Satender Jain vs Satya Narain Sanjiv Gupta Huf
2021 Latest Caselaw 2449 Del

$~4
*         IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 9th September, 2021
+                              RSA 139/2019
          SATENDER JAIN                                   ..... Appellant
                        Through: Mr. Varun Goswami, Mr. Ajay
                                    Kumar Gupta and Ms. Surbhi Gupta,
                                    Advocates (M: 9899950712).
                        versus

          SATYA NARAIN SANJIV GUPTA HUF             ..... Respondent
                       Through: Mr. Ankur Mahindro and Mr.
                                 Abhimanyu Mahajan, Advocates. (M-
                                 9891051888)
          CORAM:
          JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The present petition arises out of impugned judgment and decree dated 9th May, 2019 of the ld. Court of Additional District Judge (Central), Delhi (hereinafter "Appellate Court") by which the appeal filed by the owner/landlord/Respondent (hereinafter "Plaintiff") had been allowed. The said appeal arose out of judgment/decree dated 8th March, 2018 by which the ld. Court of Civil Judge (Central) Tis Hazari Courts, Delhi (hereinafter "Trial Court") had dismissed the suit filed by the Plaintiff.

3. The premises in question is Flat No.3677, Chawri Bazar, Delhi-06 (hereinafter "suit property"). The same was let out by the Plaintiff to Shri Roshan Lal, the sole proprietor of M/s Steel and Metal Stores. The said tenancy was terminated vide notice dated 14th March, 1973 w.e.f. 30th April, 1973. According to the Plaintiff, the tenant had become a statutory tenant

post the said notice as of April, 1973. After the death of Mr. Roshan Lal, his wife - Mrs. Premwati had inherited the tenancy but after her death, the children of Mr. Roshan Lal (hereinafter "Defendant") continued to remain in occupation. In the suit, the Plaintiff prayed for ejectment of the Defendant from the suit property and mesne profits. The prayers are as under:-

"a. decree in favour of plaintiff and against the defendant for ejectment of the suit property bearing flat no.3677, Chawri Bazar, Delhi consisting of 3 rooms open courtyard covered Veranda, bath and W.C. with attached accommodation on first floor as Barsati made of iron sheets on all sides including its room, open terrace on second floor as shown red in the site plan.

b. a decree in favour of the plaintiff and against the defendant for Rs.105907/- as damages for unauthorized use and occupation of the suit property by the defendant.

c. Any other or further relief in favour of the plaintiffs and against the defendants which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

4. The written statement was filed by the Defendant and various defenses were taken after recording evidence in the matter. In the suit, the following issues were framed:-

"1.Whether the plaintiff is entitled to a decree of ejectment in respect of the suit property, as prayed for? OPP

2. Whether the Plaintiff is entitled to a damage for a sum of Rs. 1,05,907/-, as prayed for? OPP

3. Whether the suit of the plaintiff is not maintainable in its present form? OPD

4. Relief."

5. Vide judgment dated 8th March, 2018, the ld. Trial Court came to the conclusion that the suit of the Plaintiff is liable to be dismissed. The findings of the ld. Trial Court are as under:-

"It is the admitted case of the parties that for the purposes of securing the decree for ejectment as per Section 2(L) of DBC Act, 1958 on the ground that original tenant was served with the notice of ejectment and the present occupier of the suit property was not financially dependent on the original tenant at the date of death of the original tenant, the following ingredients are needed to be proved:-

1. Firstly, relationship between the parties as landlord and tenant.

2. Secondly, the premises was let. Out for residential purposes.

3. Thirdly, the contractual tenancy of the residential premises was duly terminated by notice iin writing as provide under the provision of TPA 1882.

4. Fourthly, the persons specified under Section 2(L) must be those who were residing with the deceased tenant and also was financially dependent upon the deceased tenant at the time of his death.

xxx

22. On the basis of above discussion, though it can be safely said that there existed a relationship of landlord and tenant between plaintiff and Late Sh. Roshan Lal and also that suit property was let out for residential purposes and also the fact that a notice under Section 106 TP Act, 1882 has been served to the defendant for termination of tenancy, however, the fact of present defendant not financially-dependent on Late Sh. Roshan Lai has not been pleaded or proved by the plaintiff. In the absence of such pleading and proof, the plaintiff

has not been able to show that after the death of Smt. Premwati, the present defendant has become illegal occupant. Accordingly, this issue is decided against the plaintiff and in favour of defendant. xxx

25. The court is of view that the provisions of the Slum Areas (Improvement and Clearance Act, 1956) are mandatory in nature, and theory of estoppel does not operate against a statute. The court is of further view that if the plaintiff was aggrieved by the order of Slum Authorities, the plaintiff must have approached to the proper forum for redressal of their grievances. Accordingly, in the absence of approval from Slum Authorities, the present suit is not maintainable. Accordingly, this issue is decided against the plaintiff."

6. The Trial Court thus held that the Plaintiff failed to establish that the heirs of Mr. Roshan Lal were unauthorized occupants. It also held that since there was no approval given by the slum authority, the suit was not maintainable.

7. The Plaintiff appealed against the said judgment and cross objections were also filed by the Defendant. By the impugned judgment dated 9th May, 2019, the appeal of the Plaintiff was allowed. The operative portion of the impugned order reads as under:-

"23. Thus, the appeal stands allowed. Consequently, appellant is entitled to a Decree of Possession of premises bearing Flat no. 3677 Chawari Bazar, Delhi as shown in red in the site plan; Rs.1,05,905/- as damages for un-authorized use and occupation of the suit property along with simple interest @ 9% p.a. from the date of filing of the suit till its realization. Appellant has not sought any future damages. Therefore, the same cannot be

granted."

8. The Appellate Court granted a decree of possession in respect of the suit property, as also damages for unauthorized use and occupation along with simple interest, to the Plaintiff.

9. The present second appeal has been filed challenging this judgement and decree of the Appellate Court.

10. The matter has been heard from time to time. Vide order dated 8th October, 2020, on the consent of the parties, the execution proceedings were agreed to not be proceeded with. Thereafter, ld. Counsel for the Defendant, was directed to seek instructions in respect of the payment of market rent w.e.f. 9th May, 2019 i.e. from the date of the Appellate Court decree.

11. On 9th November, 2020, after hearing ld. Counsel for the parties and on the strength of the judgment passed by the ld. Supreme Court in Atma Ram Properties v. Federal Motors [2005 (1) SCC 705], this Court had passed the following order:-

"8. Since the Appellant is stated to be in possession of 830 sq. ft. on the first floor and a tin shed on the barsati, accordingly, ld. Counsel for the Tenant has fairly agreed to pay a sum of Rs. 7,50,000/- at the rate of Rs.50,000/- per month for 15 months, which is the period during which the Appellant enjoyed the use and occupation of the premises. The said amount shall be paid by the Appellant to the Respondent within four weeks from today. The total outstanding sum shall be cleared in two instalments. The first instalment shall be payable on or before 15th December, 2020. The second instalment shall be payable on or before 15th January, 2021.

9. In view of the statement made by the Appellant,

there is no interim order staying the impugned judgment/decree with effect from today. The Respondent is free to execute the decree."

12. Thereafter, the matter has been heard on merits.

Submissions of the Parties

13. Mr. Goswami, ld. Counsel appearing for the Defendant, has primarily raised three issues:-

(i) First, that a decree was passed without permission being granted under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter "Slums Act").

(ii) Second, that the cross objections were not decided by the Appellate Court.

(iii) Third, that no interest could have been awarded on mesne profits.

14. In support of the submission that permission ought to have been taken under the Slums Act, Mr. Goswami, ld. Counsel for the Defendant, relies upon the ld. Division Bench's judgment of this Court in Virender Singh, Bhupender Singh, Rajendra Singh, Pushpa Singh v. State Bank of India, 2012 (127) DRJ 54 to argue that the provision of Slums Act, especially Section 19, would be extended even to occupiers of the property and not merely to tenants. He submits that in the present case, the children of the original tenant (Mr. Roshan Lal), who were in occupation, cannot be directly stated to be tenants. However, even then, the permission under Section 19 of the Slums Act would have to be obtained in order to file a suit for eviction as the area of Chawri Bazar is clearly notified as a slum under the Slums Act.

15. He further submits that the ld. Division Bench judgment clearly observes that the purpose of the provision is for extending protection to occupier's properties in slum areas, there cannot be any distinction made between the persons who are occupying such property in general and tenants in particular. Both categories of persons are entitled to protection. The second authority relied upon by Mr. Goswami, ld. Counsel, is Harish Chander Malik v. Vivek Kumar Gupta & Ors. RFA No. 480 of 2008 wherein a ld. Single Judge of this Court has followed the ld. Division Bench decision in Virender Singh (supra) as also discussed the entire case law on this aspect and held that protection under Section 19 would also extend to occupiers and not merely to tenants. He submits that the judgment in Harish Chander Malik (supra) has been upheld by the Supreme Court.

16. However, Mr. Goswami, fairly concedes that the Plaintiff had initially sought permission from the slum authority and in the said proceedings, the Defendant had taken a position that the petition to seek permission under the Slums Act, would itself not be maintainable since the Plaintiff conceded that the Defendant is an unauthorized occupant. Recording this stand of the Defendant, the application under Order VII Rule 11 CPC filed by the Defendant was allowed by the order of the Trial Court, dated 8th March, 2018. Mr. Goswami submits that this application may have been misconceived owing to a wrong understanding of the law and the same ought not to be held against his client, as there is no estoppel against law.

17. In so far as the second submission of Mr. Goswami, ld. Counsel for the Defendant is concerned, it is his submission that the cross objections have not been considered and have been completely ignored by the Appellate Court. This according to him is the fundamental error in the

Appellate Court's judgment. According to him, in such a case, the only option left in the second appeal would be to remand the matter back to the Appellate Court for deciding the cross objections. Finally, it is submitted that the interest on the mesne profits ought not to be granted as this was a case where the Appellate Court has granted such interest without any prayer by the Plaintiff, asking for the same.

18. On behalf of the Plaintiff, Mr. Abhimanyu Mahajan, ld. Counsel, submits that the Defendant is an unauthorized occupant. He submits that the definition of occupier under Section 2(f) of the Slums Act, includes any person who is occupying the property; however, Section 19 applies not to occupiers but only tenants. He submits that the judgment of the Full Bench of this Court in Punna Ram and Others v. Chiranji Lal Gupta and Others, AIR 1982 Delhi 431 is categorical to the effect that the Section 19 provision would not be required if the proceedings are against occupiers and not against the tenants. Reliance is placed upon paragraphs 7 and 28 of the said judgment.

19. Thereafter, Mr. Mahajan, ld. Counsel, takes the Court through another judgment of this Court in Giri Raj (Since Deceased) Through LRs. v. Deepak Gupta and Others, RSA 151/2012 dated 12th September, 2013 wherein the ld. Single Judge after considering the entire aspect in respect of the permission under the Slums Act, follows the judgment in Punna Ram (supra). The ld. Single Judge also considers the judgment in Virender Singh (supra) and holds that permission under Section 19 would not be required in case the proceedings are against the occupiers.

20. It is further urged by Mr. Mahajan, that the requirement of obtaining permission under Section 19 of Slum Act can be waived by the tenants. In

support of this proposition, reliance is placed upon Shri Chiraguddin v. Smt. Urmila Rani & Ors., (2014) 213 DLT 699 and Tulsi Dass Ahuja (Since Deceased) Through his LRS &. Anr. v. Chattar Singh (Since Deceased) Through his LRS & Anr. 2017, SCC OnLine Del 10964. He submits that in both these matters, the tenant had failed to raise the objection under Section 19 in the written statement and after the decree was passed in the execution proceedings in Shri Chiraguddin (supra), the same was sought to be raised. Under these circumstances, the Court has clearly held that the plea of Section 19 having not been raised initially, the same cannot be allowed to be raised after years of litigation once the decree for eviction has been passed. Similar view was taken in Tulsi Dass (supra).

21. Mr. Mahajan, ld. Counsel, further submits that in so far as the cross objections are concerned, each of the pleas raised in the cross objections has been considered by the Appellate Court. He submits that merely because the Appellate Court failed to finally hold that the cross objections are disposed of, does not mean that the Appellate Court has not taken the same into consideration.

22. In so far as the interest on the mesne profit is concerned, Mr. Mahajan, ld. Counsel, submits that considering the nature of the mesne profit awarded which are just around Rs.1,00,000/- his client is willing to waive the said interest which has been imposed.

Analysis and Findings

23. The Court has considered the submission of the parties as also perused the record. The first and the foremost issue that needs to be considered is whether permission is required under Section 19 of the Slums Act.

24. Permission under Section 19 of the Slums Act: The nature of the suit property is that it is a flat in Chawari Bazaar, which is being used for a commercial purpose and it is nowhere near a slum as is generally understood. In any event, the Plaintiff had filed an application before the competent authority under the Slums Act, wherein an application under Section 151 CPC was moved on behalf of the Defendant therein. In the said application, the stand of the Defendant itself was that the Plaintiff having claimed that the Defendant was an unauthorised occupant, the application before the slum authority would not be maintainable. The competent authority held that under Section 19 of the Slums Act, the word used is 'tenant' and not 'occupier', hence the Defendant is not entitled to any protection under Section 19 of the Slums Act. The relevant portion of the said order is set out as under:

"By this order, I shall dispose of an application dt. 14.05.07 Under Section 151 CPC filed by the respondent. The facts of the case in brief, are that the petitioner HUF has filed an application U/S 19 of the Slum (Improvement & Clearance) Act, 1956, against the respondent seeking permission of this authority to initiate eviction proceedings against the respondent. It was alleged by the petitioner HUF in the main application/petition that the petitioner is the owner of the property being flat no.3677, Chawri Bazar, Delhi and one late Shri Roshan Lal the sole proprietor of M/s Steel & Metal Stores was a tenant in the above said flat in respect of the area as shown in red colour in the site plan filed with the application. It is alleged that the tenancy of the above Shri Roshan Lal was duly terminated vide notice dt. 14.03.73 w.e.f. Expiry of 30.04.73 and he became a statutory tenant in the above said flat and after his death his

widow Smt. Prem Wati succeeded to the tenancy rights for her life, as she was financially dependent on late Shri Roshan Lal and she continued in possession of the suit property being the spouse of the deceased tenant. It was further alleged that the above Smt. Prem Wati had also died about 3-4 years back and the tenancy with regard to the above said premises stands extinguished with her death, as per the provisions of the Delhi Rent Control Act, 1958. It was also stated by the petitioner that the above premises/flat is now in occupation of the respondent, who is the son of the deceased Shri Roshan Lal, but he is an illegal and unauthorised occupant of the suit property because tenancy rights with regard to the said premises already stand and extinguished on the death of Smt. Prem Wati.

After the respondent was served with notice of the main application he had earlier filed one application U/O 7 Rule 11, CPC seeking rejection of the petition filed by the petitioner on the ground that since the petitioner had alleged him to be an unauthorised occupant of the suit property, the application U/S 19 of the Slum Act filed by the petitioner is liable to be rejected as this Authority has got no jurisdiction to decide the above application and to grant the permission U/S 19 of the Slum Act, unless the petitioner accepts the respondent as his tenant. The above application of the respondent was dismissed by this Authority vide order dt. 20.03.07 with liberty to the respondent to take an appropriate objection in his reply. But the respondent has not filed any reply to the main application and has instead moved this application U/S 151 CPC while submitting that he does not want to file any reply/WS to the main application U/S 19 of the Slum Act moved by the petitioner and he is not denying his financial

status. However, it was prayed by the respondent that if the petitioner accepts him to be his tenant then the main application U/S 19 of the petitioner be allowed, but if the petitioner alleges him to be an unauthorised occupant then the same be dismissed being not maintainable.

I have thoughtfully considered the submissions made by Shri M.L. Khattar, Ld. Cl. for the petitioner and Shri A.P. Aggarwal, Ld. Cl. for respondent and have also carefully perused the case file.

Though in the main petition/application the petitioner has used the word 'tenant' in the opening line of Para 4 of the application, but there is no doubt with regard to the fact that the petitioner is not accepting the respondent to be his tenant and is alleging him to be an unauthorised occupant of the suit property. Section 19 of the Slum Act requires the obtaining of permission of this Authority by any person who desires to institute 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. The above Section uses the word 'tenant' and not the word 'occupant' or 'occupier'. Though the word 'occupier' is defined U/S 2(f) of the said Act, but the word 'tenant' is not defined by the above said Act. However, it can certainly be said that the word 'occupier' is of wider meaning than the word 'tenant' because the word 'occupier, as defined in the Slum Act, even includes a licencee in occupation of any building or any person who is liable to pay the damages to the owner for the use and occupation of any land or building and even includes an owner himself in occupation of or otherwise using his land or building. A plain reading Section 19 of the above said Act shows that the legislature in its wisdom has not used the

word 'occupier' or 'occupation' in the said Section so as to give them the protection granted by the above said Section and has limited this protection only for the 'tenants'. Though this Authority is not competent enough to give any final findings on the relationship of landlord and tenant and has merely to see a prima facie relationship of landlord and tenant between the parties, but the petitioner himself has alleged in the petition that the respondent is not a tenant and is only an unauthorised occupant of the suit property. Therefore, in my view, the respondent is not entitled to any protection U/S 19 of the Slum Act and there is no requirement for the petitioner to obtain the permission U/S 19(I)(a) of the above said Act to initiate any suit or other proceedings for eviction of the respondent from the suit property. It was held in case Siri Kishan and Another Vs. Mahabir Singh & Others AIR 1972 DELHI 196 (V 59 C 48):-

"The Schemes of the Act even judging from its preamble, is to protect "tenants" in areas declared to be slum from eviction." The benefit of protection under Section 19(4) has been conferred only upon a "tenant" and not upon any "occupier" regardless of whether he is a tenant or not"

In view of the above, this application U/S 151 CPC filed by the respondent is disposed of with observations that there is no requirement for the petitioner to obtain the permission of this Authority to initiate eviction proceedings against him in respect of the above suit property/flat because the petitioner is alleging him to be an unauthorised occupant and not a tenant. With the result the main application/petition U/S 19 of the Slum Act filed by the petitioner seeking permission of this Authority to initiate eviction proceedings

against the respondent is also held to be not maintainable and is dismissed as such. File be consigned to the Record Room."

25. After this order was passed on 25th July, 2007, the present suit was filed on 30th November, 2007, by the Plaintiff, seeking eviction of the Defendant. In the initial decree, one of the conclusions of the Trial Court was that the slum authority having not given an approval, the suit was not maintainable.

26. On the issue of the Slums Act, the first judgement to be considered is Punna Ram (supra). The Full Bench of this Court in the said case, has considered Section 19 of the Slums Act and insofar as it relates to obtaining permission, the Full Bench has observed as under:

"7. Before we deal with the above contention, it would be but proper to notice the scheme of the Act. We have already read the Preamble. Chapter I deals with preliminary matters and has two sections. Section I deals with the title of the Act and the extent and commencement thereof Section 2 sets out terms which have been defined. Clause

(f) of Section 2 defines "Occupier". This provision reads as under:-

xxxxxx The term "tenant" has not been defined by the Act despite the fact that it is used in some of the provisions which we will notice later.

Xxxx

28. This brings us to the consideration of a few other aspects agitated at the Bar. Sub-section (3) of Section 19 of the Act postulates grant or refusal of the permission to institute any suit or proceeding for obtaining a decree or order for eviction of a tenant or where any decree or order is obtained in any suit or proceeding instituted

before the commencement of the Act for eviction of a tenant from any building or land in an area declared as a slum area. The question that arises for consideration is what is the meaning of the term "tenant". As noticed earlier, this term is not defined by the Act. Mr. Narula submits that tenant contemplated by Section 19 is a person in occupation or a person likely to be evicted, if permission is granted to institute eviction proceedings or execute an order of eviction. We do not agree. The protection contemplated is for a tenant as recognised by law. A mere occupier can not be equated to a tenant. An occupier may be a trespasser or a licensee or a tenant. The concept of welfare State can not extend to giving protection to trespasser or persons who have no right of occupation. Therefore, when the Legislature used the term "tenant" in Section 19 as well as in the Preamble of the Act it meant tenant-in-law."

27. A perusal of the above observations of the Full Bench clearly shows that the Court has held that the use of the word 'tenant' by the Legislature is deliberate and is meant to be a tenant-in-law and not any occupier, who could be a trespasser or a licensee. Thus, the protection is only for a tenant recognized in law and not to unauthorised occupants. The judgment of the Full Bench, has been subsequently considered in Giri Raj (supra) wherein the ld. Single Judge has concluded that the Full Bench clearly covers the issue and in the case of other unauthorised occupants, Section 19 would not be applicable. The relevant portion of the said judgment is set out below.

"19. In support of their first contention i.e., that permission under Section 19 of the Slum Areas Act 1956 has not been obtained by the respondents herein before instituting this action, the defendants/ appellants have placed reliance upon

a recent judgment of the Hon'ble Supreme Court in Laxmi Ram Pawar Vs. Sita Bai Balu Dhotre & Anr. AIR 2011 SC 450. The appellants are manifestly camouflaging the fact that the aforesaid judgment of the Hon'ble Supreme Court has been rendered by the Apex Court in the case of the Maharashtra Slum Areas (Improvement, Clearance & Redevelopment) Act of 1971, (for short, the Maharashtra Act), and not under the Slum Areas (Improvement & Clearance) Act, 1956, (for short, the Delhi Slums Act 1956 - which applies to Delhi). The relevant provisions (that accord protection to people) of the said Maharashtra Act are materially different from that of the Delhi Slums Act 1956. The Maharashtra Act, as is apparent, on a perusal of the aforesaid judgment of the Hon'ble Supreme Court, as also on the face of Section 22 of the Maharashtra Act (please see para 8 on page 452 of the report) extends protection even to an occupier of any building or land in a slum area in Maharashtra. This is not the law under our Act i.e. the Slums Act, 1956. The Delhi Slums Act, 1956 does not extend any protection, in any form, to a mere occupier (as is the case under the Maharashtra Act). The Delhi Slums Act 1956 extends protection under Section 19 of the said Act only to a tenant. (please see the preamble of the Act, as also Section 19 thereof). The legislature while enacting the Delhi Slum Act of 1956 did not embrace within the protective umbrella of Section 19 of this Act any trespasser or illegal/ unauthorized occupant of land/ building in a slum area. It accorded protection only to a tenant.

20. The answer is apparent on a bare reading of the relevant provisions themselves. Even otherwise, the court is of the view that the question sought to be urged is no more res integra. The

issue has already been raised and repeatedly settled by this Hon'ble Court. The cases direct in point on this issue are Punnu Ram and Others vs. Chiranji Lal Gupta and others; AIR 1982 Delhi 431 (Full Bench), Siri Kishan vs. Mahabir Singh; ILR (1975) 1 Delhi 575 (DB), and Devi Pershad Vs. Ghanshyam Das; 31 (1987) DLT 62."

28. The ld. Single Judge has considered apart from the Full Bench judgment in Punna Ram (supra), other judgments of this Court including the ld. Division Bench in Virender Singh (supra), ultimately taking the same view as Punna Ram (supra). Mr. Goswami's contention on behalf of the Defendant, that the decision in Virender Singh (Supra) would apply on all fours may not be correct. In fact, in this judgment, the Court has held that in case of persons, who may not have alternate premises to relocate themselves, the purpose of under Section 19 is to ensure that the tenant or an occupier, who is poor or unable to arrange alternative accommodation, is given sufficient protection under this provision. Such is not the position of the tenant in the present case. It is also relevant to note that in the ld. Division Bench's judgment, the previously rendered judgment of the Full Bench in Punna Ram (supra) is not cited.

29. On the basis of the above legal position, especially in view of the decision in Punna Ram (supra), it is concluded that the provisions of Section 19 of the Slums Act would be applicable only to tenants-in-law and not to occupiers generally. The heirs of the original tenant would thus not be entitled to protection under Section 19.

30. There is another dimension to the argument under Section 19 of the Slums Act. The objection under Section 19 is one that can be waived by the tenant if the same is either not pleaded or the tenant's conduct disentitles

him to the said defence. This is clear from the decision in Shri Chiraguddin (supra) wherein Ld. Single Judges have held:

"9. In my opinion, learned counsel for the respondents/landlords is justified in placing reliance upon the ratio of the judgment of the Supreme Court in the case of Martin and Harris Ltd. (supra) and which clearly holds that if the provision of a statute gives certain right to a tenant, such a right is available to a tenant and can be waived by him. In my opinion, the right given as per Section 19 of the Slum Act is a right available with the petitioner/tenant in his personal capacity, and once no such objection was taken before the Additional Rent Controller who decided the main case under Section 14(1)(a) of the Act, such a right has clearly been waived by the petitioner/tenant. The impugned judgment of the Rent Control Tribunal has effectively held the same vide para 13 of the same, and to which reasoning the ratio of the judgment of the Supreme Court in the case of Martin and Harris Ltd. (supra) is to be added.

10. I may note that if the argument which is urged on behalf of the petitioner with respect to non- maintainability of the petition under Section 14(1)(a) of the Act is accepted on the ground that there was no jurisdiction of the Additional Rent Controller to pass the judgment decreeing the petition under Section 14(1)(a) of the Act, the same would create a very peculiar position because it is perfectly possible that an eviction petition may be decreed right till the Supreme Court and thereafter in execution proceedings an objection would be taken with respect to the fact that the eviction petition itself was not maintainable in view of the fact that the premises are situated in a slum area and permission of the

slum authority was not taken under Section 19 of the Slum Act. To accept such an argument would mean grave harassment of the landlady and allowing a tenant to plead the rights which were waived by him i.e. the tenant will be allowed to plead non-existence of jurisdiction although such an issue is an issue of a right which can be waived, and was in fact waived by not raising the same. After many years of litigation in which the landlady is successful in obtaining an eviction order, to argue that the entire proceedings for eviction must fail cannot be accepted. I cannot subscribe to such a view in view of the categorical ratio of the judgment of the Supreme Court in the case of Martin and Harris Ltd. (supra). In para 14 of the judgment in the case of Martin and Harris Ltd. (supra) Supreme Court has applied the principle of estoppel in a case having facts such as the present because if objection under Section 19 of the Slum Act was taken in the written statement, the landlords would have simply withdrawn the petition at that stage and sought permission under Section 19 of the Slum Act. Thus, landlords having changed their position to their detriment by pursuing the eviction petition for a longer period of time (at least eight years), petitioner is estopped from raising the issue of maintainability only before the first appellate court."

31. This view is further reiterated in Tulsi Das (supra) wherein the Court observed:

"9. (i) The third and the last argument urged on behalf of the appellants/defendants was that the suit land was situated in a slum area and once the suit land is situated in a slum area then by virtue of Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereinafter referred to as

the 'Slum Act') the suit could not lie in the civil court unless permission was first taken of the competent authority under the Slum Act.

(ii) Even this argument urged on behalf of the appellants/defendants lacks substance because the first appellate court has rightly relied upon a judgment passed by this Court in the case of Shri Chiraguddin v. Smt. Urmila Rani & Ors. MANU/D E/2335/2014 : 213 (2014) DLT 699 and which holds that unless objection as to lack of permission required under Section 19 of the Slum Act is taken at the very first opportunity in the trial court, such objection has to be taken to be waived. This was so held by this Court because if the objection is taken at the first opportunity then the landlord does not prejudicially suffer the continuation of the legal proceedings for the entire period of the proceedings in the trial court if the objection was taken the suit would have been withdrawn at the initial stage itself for taking permission under Section 19 of the Slum Act. Consequently it has to be held that the bar of Section 19 of the Slum Act is waivable and was waived as the appellants/defendants did not take up this defence in the trial court.

xxx I cannot however agree with the argument urged on behalf of the appellants/defendants because no doubt evidence was led with respect to the property falling or not falling within the Slum Act before the first appellate court, but that evidence was led before the first appellate court and no such defence was taken or issue raised by the appellants/defendants in terms of Section 19 of the Slum Act before the trial court. The ratio of the judgment passed by this Court in the case of Chiraguddin (supra) therefore clearly applies and the first appellate court has rightly dealt with this

issue in paras 13 to 15 of its judgment..."

32. Both the above judgements are categorical on the position that the requirement of permission under Section 19, can be considered as waived off by the tenant, if the tenant does not raise any objection in prior proceedings, including in proceedings under the relevant rent control legislation.

33. In the facts of this case, the Defendant himself took a position before the slum authority that the Plaintiff having claimed that the Defendant is an unauthorised occupant, the application filed before the slum authority, seeking permission, was not maintainable. This order was passed way back on 25th July, 2007 and almost 14 years have passed since the said date. During this entire period, the Defendant had, till the orders passed by this Court dated 8th October, 2020, enjoyed the suit property despite the decree having been passed by the Appellate Court against him. The Defendant having enjoyed benefit of the stand taken before the slum authority and having moved a specific application before the slum authority, cannot urge the contrary today. In this appeal the Defendant does not challenge the position that he is an unauthorised occupant after the demise of the original tenant and his wife. Thus, the Defendant being an unauthorised occupant, in view of the Full Bench judgment of this Court in Punna Ram (Supra) followed by ld. Single Judge judgment in Giri Raj (supra), the Court is persuaded to hold that the permission under Section 19 of the Slums Act is not required.

34. Moreover, the view in Shri Chiraguddin (supra) and Tulsi Das (supra) would be squarely applicable as in those cases, the tenant had failed to take an objection in respect of Section 19, in the pleadings filed in earlier

proceedings. The present case stands on a higher pedestal as there has been a conscious act by the tenant in filing an application and then getting the decision against himself to the effect that he is an unauthorised occupant/occupier to whom Section 19 would not be applicable. Under these circumstances, the question of law in relation to Section 19 would not arise in the present appeal, as the same is well settled in the judgments set out above.

35. Consideration of Cross-Objections by the Appellate Court: Insofar as the cross objections are concerned, a perusal of the cross objections reveals that the various pleas taken in the cross objections are:

1. The nature of the premises, which has been let out: This is considered by the Appellate Court in paragraphs 9 to 12.

2. Notice of termination of the tenancy: This issue is considered in paragraph 13.

3. Whether the tenancy was in respect of individual Mr. Roshan Lal or the proprietary firm: This is considered in paragraph 14.

4. Establishment of Landlord-Tenant relationship: This issue is considered in paragraph 15.

5. Issue as to whether the heirs were financially dependent or not:

This issue is considered in paragraph 16 to 18.

6. Issue relating to permission under Section 19 of the Slums Act:

This issue has been considered in paragraph 19 to 21.

36. On all these issues raised in cross objections, the Appellate Court has given specific findings as set out above. Thus, the mere fact that in the end the Appellate Court fails to record a sentence that both the appeal and the cross objections are disposed of, cannot lead to a conclusion that the cross objections are not considered by the Court. The cross objections have been fully

considered and dealt with by the Appellate Court.

37. Interest on mesne profit: Insofar as the interest on mesne profits is concerned, the Plaintiff has agreed to waive the same. Accordingly in view of the consent of the Plaintiff, the interest on mesne profits stands waived off and the Appellate Court decree stands modified to that extent.

38. Thus, no substantial question of law arises in the present appeal. Counsels for the parties submit that before the Executing Court a statement has already been made that the Defendant would vacate the premises and remove his goods on or before 30th November, 2021. Mr. Mahajan, ld. counsel for the Plaintiff, submits that the date has not been fixed by the Executing Court.

39. In view of the categorical stand taken on behalf of the Defendant before this Court today, it is directed that the Defendant shall handover vacant and peaceful possession of the suit property to the Plaintiff on or before 30th November, 2021, failing which the Executing Court shall proceed in accordance with law.

40. All statutory charges including the electricity bills, water bills, etc. till 30th November, 2021 shall be duly cleared and proof thereof shall be given to the Plaintiff at the time of vacating the suit property.

41. The appeal is disposed off in these terms. Defendant shall be bound by the statement made and recorded above. All remedies of the Plaintiff, in case of non-compliance by the Defendant, are left open.

PRATHIBA M. SINGH JUDGE SEPTEMBER 9, 2021 MR/DK/Aman/MS (corrected & released on 16th September, 2021)