A.R. Ramanatha Iyer vs Kondiah Naidu

P. Venugopal, J.—The civil revision petition is filed against the order dated 5th March, 1976 in M.P. No. 2240 of 1978 by IV Judge, Court

of Small Causes, Madras.

The petitioner, respondent in the lower Court, is the landowner. The respondent, who is the petitioner before the lower Court, is the tenant. The

petitioner filed u/s 41 of the Presidency Small Causes Courts Act, Ejectment Suit No. 111 of 1968 on the file of the Court of Small Causes,

Madras. The respondent filed M.P. No. 2165 of 1968 u/s 9 of the Madras City Tenants (Protection] Act claiming protection, under the said Act

and offering to purchase the land in his occupation at a price to be fixed by the Court. The Court fixed the value of the land inoccupation of the

respondent at Rs. 1,380 and directed him to pay the amount in thirty monthly instalments commencing from February, 1972. The respondent paid

the entire sum of Rs. 2,731. In the meanwhile, the entire area of which the suit land forms part has been declared to be slum area u/s 2 of the Tamil

Nadu Slum Areas (Improvement and Clearance) Act, 1971 (hereinafter to be referred to as Act XI of 1971). The petitioner was also served with

a notice u/s 11 of the said Act. Thereafter, the respondent filed an application for withdrawal of his application filed u/s 9 of the City Tenants

Protection Act and also sought permission of the Court to withdraw the sum of Rs. 2,711 deposited by him to the credit of the ejectment suit. On

this application, the Court held that the notification under Tamil Nadu Act XI of 1971 puts an end to the jural relationship of the landlord, and

tenant and it is neither possible nor competent for the petitioner to sell the land to the respondent and as long as the sale deed has not been

executed by the petitioner and the title has not passed to the respondent, it is not open to the petitioner to lay any claim to the amount in Court

deposit. On these findings, the Court below ordered refund of the amount, to the respondent. Aggrieved against the order passed by the lower

Court, the petitioner has come op in revision before this Court.

It is contended for the petitioner that since the lands have not been acquired by the Government u/s 17 of Act XI of 1971, the petitioner''s right,

title and interest in the property are merely restricted and regulated u/s 14 of the said Act and the relationship of the landlord and tenant does not

cease to exist by virtue of the notification issued u/s 11. It is further contended that since the object of the Act, as seen from the preamble, is

merely to provide for the improvement and clearance of slums in the State of Tamil Nadu and not to deprive the petitioner of his right, title and

interest in the area declared to be a slum clearance area u/s 11, there is absolutely no basis for holding that the petitioner is not competent to

convey the land in favour of the respondent and order refund of the amount to the respondent. It is also contended that the respondent having

offered to purchase the property and deposited the amount in pursuance of the Court order, it is not open to him to withdraw the application and

claim refund of the amount.

It is contended for the respondent that so long as the Court has not ordered conveyance of the land by the petitioner to the respondent and the

respondent has not been put into possession of the land, it is open to the respondent to withdraw the application filed u/s 9 of the City Tenants

Protection Act and claim refund of the amount.

The short question for consideration is whether the respondent can withdraw the application filed u/s 9 of the City Tenants Protection Act and

claim refund of the amount deposited in Court.

When a notification is issued u/s 11 of Act XI of 1971 declaring any slum area to be a slum clearance area, the owner of the land may re-

develop the land in accordance with the plans approved by the prescribed authority subject to such restrictions and conditions imposed by the

prescribed authority (vide Section 14 of the Act). Section 17 of the Act confers on the Government the power to acquire a slum area. Section 16

of the Act provides for the framing of Rules to regulate the transfer, to the persons who immediately before the declaration of that area to be a slum

clearance area, were in occupation of the lands and buildings in that area. It can thus be seen that as a result of the notification issued u/s 11 the

rights of the landowner are merely restricted and regulated and his right of transfer to persons before it was declared to be a slum clearance area is

governed by the Rules framed u/s 18 of the Act. Both sides are unable to throw any light whether Rules regulating transfer have been framed u/s

One thing appears to be clear and that is, there is no prohibition for transfer of the land or building by the owner even after the area has been

declared as a slum clearance area.

Section 9(1)(a)(i) of the Madras City Tenants (Protection) Act, provides that when the landlord filed a suit for ejectment of the tenant u/s 41 of

the Presidency Small Causes Courts Act, the tenant may file an application for order of Court directing the landlord to sell the land for a price to

be fixed by the Court. u/s 9(i)(b) the Court shall decide the minimum extent of the land which may be necessary for the convenient enjoyment of

the tenant and fix the price. The Court should then order the tenant to deposit the amount in Court in one or more instalments within the prescribed

time. On payment of the amount by the tenant, the Court u/s 9(3) shall pass an order directing the conveyance by the landlord to the tenant of the

extent of the land for which the price was fixed in the present case, the stage contemplated, u/s 9(3) has not been reached. The Court has not

ordered conveyance of the land from the landlord and the ejectment proceedings are still pending. There is no bar for the respondent to withdraw

his application filed u/s 9 of the City Tenants (Protection) Act offering to purchase the land for a price fixed by the Court. The Supreme Court in

Hulas Rai Baij Nath Vs. Firm K.B. Bass and Co., , has held that Order 23, Rule 1, CPC requires the Court to refuse permission to withdraw the

suit in such circumstances and to compel the plaintiff to proceed with the case. Different considerations will arise only where set-off has been

claimed or a counterclaim has been made. Since the petition u/s 9 is filed by the tenant in an ejectment suit filed against him, Order 23, Rule 1 will

apply to the petition u/s 9(1) of the Madras City Tenants (Protection) Act. As there is no possibility of any set-off or counter-claim in the

proceedings initiated u/s 9 of the Madras City Tenants (Protection) Act it follows that it is open to the tenant to withdraw the petition filed by him

u/s 9.

The Madras City Tenants (Protection) Act, is a beneficial provision intended for the protection of the tenant. It is always open to the tenant to

waive the benefit conferred under the Act. In that view, the tenant is entitled to withdraw the petition filed u/s 9 of the Madras City Tenants

(Protection) Act, especially when the Court has not directed the conveyance of the land by the landlord to the tenant.

The next question whether the respondent is entitled to the refund of the amount lying in Court deposit. Section 9(2) of the Madras City Tenants

(Protection) Act provides that in default of payment by the tenant of any instalments fixed by the Court u/s 9(1) for the purchase of the land, the

Court shall dismiss the application filed by the tenant under Sub-section (1) and order repayment of the amount to the tenant. When the section

provides for refund of the amount paid by the tenant even in a case where the tenant defaults in the payment of instalments fixed by the Court, there

is no reason why repayment should be refused when the tenant has complied with the orders of Court and has paid all the instalments. If refund

could be ordered when there is default, there is no rhyme or reason to refuse refund to the tenant when he has complied with the orders of the

Court and paid the amount in full. So Song as there is no statutory bar for withdrawal of the application filed by the tenant u/s 9, and so long as the

Court has not ordered conveyance of the land by the landlord to the tenant, there is no prohibition for the tenant to withdraw the application and

claim refund of the amount deposited in Court. Learned Counsel for the petitioner contended that Section 9(2) providing for refund of the amount

applied only when there is a default and not when there is compliance with the Court''s order regarding payment. It is quite incongruous and

illogical to suggest that the tenant is entitled to refund when he commits default in payment of instalment and he is not entitled to refund when he has

complied with Court''s order and paid the amount in full. The contention of the learned Counsel fails and is accordingly rejected.

Learned Counsel for the petitioner next contended that the respondent having filed an application offering to purchase the property and having

deposited the amount in Court, he is estopped from withdrawing his application filed u/s 9. The acceptance of the offer made by the respondent to

purchase the land and the amount of price to be paid for the land are matters which are regulated by statute and the principle of estoppel cannot be

applied where the respondent has merely acted under statutory provisions. The order of the lower Court is confirmed and the civil revision petition

stands dismissed. No costs.