Shadi Lal (Deceased) Through Lrs. vs Competent Authority & Ors.
2000 Latest Caselaw 668 Del

ORDER

Manmohan Sarin, J.

1. The present petition dated 20.2.1978, had been instituted by Shri Shadi Lal on assailing the order dated 12.1.1978, passed by respondent No. 1 competent authority granting permission to the respondent/land-lords under Section 19(1) (a) of the Slum Areas (Improvement and Clearance) Act.

2. Rule in the writ petition was issued on 22.3.1978 and vide orders dated 19.3.1979, the operation of the impugned order was stayed. It was further clarified by another order dated 24.10.1985, that the eviction proceedings instituted by the respondent also stand stayed.

3. During the pendency of the present petition, the petitioner Shri Shadi Lal had expired and his legal heirs were brought on record. It may also be noted that respondent No. 2 also expired on 19.11.1989 and the petitioner failed to take any steps for bringing the LRs. on record. Learned counsel for respondent No.1 submits that since respondent 2 and 4 in the instant case had relinquished their share in favour of respondent No.3 vide registered relinquishment deed dated 19.3.1982 and it is the respondent No.3, who has interest in the property, he has not raised in the present petition, the objection of abatement of the petition.

4. The Competent Authority passed the impugned order, holding that once default in payment of rent was established, permission under Section 19 of the Slum Areas (Improvement and Clearance) Act was to be granted, without enquiring into the financial status of the tenant and discretion could not be exercised in favour of tenant if in arrears of rent.

5. The petitioner has in the petition assailed the above decision on the ground that the impugned order ignores that the arrears of rent stood recovered and paid on 16.8.1976. The application for permission was filed on 8.7.1976. As such there were no arrears pending when the court was seized of the matter. In other words, the submission is that since the arrears of rent had been received by the respondents in the court of Shri R. Dayal, the then Additional Judge, Small Cause Court, Delhi, the grounds relating to arrears of rent was not available at the time of decision of the application for permission.

6. The petitioner also makes the grievance that the Competent Authority erred in not noticing the other grounds, on which the eviction of the petitioners was sought and erred in passing the order only on the ground of non-payment of arrears of rent, which also stood paid. This as per the petitioner amounted to abuse of the legal process. It is claimed in the petition that the judgments relied on Abul Ghafoor Vs. Abdul Wahid etc. - 1976 R.L.R. Note 62 was not applicable and was distinguishable. It is also contended that the Competent Authority fell into error in not relying on the factors required to be considered in terms of Section 19 (4) of the Slum Areas (Improvement and Clearance) Act, 1956.

7. Mr. Sanjiv Sachdeva, learned counsel for the respondent, has been heard in opposition to the petition. The factum of the petitioner being in arrears of rent is not in dispute. It is also established on record that arrears of rent were cleared only on 16.8.1976 and that too in the proceedings instituted for recovery. The cause of action against the petitioner and in favour of the respondent had arisen and the same cannot be wiped out by a subsequent payment. The petition seeking permission under the Slum Areas (Improvement and Clearance) Act 1956 would lie. It is a different matter that the petitioner may be entitled to the benefit of protection under Section 14(2) of the D.R. Control Act 1958, from eviction in the case of first default.

8. The second contention raised in the petition is that the impugned order was vitiated by non-consideration of the grounds under Section 19 (4), based on which alone the permission for institution of proceedings under the Slum Areas (Improvement and Clearance) Act, 1956 could be given. The above contention of the petitioner runs counter to the pronouncements of this Court. Reference in this regard may be made to Abdul Gafoor Vs. Abdul Wahid (Supra), wherein it is held that the permission under Section 19 may be granted without enquiring into the financial status of the tenant, if he is in arrears of rent. Discretion cannot be granted in favour of such a person. Again this Court in Chander Bhan Vs. Chattar Singh - 1968 DLT (IV) 501 held that default of a tenant would be quite relevant and germane for being taken into account in granting or refusing permission under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956. Reference may also be usefully made to the Full Bench decision of this Court in Digambar Prasad Vs. S.L. Dhani etc. - . In the cited case, the question before the Full Bench was whether in view of the fact that petitioner was admittedly in arrears of rent, the Court in exercise of its discretion should decline to intervene with the impugned order granting permission under the Slums Act 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 urged on behalf of the tenant that the facts, which have to be taken into account by the Competent Authority, while granting or refusing to grant the permission under Section 19 were those specified in Sub Section 4 of the said Section. This should be irrespective of whether the tenant had committed default in paying the arrears of rent. It was urged that the matter had to be looked at from the angle of the tenant and not that of the landlord. The above contentions were repelled by the Full Bench after analysing the facts of the case in which the tenant had been in default and had failed to pay the rent despite orders under Section 15(1) of the Rent Control Act and even during the course of proceedings under Section 19. The Full Bench observed as under:-

"In our opinion, the above conduct of the petitioner disentitle 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 favour 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 favour 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."

9. Considering that in the present case also the tenant despite notice had failed to pay arrears, which were for the period 1973 to 1976 and a suit for recovery had to be instituted during which proceedings the arrears were recovered, the Competent Authority cannot be faulted with for granting permission under Section 19 of the Act. The writ petition has no merit and is dismissed.