Delhi District Court
Shri Tulsi Dass Ahuja & Another vs Shri Chhattar Singh Through His Lrs & ... on 6 April, 2015
IN THE COURT OF SH. RAJNISH BHATNAGAR; ADJ (CENTRAL)-11,DELHI
RCA No. : 26/2013
Shri Tulsi Dass Ahuja & another
.....Appellants
vs.
Shri Chhattar Singh through his LRs & another
....Respondents.
ORDER
1. By this order, I shall dispose of an application filed by the appellants U/s 19 of the Slum Area Improvement & Clearance Act 1956 read with section 151 CPC.
2. Brief facts are that the respondent had filed a suit for recovery of possession against the appellants on the ground that the suit property measuring 250 Sq. yards was let out to Dwarka Dass Ahuja at the monthly rent of Rs. 25/- alleging that the said tenancy was terminated vide notice dated 20/04/1991. After filing of the appeal the appellant came to know that the suit property is situated in Slum Area so accordingly an RTI application was filed. The following information was supplied by the office of Deputy Director Delhi Urban Shelter Improvement Board which is as follows :
"As per records available in the section with regard to notification and as per verification at site property bearing No. 1A, New Rohtak Road, Village Sadhora, Khurd, Sarai Rohilla, Double Phatak, New Delhi-110005 ward XVI falls with Slum Notified Area under section 3 of Slum Areas (Improvement and Clearance Act 1956) vide RCA No. 26/13 Page no. 1 / 19 Gazette Notification No. SR 01252 dated 10/04/1957 (certificate/RTI is enclosed herewith).
3. The respondent intentionally concealing this fact filed the suit without obtaining the necessary permission from the competent authority. It is averred that the said act came into force on 18-02-1957 and is still in force, and since no permission from competent authority has been obtained, the decree is liable to be set aside.
4. The application has been contested by the respondents by filing the reply. In reply they have taken preliminary objection contending that the original suit was instituted by plaintiff's/predecessor of the respondent in the year 1991 and was decided after a long trial on 16-04-2013. During this period of 22 years no objection with regard to the permission under Slum Act was ever raised by the appellants and they are now estopped from taking such plea at the belated stage; that no permission U/s 19 of the Slum Act was required in the facts and circumstances of this case as provisions of DRC Act are not attracted.
5. On merits, in reply to para 3 to 5 of the application it is stated that the objection about the permission from Slum Authority was not raised during the long trial; that the information under RTI Act cannot be considered at this stage. In reply to para 6 to 7 it is stated that the suit is in respect of open part of land and no permission was required for filing the suit against the appellants. It is prayed that the application be dismissed.
6. The Ld predecessor of this court heard part arguments on the application under disposal. The Ld. predecessor exercising power U/o 41 Rule 7 CPC directed the concerned authority i.e Delhi Urban Shelter Improvement Board to produce the relevant record to ascertain the fact as to whether the property falls in Slum Area or not and as to whether the information furnished under RTI Act by the concerned authority is correct.
RCA No. 26/13 Page no. 2 / 197. In pursuance to this order, dated 3/7/2014, Sh. Manohar Lal Survey Officer, Delhi Urban Shelter Improvement Board was examined as AW-1. He proved on record the covering letter as Ex. AW 1/1 alongwith RTI report Ex. AW 1/ 2 which included the latest report under Slum notified areas U/s 3 of the Slum Act. He also proved on record gazette notification SRO No. 1252 dated 10-4-1997 and proved its copy as Ex. AW 1/3. He further deposed in his examination in chief that the suit property falls in Slum Notified area ward 16 which is reflected at Mark A in Ex. AW 1/3.
8. He was cross examined by the counsel for the respondents. He denied t hat the report Ex. AW ½ is incorrect. He further stated in his cross examination that the property No. 1 A, New Rohtak Road Village Sadora Khurd, Sarai Rohilla, Double Phatak is not specifically mentioned at mark A in Ex. AW 1/3.
9. I have heard the counsel for the parties and perused the records of the case. The appellant has also filed written arguments which have been perused.
10. The counsel for the appellant has argued on the lines of his application. It is further urged that at no stage the appellants have waived or given up their right to raise the objection U/s 19 of the Slum Act. It is further urged that the legal objection can be taken at any time. It is further urged that the appellants had taken t he objection of maintainability of the proceedings before the trial Court. It is further urged that the judgment titled as Chiragudin Vs. Urmila Rani relied upon by the respondents is not applicable to the facts of the present case. The appellant has relied upon Diwan and Sone Investment Pvt. Ltd. Vs. NDMC, 66 (1997) DLT 278.
11. On the contrary it has been urged by the counsel for the respondent that the suit was filed in 1991 and the appellant has preferred the present appeal in the year 2013 and it has been almost 22 years RCA No. 26/13 Page no. 3 / 19 and no objection was taken by the appellants and the objection regarding the bar under Slums Act has been taken for the first time by way of this application. The respondent has relied upon Chiraguddin Vs. Urmila Rani 213 (2014) DLT 699. It is further urged by the counsel for the respondent that the only objection raised by the appellant regarding the maintainability of the suit was that the suit of the plaintiff/respondent herein is barred U/s 50 of the DRC Act.
12. The respondents have filed a suit for recovery of possession/damages, rent, permanent injunction and mandatory injunction on 11-11-1991. The suit of the respondent was decreed on 16-04-2013 which shows that both the parties litigated for about 22 years. I have seen the impugned judgment. No objection that the suit property falls in the Slum Area was ever raised by the appellants and its maintainability was not challenged on this account rather the appellants have challenged the maintainability of the suit of the respondent U/s 50 of the DRC Act.
13. It is for the first time in the appeal, the appellants have moved the present application U/s 19 of the Slum Act for setting aside of the decree. The respondents have filed RTI application with Delhi Urban Shelter Improvement Board and in reply it was reported that the suit property i.e property bearing No. 1-A New Rohtak Road, Village Sadhora Khurd , Sarai Rohilla, Double Phatak, New Delhi-5 Ward XVI falls within Slum Notified area U/s 3 of the Slum Areas (Improvement and Clearance Act 1956). The reply is Ex. AW 1/ 2. So according to the gazette notification Ex. AW 1/3 the suit property falls within the Slum Area.
14. The appellant has mentioned in the application that after filing of the appeal he had made hectic efforts and came to know that the suit property is situated in slum but it has not been mentioned by the appellant as to what efforts he made and as to how he came to know that the suit property is situated in slum which he could not know for the last 22 RCA No. 26/13 Page no. 4 / 19 years, the period for which the trial continued.
15. The main argument of the appellant is that the objection now taken by him with regard to the bar of Section 19 is a legal plea which can be raised at any stage. IN support of this contention the appellant has relied upon Diwan and Sone Investment Pvt. Ltd. Vs. NDMC, 66 (1997) DLT 278 to contend that a legal plea can be raised at any stage.
16. The counsel for the respondent has relied upon Chiraguddin Vs. Urmila Rani 213 (2014) DLT 699. In para No. 7 to 11 of this judgment it has been observed as under : -
7. Instead of only referring to head note B, I would seek to reproduce paras 11 to 14 of the judgment of the Supreme Court in the case of Martin and Harris Ltd. (supra) and which paras read as under:-
"11. So far as this point is concerned it must be held on the clear language of the first proviso to Section 21(1) of the Act that application for possession Under Section 21(1)(a) had to be filed by the landlord concerned not earlier than expiry of six months from the date of issuance of the notice by the landlord. On the facts of the present case it cannot be disputed that when the notice was issued on 20.09.1985 the application for possession could not have been filed by the respondent invoking the grounds mentioned in Clause
(a) of Section 21(1) of the Act, at least till 20.03.1986, while the RCA No. 26/13 Page no. 5 / 19 application was filed in January 1986. To that extent it can be said that the application was premature. The provision in this connection has to be treated to be mandatory.
12. However the further question survives for consideration, namely, whether the beneficial provision enacted by the Legislature in this connection for the protection of the tenant could be and in fact was waived by the tenant. So far as this question is concerned on the facts of the present case the answer must be in the affirmative. As we have noted earlier after the suit was filed the appellant filed its written statement on 17.09.1986.
In the said written statement the appellant, amongst others, did take up the contention that the application as filed by the respondent-landlord Under Section 21(1)(a) was not maintainable and was premature as six months' period had not expired since the service of notice dated 20.09.1985 when the suit was filed. But curiously enough thereafter the said contention raised by the appellant in written statement was given a go-by for reasons best RCA No. 26/13 Page no. 6 / 19 known to the appellant. It is easy to visualise that if at that stage the appellant had pressed for rejection of the application on the ground of Section 21(1)(a) as not showing completed cause of action due to non- expiry of six months from the date of service of notice invoking Order VII Rule 11(a) and (d), CPC, alleging that the plaint did not disclose a cause of action or it appeared to be barred by law, respondent-plaintiff could have withdrawn the suit on that ground under Order XXIII Rule 1 Sub-rule (3), CPC as the suit based on grounds Under Section 21(1)(a) of the Act would have been shown to have suffered from a formal defect and he would have been entitled to claim liberty to file a fresh suit on the same cause of action after the expiry of six months' period from the date of service of notice. That opportunity was lost to the respondent-landlord as the appellant did not pursue this contention any further. On the contrary appellant joined issues on merits by seeking permission to cross-examine the plaintiff on merits of the case on grounds as pleaded Under Section 21(1)(a) of the Act. When the decree was RCA No. 26/13 Page no. 7 / 19 passed against the appellant, even while challenging the said decree in appeal no such ground was taken in the Memo of Appeal, nor was it argued before the First Appellate Court. Under these circumstances, the High Court rightly held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned senior counsel, Shri Rao, for the appellant invited our attention to a decision of this Court in the case of Badri Prasad and Others v. Seth Nagarmal (1959) Supp (1) SCR 769: (AIR 1959 SC 559). In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 Sub-section (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during arguments in appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in RCA No. 26/13 Page no. 8 / 19 the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmal Nargoremuil v. Triton Insurance Company Ltd., (1925) LR 52 Ind App 126: (AIR 1925 PC 83), extracted with approval the observations of Lord Sumner at page 128 of the Report of the Privy Council judgment to the following effect :
"The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim.
No court can enforce
as valid that which
competent enactments
have declared shall not
be valid, nor is
obedience to such an
enactment a thing from
which a court can be
dispensed by the
consent of the parties,
or by a failure to plead
or to argue the point at
the outset: Nixon v.
Albion Marine
Insurance Co. [1867]
L.R. 2 Ex. 338. The
enactment is
RCA No. 26/13 Page no. 9 / 19
prohibitory. It is not
confined to affording a
party a protection, of
which he may avail
himself or not as he
pleases."
The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a Court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the Statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent-plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months' period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not RCA No. 26/13 Page no. 10 / 19 pressed for consideration. Result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits.
13. It is not possible to agree with the contention of the learned senior counsel for the appellant that the provision containing the proviso to Section 21(1) of the Act was for public benefit and could not be waived. It is, of course, true that it is enacted to cover a class of tenants who are sitting tenants and whose premises are subsequently purchased by landlords who seek to evict the sitting tenants on the ground of bona fide requirement as envisaged by Section 21(1)(a) of the Act, still the protection available to such tenants as found in the proviso would give the tenants concerned a locus penitential to avail of it or not. It is easy to visualise that proceedings Under Section 21(1)(a) of the Act would be between the landlord on the one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the prescribed authority. The ground raised by the landlord Under Section RCA No. 26/13 Page no. 11 / 19 21(1)(a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. Six months breathing time is given to the tenant after service of notice to enable him to put his house in order and to get the matter settled amicably or to get alternative accommodation if the tenant realises that the landlord has a good case. This type of protection to the tenant would naturally be personal to him and could be waived. In this connection we may profitably refer to a decision of this Court in the case of Krishan Lal v. State of J&K., (1994) 4 SCC 422, wherein Hansaria, J., speaking for a Bench of two learned Judges has made the pertinent observations concerning the question of waiver of a mandatory provision providing for issuance of notice to the parties sought to be proceeded against by the person giving the notice, in paragraph 16 and 17 of the Report as under :
"As to when violation of a mandatory provision makes an order a nullity has been the subject-matter of various decisions of this Court as well as of courts beyond the seven seas. This apart, there are views of reputed text writers. Let us start from our own one time Highest Court, which used to be Privy Council. This question came up for examination by that body in Vellayan Chettiar RCA No. 26/13 Page no. 12 / 19 v. Government of the province of Madras AIR (1947) PC 197 in which while accepting that Section 80 of the CPC is mandatory, which was the view taken in Bhagchand Dagadusa v. Secretary of State for India in Council, 54 Ind. App 338: (AIR 1927 PC 176) it was held that even if a notice Under Section 80 be defective, the same would not per se render the suit requiring issuance of such a notice as a precondition for instituting the same as bad in the eye of law, as such a defect can be waived. This view was taken by pointing out that the protection provided by the section 80 is a protection given to the person concerned and if in a particular case that person does not require the protection he can lawfully waive his right. A distinction was made in this regard where the benefit conferred was to serve "an important purpose", in which case there would not be waiver (see paragraph 14).
This point had come up for examination by this Court in Dhirendra Nath Gorai v.
Shudhir Chandra Ghosh, AIR 1964 SC 1300: (1964) 6 SCR 1001 and a question was posed in RCA No. 26/13 Page no. 13 / 19 paragraph 7 whether an act done in breach of a mandatory provision is per force a nullity. This Court referred to what was stated in this regard by Mookherjee, J. in Ashutosh Sikdar v. Behari Lal Kirtania, ILR 35 Cal. 61 at page 72 and some other decisions of the Calcutta High Court along with one of the patna High Court and it was held that if a judgment-debtor, despite having received notice of proclamation of sale, did not object to the non- compliance of sale, did not object to the non-compliance of the required provision, he must be deemed to have waived his right conferred by that provision. It was observed that a mandatory provision can be waived if the same be aimed to safeguard the interest of an individual and has not been conceived in the public interest."
Consequently it must be held that the provision for six months' notice before initiation of proceedings Under Section 21(1) of the Act, though is mandatory and confers protection to the tenant concerned, it can be waived by him. On the facts of the present case there is no escape from the conclusion that the appellant, for the reasons best known to it, consciously and being alive to the clear RCA No. 26/13 Page no. 14 / 19 factual situation that the suit was filed on that ground prior to the expiry of six months' notice, did not think it fit to pursue that point any further and on the contrary joined issues on merits expecting favourable decision in the suit and having lost therein and got an adverse decision did not think it fit even to challenge the decision on the ground of maintainability of the suit while filing an appeal and argued the appeal only on merits and only as an afterthought at the stage of writ petition in the High court such a contention was sought to be taken up for the first time for consideration. On the facts of the present case, therefore, it must be held that the appellant had waived that contention about the suit' being premature having been filed before the expiry of six months from the date of the suit notice.
14. Apart from waiver the appellant was estopped from taking up such a contention as the respondent, on account of the aforesaid contention of the appellant, had irretrievably changed his position to his detriment and lost an opportunity of seeking leave of the Court to withdraw the suit with liberty to file a fresh suit as seen earlier. The second point for consideration is, therefore, answered in the negative, in favour of the respondent-landlord and against the appellant." (emphasis is mine)
8. I may note that the judgment of the learned Single Judge of this Court in the case of Albein Plywood Ltd. & Anr. (supra) is of the year 1993 and the judgment of the Supreme Court in the case of Martin and Harris Ltd.
RCA No. 26/13 Page no. 15 / 19(supra) is dated 11.12.1997 (reported in the year 1998) and consequently the learned Single Judge of this Court while deciding the case of Albein Plywood Ltd. & Anr. (supra) did not have the benefit of the ratio of the judgment of the Supreme Court in the case of Martin and Harris Ltd. (supra).
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 RCA No. 26/13 Page no. 16 / 19 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.
11. It is an extremely important aspect to note that 'slum area' is now only a mere nomenclature because really there are no slums and there is no slum area except that an area in the old Delhi, popularly known as walled city of Delhi, has been categorized as a 'slum area' under the Slum Act although in fact and reality the entire walled city RCA No. 26/13 Page no. 17 / 19 of Delhi/old Delhi is a totally built up area and therein exist some of the most valuable immovable properties; both commercial and residential; in Delhi. Actually Slum Act was passed in the year 1956 as per the situation then prevailing but today in the year 2014 really there are no slums but only huge costly buildings, both commercial and residential, though technically they continue to be labeled as a 'slum area'.
17. The case of the respondents is totally covered by the judgment Chiraguddin "supra" relied upon by the respondents in which the facts are almost similar to the facts of the respondents wherein it has been observed by the Hon'ble High Court that once no objection was taken U/s 19 of the Slum Act by the tenant before ARC such right clearly waived by the tenant.
18. In this case the parties have litigated for more than 20 years but no such objection was taken by the appellants for the reasons best known to them. The only objection as already discussed hereinabove was taken by the appellants regarding the bar of Section 50 of the DRC Act. Had the appellants raised the objection regarding the non maintainability of the suit of the respondent before the Ld trial court being barred U/s 19 of the Slum Act, the respondent/plaintiff would have withdrawn the case and sought permission from the competent authority and then file suit for eviction. The respondents have changed his position to his detriment by pursuing the eviction petition for 22 years as held in Chiraguddin "supra".
19. In the judgments of the superior courts mentioned hereinabove it has been observed that once the tenant has not taken the objection U/s 19 of the Slum Act then the petitioner is estopped from raising the issue of maintainability only before the appellant court.
20. This is what has happened in the present case, after 22 years of the litigation the appellant is taking this objection. So I have no hesitation in holding that at this stage the appellant is estopped from raising the RCA No. 26/13 Page no. 18 / 19 issue of maintainability on this ground. The Hon'ble High Court of Delhi in the judgment Chiraguddin "supra" has further gone on to hold that "Slum Area" is now only a mere nomenclature because really there are no slums and the Slum Act was passed in the year 1956 as per the situation then prevailing but today in the year 2014 there are no slums though technically they continued to be labeled as slum area. So in these circumstances, the application lacks merits and the same is, therefore, dismissed. Now to come up for disposal of the appeal on 28-05-2015.
Announced in the open court (RAJNISH BHATNAGAR) On 06.04.2015 Additional District Judge Delhi RCA No. 26/13 Page no. 19 / 19 RCA No. 26/13 Page no. 20 / 19