A.R. Ramanatha Iyer vs Kondiah Naidu

The Civil Revision Petition Is filed against the order dated 5-3-1976 in M. P. No - 224O of 1975 by IV Judge, Court of Causes, Madras. The

petitioner, respondent in the lower court, is the land owner, the respondent, who is the petitioner before the lower court, is the tenant The

Petitioner filed under, Section 41 of the Presidency Small Cause Courts Act, ejectment suit No. 111 of 1968, on the file of the Court of Small

Causes, Madras. The respondent filed M. P. NO. 3165 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 in occupation

of the respondent at As. 1380, and directed him to pay the amount in thirty monthly instalments commencing from February 1972. The respondent

paid the entire sum of Rupees 2731. In the meanwhile, the entire area of which the suit land forms part has been declared to be slum area u/s 3 of

the Tamil Nadu Slum Areas (Improvement and Clearance) AA 1971, (hereinafter to be referred to as (Act 11 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. 2731 deposited by him to the credit of the ejectment

suit. On this application the court held that the notification under Tamil Nadu Act 11 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 so 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 finding the Court below ordered refund of the amount to the respondent. Aggrieved against the order passed by the lower court

the petitioner has coma up in revision before this court.

It is contended for the petitioner that since the lands have not been acquired by the Government u/s 11 of Act 11 of 1911, 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 pre amble, 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, for holding that the petitioner is not competent to convey the

land in favour of the respondent and ordering 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 order ed conveyance of the land by the petitioner to the respondent and the

respondent has not been put in possession of the land, it is not 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 with draw the application filed under See. 9 of the City Tenants Protection,

Act and claim refund of the amount deposited in court.

When a notification to issued u/s 11 of Act 11 of 1971 declaring any slum area to be a slum clearance area the owner of the land may redevelop

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

authority (vide Sec. 14 of the Act). Sec, IV 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

land owner 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 18. One thing

appears to be clear and that 14 there is no prohibition for transfer of the land or building by the owner even after the area has been declared to be

a slum, clearance area.

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

the Presidency Small Cause Courts Act, the tenant may Me an application for order of court directing the landlord to sell the land for a price to be

fixed by the court Under Sec. 9 (1) (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 under Sec. 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 I C. P. C. gives an unqualified right to a

plaintiff to withdraw from 0 suit and there is no Provision in the C. P. C. which 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 Be-off has been claimed or a

counter-claim has been made. Since the petition u/s 9 is filed by the tenant in an ejectment suit filed against him Order 23, Rule I will apply to the

petition u/s 9 (1) of the Madras City Tenants Protection Act. An 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 under Sec. 9.

The Madras City Tenants Protection Act is a beneficial provision intended for the protection of the tenant. It In 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 is whether the respondent is entitled to the refund of the amount lying in court deposit. Sec. 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 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 ref use refund to the tenant when he has complied with the orders of the court and

paid the amount in full, so long 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 applies 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 instalments 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 estopped cannot

be applied where the respondent has merely acted under a statutory provision. The order of the lower court is confirmed and the civil revision

petition stands dismissed. No costs.

Petition dismissed.