B.N. Kirpal, J.
(1) In this petition under article 227 of the Constitution the petitioners-tenants are challenging the order dated 12th March, 1975 passed under section 19(l)(a) of the Slum Areas (Improvement & Clearance) Act, 1956, whereby permission to file eviction petition was granted to the respondents No, 2 and 3.
(2) The petitioners are tenants under the respondents No. 2 and 3 of the Barsati of the second floor of the house bearing No. 1368, Kucha Ustad Hamid, Bazar Gulian, New Dariba, Delhi on a monthly rent of Rs. 34.00 .
(3) Some time in the year 1970 an application had been filed by the respondents /landlords seeking permission u/s 19(l)(a) of said the Act, that application was rejected and the permission not granted by the Competent Authority vide order dated 8th September, 1970. By the said order it was held that the emoluments of the tenants came to Rs. 339.00 per month, but that was not sufficient to enable the petitioners to get alternative accommodation without creating another slum.
(4) An appeal was filed by the respondents/landlords against the aforesaid order. The financial commissioner dismissed the appeal by this order dated 21st December, 1970. In the said order it was held that the income of the family could not be taken to be more than Rs. 355.00 per month and that cannot be regarded as sufficient for enabling the petitioner to find another suitable accommodation.
(5) Within less than 2 years of the disposal of the appeal by the financial Commissioner, the respondents field another application under section 19 of the Act. By this application, which was filed on 22nd July, 1972. permission was once again sought for instituting proceedings of eviction against the petitioners.
(6) Both the petitioners as well as the respondents/ landlords filed their respective affidavits, wherein the landlords contended that the petitioners had sufficient means of finding analternative accommodation. The petitioners controverter this contention. The petitioners further raised the plea of resjudicata. It was contended that the earlier application under section 19 was dismissed on the same ground and there was no material change in the circumstances and as such the present petition was not maintainable.
(7) By order dated 12th March, 1975 Shri GS. Jain, the then Competent Authority, allowed the application under Section 19(l)(a). It was held that the principles of res-judiciala are not applicable because since the filing of the last petition there had been increase in the salary of Smt. Sarbati Devi petitioner No. 1, with regard to the income-it was found by the competent authority that the total income of the petitioners was Rs. 385.00 per month. According to the competent authority, the petitioners were in occupation of covered area of 96 sq. ft. The competent Authority held that the petitioners could get alternative accommodation at 0.35 paise per sq. ft. and in this way the alternative accommodation would not cost them more than Rs. 33.60 p.m. and they could in a.ny case afford to spend up to Rs. 46.20 per month which represented 12% of the total income of Rs. 385.00 per month,
(8) In the present petition, which has been filed under Article 227 of the Constitution, it has been contended that there are serious infirmities in the aforesaid order of the competent authority Shri A.K. Tandon, counsel for the petitioners has reiterated the contention which has been raised before the the competent authority. It is further contended that there was no evidence on the record on the basis of which the competent authority could come to the conclusion that the petitioners could get alternative accommodation at 0.35 paise per sq. ft.
(9) On behalf of the respondents a preliminary objection has been made. It is contended that the petitioners have defaulted in making payment of rent and as such they are not entitled to any relief under article 227 of the Constitution. Reliance in this behalf is placed by the respondents on full bench authority of this court in the case of Digambar Prasad v. S.L. Dhani etc. I.L.R 1969 Del 1016. On merits the respondent's counsel has relied upon the findings of the competent authority.
(10) Before coming to the merits of the case it is necessary to dispose of the preliminary objections. It has been contended that full amount of rent which was due has not been paid. On the other hand, Shri Tandon has stated that the admitted amount of claim has been deposited in the court. It is further stated that there is some dispute regarding part of the rent which is claimed by the respondents. It is stated at the bar that proceedings regarding the disputed amount are going on before the Rent Control Tribunal. In any event, counsel for the petitioners has given an undertaking that all rent which his clients are directed to pay by any court or tribunal will be paid in accordance with the said orders. It is stated that there was never any intention on the part of the petitioners not to pay the rent. During the period 1975 to 1977 the petitioner No. I was not paid any salary and that is why there was some default in making payment but the admitted amount of rent has since been paid.
(11) It is no doubt true that the full bench held that a court would be justified in not exercising its discretion in favor of a tenant who in spite of opportunity offered to him fails to pay the arrears of rent. The judgment does not lay down the preposition of law that in every case where default in payment of rent is committed even for good or justified reasons, the court must refuse to exercise its discretion, it is no doubt true that the payment of rent is an essential requisite for the occupation of the premises by the tenant. In a case like this where the admitted amount of rent has been deposited, though late, the court would be justified in entertaining a petition under Article 227 of the Constitution, if, by the time, the petition comes up for hearing the admitted amount of rent has been offered. I have no reason to disbelieve the statement made by the learned counsel for the petitioners at the bar, namely that the admitted amount of rent has already been paid. This being the position, in my opinion the ratio in the aforesaid full bench case is not applicable. It will be pertinent to note that the competent authority, while passing the impugned order, did not note that they were in any arrears of rent which were due from the petitioners. According to the petitioners as is evident from the order passed by Sh. Avadh Behari Justice in C.M. 697/78 the petitioners were admitted to be in arrears from February, 1976 onwards. The respondents, of course, are claiming arrears of rent with effect from 1st September, 1971. It is now stated that the Rent Controller had found that the rent with effect from 1.9.19/1 was due by his order dated 26th February, 1980. It is further stated by the counsel for the petitioners that the amount ordered to be paid has been deposited by the petitioners on 10th April, 1980 and that the future rent of Rs. 34.00 is being deposited regularly. In these circumstances I am of the opinion that the preliminary objections of the respondents cannot be accepted.
(12) Reference is also made to the case of Gaurishankar v. Suraj Bhan, C.W. W 808/71 decided by Rajinder Sachar, Justice. On 25th Feb, 1972. In this case also it was held that the conduct of the petitioners in refusing to pay rent regularly disentitles them. I have already held that when in compliance with the court's order, the admitted amount of rent is paid and there are no such arrears at a time when the petition comes up for hearing, the court would be justified, in appropriate cases, in exercising its discretionary power under Article 227 of the Constitution.
(13) The order of the competent authority has to be quashed because it suffers from the following infirmities :
(A)(It-has been presumed by the Competent Authority that the petitioners would be entitled to obtain alternative accommodation of equal size at 0.35 paise per sq. ft. There is absolutely no evidence on record for the Competent authority to come to such a finding. At what rate alternative accommodation can be obtained is essentially a question of fact. No averment has been made to the effect that the petitioners would be entitled to get alternative accommodation at 0.35 paise per sq. ft., Reliance on behalf of the respondents has been placed on an authority of V.D. Mishra, Justice in the case Smt. Raj Rani v. Dwarka Das 1972 Del 208. In this case, the competent authority has held that a person living in a slum area could get alternative accommodation at less than 0.35 paise per sq. ft. and he cannot be expected to pay more than 12 percent of his monthly income by way of rent. This principle of payment of up to 12/o of the monthly income as rent was accepted by the learned Judge. There was no challenge to the finding that alternative accommodation could be obtained at 0.35 paise per sq. ft. What is the prevalent rent for similar accommodation is essentially a question of fact. It was for the landlord to prove that alternative accommodation could be obtained by the tenant without the tenant raising another slum. The landlords in this case have failed to discharge the burden of proof. And (b) It will be seen that when the earlier petition for eviction was filed, the permission under section 19 was refused, notwithstanding the fact that financial commissioner had found that the total emoluments were Rs. 355.00 . Assuming that alternative accommodation for 0.35 paise per sq. ft. would be obtained even at that time, then accommodation could have been available to the petitioners for Rs. 33.60 per month. Nevertheless, both the competent authority as well as the financial commissioner came to the contrary conclusion.
(14) A mere increase of Rs. 30.00 in salary per month is not enough for exchange of circumstances to justify the entertainment of another pertition. The reasoning which has been adopted by the Competent Authority in this case in granting permission to take steps, namely as the petitioners can get another accommodation for Rs. 33.60 per month, was the same which could have been adopted in the earlier petition. It is not as if the petitioners are able to afford alternative accommodation by reason of the increase in the income from Rs. 355.90 to Rs. 385.00 per month. The learned counsel for the petitioners has rightly relied upon the judgment of S. Rangarajan, Justice in C.M. (M) 134171 decided on 22nd November, 1971. Chaman Lal v. P.S. Varshnaya. It was held in that case that though there was no bar to a land- lord applying for permission to evict the tentant in occupation of premises despite the dismissal of the earlier application but such a new application would be maintainable only if there was a change in the circumstances which change would enable such permission to be granted. In other words the permission is to be granted by reason of the change which has occurred. Mere increase in the total emoluments by Rs. 30.00 per month is not a change which can enable the permission to be granted. For this reason also, the order of the compatent authority is not correct,
(15) It is further averred that the competent authority was wrong in taking the area in occupation of the petitioners as 96 sq. ft. according to the petitioners, the accommodation in their occupation was a room of 17'ftX9'ft i.e. 153 sq. ft. There is a question of fact which has been challenged in the petition and in any case which I would not go into under Article 227 of the Constitution. In arriving at the figure of 96 sq. ft. the competent authority has relied upon a plan stated to have been placed on the record by the petitioners themselves. This indicates that the competent authority was justified in coming to the finding that the petitioners were in occupation of 96 sq. ft. of the area.
(16) It is further contended that the status of the family has not been considered. This is not quite correct The competent authority has applied the rule that 12% of the total emoluments are to be spent for rent and that the other emoluments namely 88% are spent by the family for other requirements. It is not, however, necessary to go into this aspect in greater details because the petition is being allowed on other grounds.
(17) For the aforesaid reasons the petition is allowed and the order dated 12th March, 1975 passed by the Competent Authority allowing the respondents' application under section 19 is quashed. Parties to bear their own costs.