The main legal point established in the judgment is that a right created by a provision for the benefit of a tenant can be waived by the tenant.

Valmiki J. Mehta, J.

1. This petition under Article 227 of the Constitution of India is filed against the impugned judgment of the Rent Control Tribunal dated 6.3.2012 which has dismissed the first appeal filed by the petitioner/appellant against the order of the trial court/Additional Rent Controller dated 21.5.2008 by which the trial court directed eviction of the petitioner/tenant in a petition filed under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) pertaining to non-payment of rent.

2. The issue in the present case is that whether a right created under Section 19 of the Slum Area (Improvement and Clearance) Act, 1956 (hereinafter referred to as ‘the Slum Act’) can be waived and is deemed to be waived by the petitioner/tenant in the facts of the present case.

3. The facts of the case are that the respondent nos.1 to 5/landlords filed an eviction petition under Section 14(1)(a) of the Act, on the ground of non-payment of rent. This eviction petition was decreed by the first court/Additional Rent Controller by the judgment dated 12.3.2007. Since in law after decreeing a petition, it has to be examined whether petitioner/tenant should be given benefit of the first default as per Section 14(2) of the Act provided that the tenant has complied with the order of deposit under Section 15(1) of the Act, proceedings consequent to the judgment dated 12.3.2007 were taken up and it was found that the petitioner/tenant had defaulted in payment of rent and consequently by the order dated 21.5.2008, benefit of Section 14(2) of the Act was denied to the petitioner/tenant and the petitioner/tenant was hence directed to be evicted from the suit/tenanted premises which is one shop in the property bearing no.1761, Main Road, Patuadi House, Darya Ganj, New Delhi. Petitioner/tenant challenged the judgment dated 12.3.2007 and the order of eviction dated 21.5.2008 before the Rent Control Tribunal but this appeal was dismissed by the Rent Control Tribunal vide the impugned judgment dated 6.3.2012.

4. The issue with respect to the premises being in a slum area and therefore whether the eviction order could not be passed against the petitioner/tenant as no prior permission was taken under Section 19 of the Slum Act is dealt with and decided vide para 13 of the impugned judgment dated 6.3.2012, and which para 13 reads as under:-

“13. The other ground of premises being in slum is conspicuously absent in written statement. It was not for the landlord to show the negative that the premises were not situated in slums. Rather it was for the tenant to show the positive that the premises were situated in slum. He did not lead any evidence to establish the same. It is not that the entire old Delhi is in slum.”

5(i) Learned counsel for the petitioner/tenant has argued before this Court by placing reliance upon the judgment of a learned Single Judge of this Court in the case of Albein Plywood Ltd. & Anr. Vs. Janak Kapur & Ors. 50 (1993) DLT 228 that once the permission under Section 19 of the Slum Act is not taken, proceedings for eviction of the tenant under Section 14 of the Act are not-maintainable and wholly barred. The relevant paras of the judgment which are relied upon are paras 3, 4, 6 to 9, 11 and 12 and which read as under:-

“3. Counsel for the appellant has raised a question of jurisdiction of the Rent Controller in entertaining the eviction petition for want of permission under Section 19 of the Slum Areas (Improvement & Clearance) Act. 1956. He has produced on record a notification dated April 20, 1957 SRO 1252 issued under Section 3 of the said Act showing that the property in question namely 2155 Desh Bandhu Gupta Road known as 8/4 Desh Bandhu Gupta Road, New Delhi is located in the slum area to which the provisions of the said Act apply. He has moved an application for permission to lead additional evidence in this respect As the notification is published in the official Gazette a judicial