, to quash the order and direct the Competent Authority to take into account the factor mentioned in Section 19(4)(a) of the Slum Areas Act and then come to its decision whether to grant or refuse to grant the permission to execute the order of eviction. The state of the decisions to which our attention has been drawn is such that we consider it proper to have this matter finally determined by a larger Bench. The case may now be placed before a Bench of three Judges.'
(6) Before the Full Bench, a number of contentions were raised on behalf of the parties with regard to the factors that could be legitimately taken into account by the Authority while granting or refusing permission. The Full Bench did not deal with any of these questions but expressed the view that 'the conduct of the tenant disentitled him to obtain relief sought by him under Article 226 of the Constitution. This is what the Full Bench said :-- It is not 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 not entitled to it as a matter of course. Such a discretion has to be exercised judicially to further the cause of justice and not 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 not 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 cannot 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.' The Full Bench relied on a passage from Halsbury's Laws of England to the effect that though the order is not of course it will though discretionary nevertheless be granted ex debito justitiae, 'if the conduct of the party applying has not been such as to disentitle him to relief.' The Full Bench also relied on a decision of the Supreme Court in the case of A.M. Allison and another v. BL. Sen and others : (1957)ILLJ472SC
(7) THE. contention that a petitioner seeking relief under Article 226 of the Constitution of India would be denied relief to which he may otherwise be eminently justified, if he was guilty of conduct which may disentitle him to such relief, posed a number of difficult, as indeed, interesting questions, such as the nature of the conduct that could be taken into account and the degree of misconduct of which the party may be guilty. It is possible to read in the principle a limitation that the conduct must be relative to either the proceedings in relation to which relief is sought or proceedings in the petition itself, or relevant to the questions in controversy, either in this Court, or before the Authority, whose orders may be under challenge Would conduct, which is outside such limitation, but nevertheless relatable to the broad relationship between the parties before the Court be relevant Unfortunately, the Full Bench did not pose these problems or perhaps the parties did not pose these problems and. the Full Bench assumed that a tenant in default in the matter of rent would be disentitled to relief even though default in payment of rent was not one of the questions in controversy either before the Full Bench or before the Authority, whose order was under challenge. If such a question had been posed, the Full Bench would have been faced with a serious difficulty in that, by and large, in the history of writ jurisdiction, both in India and in England, the conduct which disentitled a person to relief was invariable conduct either in relation to the proceedings before the Court or the proceedings before the Authority, whose order was under challenge, and partook the character either of concealment of material facts, misrepresentation, attempt to overreach the Court or a statutory authority and the like, but conduct which had nothing to do with this was rarely taken into account in refusing relief which was otherwise eminently justified having regard to the limits of the jurisdiction or functions of the subordinate authority in exercise of statutory power. Interestingly enough, the passage quoted from the Halsbury's Laws of England threw no light on the nature of the conduct and the decision of the Supreme Court relied upon had nothing whatever to do with conduct. In the case of Allison (supra), the Supreme Court found that the decision of the lower Allison (supra), the Supreme Court found that the decision of the lower authority on the merits was well-founded. The High Court had concurred with the decision and the Supreme Court itself was of the same opinion. It was in this setting that they felt that the power to refuse the writ on the ground that there was no failure of justice had been properly exercised by the High Court.
(8) If any conduct of a petitioner would be relevant, it may lead to serious difficulties in the exercise of the writ jurisdiction by the Court not only in cases under the Act before the Full Bench but in the exercise of extraordinary jurisdiction generally in different situations. If a defaulting tenant was disentitled to the relief, would any default disentitle the tenant to such relief or would disentitlement depend on the gravity of the default, its extent, either independently or in conjunction with other circumstances.
(9) While there can be no doubt that the conduct of a tenant, as indeed, any other party to proceedngs, which is connected either with the proceedings or with the question in controversy in the proceedings, would be relevant, there would be legal impediments in taking into account conduct which is either not germane to the questions in controversy between the parties or does .not partake of the character of the manner in which the parties have conducted the proceedings in a Court or before an Authority. Default in payment of rent i;i certain circumstances is one of the grounds for ejectment of a tenant. The protection of Section 19 is, nevertheless, not denied to a tenant against whom an order of ejectment has been made on ground of nonpayment or who may be sought to be ejected on that ground. To deny protection of the Statute to a defaulter in the payment of rent would have the effect of virtually amending the provision of Section 19 and restricting its operation to cases where the tenant has not been in default in payment of rent. If the question as to default in the payment of rent is neither relevant for a decision of the question in controversy before the Court under Article 226 of the Constitution or before the Authority under Section 19, the conduct of the tenant in relation to it could not possibly be taken into account at either of the levels. Whether or not the Court would be entitled to take that into account in granting discretionary relief, it is beyond doubt that the Authority was not entitled to and if the order of the Authority is. thereforee, patently bad in law, is not there a duty to demolish such an order either under Article 226 or in exercise of power of superintendence of this Court apart from the question, if the party seeking relief, is disentitled to it on account of its conduct. But even if it be assumed that the Court was entitled to take that conduct into account it is a little difficult to understand what prevents the Court from compelling the tenant to purge himself of that conduct and either insist on the payment of the admitted amount or even make a conditional order. If Court has discretion in granting relief, it is equally entitled to moderate relief so as to prevent unnecessary hardship being caused to the landlord. Refusal to give relief in the circumstances could be justified only if such refusal on the ground of conduct was intended to be punitive. The Court could perhaps balance the conflicting claims of the parties by making a conditional order.;
(10) If the Full Bench decision could be legitimately understood as laving down a principle of law that a defaulting tenant would not be entitled to relief under Article 226 of the Constitution on a challenge to an order granting permission to institute eviction proceedings or to execute an eviction order already obtained, the decision with respect, would perhaps deserve to be reconsidered not only because its correctness would be open to serious doubt but also because of its wide ramifications in the exercise of extra-ordinary jurisdiction of this Court not only in cases between landlords and tenants but generally and in a variety of situations. I, however, desist from adopting this course for two reasons. In the first instance, I do not read the decision as laying down as a matter of law that the defaulting tenant would be disentitled to relief in all situations and I would presently invite attention to a decision of the Division Bench of this Court which had occasion to consider the decision of the Full Bench. Secondly, a reference in the peculiar facts of the present case would be a luxury which neither the tenant nor the landlord in the case before me can afford. The property in dispute is apparently the only property that the landlord owns. The total rent is Rs. 10.00 per month. By all account, neither party belongs to a class of people which could be asked to have another round of litigation.
(11) In the case before the Division Bench referred to above, the tenant was in arrears for a period of almost 3 years and the suit of the landlord was decreed. The tenant paid the decretal amount by monthly Installments The tenant again fell in arrears for almost 3 years and there was a further decree against him. The tenant deposited the decretal amount. Subsequent rent was sent by the tenant to the landlord but the landlord refused accept it. During the pendency of the petition and before the close of arguments tenant paid rent to the landlord up to date and was not in arrears when the petition was decided. The conduct of the tenant was thus held to be substantially different from that of tenant in the case before the Full Bench in that, there the tenant continued to remain in arrears while in the case before the Division Bench 'the tenant has paid off arrears of rent from time to time and by now he has paid them off completely'.
(12) It has already been pointed above that [the conduct of the tenant in the case before the Full Bench was not merely confined to default in rent but it was a habitual default which compelled the landlord to file proceedings on three different occasions. There were other factors. The permission had already been accorded to evict the tenant but notwithstanding that, he was allowed to stay on, even though he made default. The tenant admittedly not only owned a house but had let out a part of it and that spoke volumes for his status. He had been allowed indulgence consistently by the landlord because of relationship between the parties but he persisted in default in spite of a number of eviction orders and opportunities to pay.;
(13) In the present case, there was only one occasion when the landlord obtained a decree against the tenant. The tenant deposited Rs. 600.00 after an order under Section 15(1) had been made subsequent to which a sum of Rs. 360.00 was tendered to the landlord which he declined to take. Before the conclusion of arguments, the tenant offered to pay the entire balance but the landlord declined to accept obviously in the hope that he may use the default to deny relief to the tenant. The tenant, thereforee, deposited the entire arrears before the conclusion of arguments. The conduct of the tenant, thereforee, could not be said to be such as would disentitle him to relief, irrespective of the way one looks at the conduct that may be relevant
(14) It is, however, not possible to ignore that during the pendency of the present petition, the landlord instituted proceedings for eviction pursuant to the permission granted by the Authority since the order of the Authority granting permission was not stayed, Eviction order has since been made and has become final. If and when the order of the Authority is quashed, it would ordinarily take its own time for permission being granted should the landlord be entitled to it and for the landlord to obtain fresh eviction should he succeed in obtaining permission. If the relief is to be given to the tenant, in such circumstances, it is but proper that a time bound schedule is laid down for conclusion of proceedings before the authority.
(15) I would, thereforee, quash the order of the Authority and remand the case to the Authority for its decision under Section 19 of the Act in accordance with law after giving an opportunity to the parties of being heard. The parties are directed to appear before the Authority on 18/4/1983. The Authority would as far as possible decide the application within three months.
(16) In the peculiar circumstances, parties would bear their respective costs.