J.S. Verma, J.
1. Petitioner No. 1 (hereafter referred as petitioner Company) is a company incorporated under the Companies Act and petitioner No. 2, V. K. Khanna, is one of its Directors. Respondent No. 1, M. P. Housing Board, is a body corporate, which has been established under Section 3 of the M. P. Griha Nirman Mandal Adhiniyam, 1972 (hereafter referred as the 'Adhiniyam') The M. P. Housing Board has constructed a six storey building on the Agra Bombay road at Indore. This building was given by the Housing Board to the petitioner company for running a hotel, known as 'Suhag Hotel' therein, on the terms and conditions contained in the agreement (Annexure-A) dated 9-1-1978.
2. During the occupation by the petitioner-Company of this building as a licensee, contravention of the terms and conditions of the aforesaid agreement (Annexure-A), particularly those relating to payment of the licence fee was alleged by the Housing Board and not denied by the petitioner-Company. Accordingly, a notice (Annexure R-3) dated 5-4-1982 was given by the competent authority as required by Sub-section (2) of Section 55 of the Adhiniyam, to the petitioner-company requiring it to show cause why an order of eviction be not made under Sub-section (1) against it. The notice also required the petitioner to appear before the competent authority on 20-4-1982 for this purpose. However, the petitioner company merely sent a reply (Annexure R-4) dated 6-4-1982, to the competent authority stating that rent was being paid regularly every month, relying on the particulars of payment of rent at the rate of Es. 30,000/-per month, instead of Rs. 50,000/- per month specified in the agreement, for the months of January, February and March 1982, given therein. The petitioners thereafter did not even care to appear before the competent authority, or to show cause against eviction on 20-4-1982 or any other date, as required by the notice. The competent authority then made an order (Annexure-C) dated 20-5-1982, under sub-section (1) of Section 55 of the Adhiniyam pursuant to the above notice, directing the petitioner's eviction from the aforesaid building and requiring it to deliver vacant possession of the building within one month. Ultimately, the petitioner was evicted from the building on 16-4-1983 in pursuance of the order (Annexure -C) dated 20-5-1982, when the petitioner failed to vacate the building, by resort to sub-section (5) of Section 55 of the Adhiniyam, which permits forcible eviction in such a situation. Annexure-F dated 16-4-1983 is an order made by the competent authority invoking this power. This led to the filing of this petition under Article 226 of the Constitution, challenging the action of the Housing Board.
3. At the heaving of the petition Shri Y. Section Dharmadhikari, learned counsel for the petitioner, confined the relief only to challenging the order of eviction even though in the petition some more reliefs relating to ancillary matters were claimed. For this reason, it is not necessary to give the particulars relating to the ancillary matter, which we are not called upon to decide and we shall confine ourselves only to the challenge made to the petitioner's eviction from the building as a consequence of the order of eviction made under Section 55 (1) of the Adhiniyam.
4. It may be stated at the outset that the action for evicting the petitioner-company was taken on the ground of the petitioner's continuing default in payment of licence fee in accordance with the agreement, which enabled an order of eviction to be made under Section 55 (1) of the Adhiniyam. From the facts appearing from the record, including the documents of the a petitioner-company, it cannot be doubted that the petitioner-company was in default in payment of the licence fee at the time of the impugned action and this default, calculated on the basis of the licence fee specified in the agreement (Annexure-A) was for more than two months, not only on the date of notice (Annexure-R3) dated 5-4-1982, issued under Section 55 (2) of the Adhiniyam, but also on the date of the order of eviction (Annexure-C) dated 20-5-1982 made under Section 55 (1) of the Adhiniyam, the date of eviction, 16-4-1983, and even thereafter. Shri Dharmadhikari, when asked by us about the factual position with regard to the default in payment of licence fee, was unable to controvert this position, which emerges even from the chart of payment at page 75 of the paper Book, furnished by the petitioner. The result is that unless there be any reason to absolve the petitioner-company of its liability under the terms of the agreement (Annexure-A), the ground for eviction relied on and available under Section 55 (1) of the Adhiniyam, clearly exisits. To circumvent this difficulty, the petitioner's case is that notwithstanding this position which follows from the terms of the agreement (Annexure-A), the petitioner-company was not in default in payment of the licence fee because on account of a subsequent oral agreement, the particulars of which have not been specified, made some time in August 1980, the licence fee was reduced for the initial period from Rs. 50,000/- per month to Rs. 30.000/- per month only. As stated by learned counsel for the petitioner, this nebulous oral agreement is the mainstay of the petitioner's case. We shall show hereafter with reference to the petitioner's admissions in subsequent correspondence that this is factually incorrect and a clear afterthought to support the petition.
5. Facts relevant for deciding the points urged in support of this petition may now be stated. Admittedly the agreement (Annexure-A) dated 9-1-1978, executed between the parties contains the relevant terms and conditions including the rate at which licence fee was to be paid by the petitioner-company to the Housing Board. There is no dispute that the terms of this agreement relating to payment of licence fee and the rate at which it was to be paid were not modified by any document in writing at any time subsequently. It is also clear that the petitioner's claim for reduction in the rate at which licence fee was to be paid is based merely on an assertion of an alleged oral agreement, the particulars of which e. g., the individuals on the two sides between whom it wag made and similar significant particulars were not given at any time, including tha hearing of the petition. There is not even any document or letter written by the petitioner making such an assertion prior to the petition. The correspondence exchanged between the petitioner-company and the Housing Board indicates that the petitioner-company continuously defaulted in payment of licence fee according to the agreed terms and admitting the default, the petitioner-company always requested for grant of more time. In the agreement, the rate for payment of licence fee was specified for the first three years, commencing from 1-4-1978, at the rate of Rs. 50,000/- per month, after which it was to be paid at the rate of Rs. 55,000/- per month during the fourth year; at the rate of Rs. 60,000/- per month during the fifth and sixth years; at the rate of Rupees 65,000/- per month during the seventh year and at the rate of Rs. 70,000/-per month thereafter for the remaining period. In addition, to the licence fee being paid at the rate of Rs. 50,000/- per month initially, the petitioner-company was also required to pay Rs. 5,000/- per month for use of the furniture and Rupees 2,000/- per month for use of the boiler. There was an agreement to pay surcharge in case of default in payment of the licence fee. Particulars of surcharge are not necessary to mention since the petitioner-company undoubtedly defaulted in paying even the licence fee according to this agreed rate specified in the agreement (Annexure-A). As earlier stated, the payments made by the petitioner-company, according to its own version, are specified in the chart filed by the petitioner, which is at page 75 of the Paper Book, and the default of the petitioner-company in payment of the licence fee at the rate specified in the agreement is obvious from the detail given therein. This position could not be disputed or controverted by Shri Dharmadhikari, counsel for the petitioner.
6. We shall now mention the arguments advanced by Shri Dharmadhikari in support of the petition. The remaining relevant facts will be stated while dealing with the points relating to them. The contentions of the learned counsel for the petitioner are as under:--
(1) Section 55 of the Adhiniyam being violative of Article 14 of the Constitution is unconstitutional.
(2) Respondent No. 2, Executive Engineer of the Housing Board was not the competent authority empowered to make the order of eviction under Section -55.
(3) The power of eviction conferred by Section 55 (1) (a) (i) was not available in the present case because the default was in payment of the 'licence fee' and not 'rent'.
(4) The licence granted to the petitioner-company not being revoked, the order of eviction could not be made.
(5) The conduct of the Housing Board subsequent to making of the order of eviction amounts to waiver or supersession of the order of eviction.
(6) The power of eviction conferred by Section 55 has not been exercised in the manner prescribed therein. The show cause notice does not contain the necessary particulars and the order of eviction is not a speaking order. For this reason the right available to the petitioner under Section 55 (6) has been denied and the right of appeal conferred by Section 57 has also been rendered nugatory.
(7) In view of Clause 11 of the agreement (Annexure-A) providing for settlement of any dispute between the parties by arbitration, such an arbitration was a condition precedent to the exercise of the pov/er of eviction given by Section 55 of the Adhiniyam. No such arbitration having been made, the power of eviction given by Section 55 could not be invoked.
In reply, Shri Section C. Bagadia for respondent No. 1 contended that even on admitted facts, the order of eviction is justified and there is no invalidity in Section 55. Shri R. K. Verma, the learned Dy. Advocate General, appearing for the State of M. P. adopted the arguments of Shri Bagndia on the question of validity of Section 55.
7. Before proceeding to consider the above contentions, it would be appropriate to quote Section 55 of the Adhiniyam, which reads as under:--
''55. Power to evict certain persons from Board premises.-
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force if the competent authority is satisfied.
(a) that the person authorised to occupy any Board premises has-
(i) not paid rent lawfully due fromhim in respest of such premises or a period of more than two months, or
(ii) sublet without the permission of theBoard the whole or any part of suchpremises, or
(iii) otherwise acted in contravention of any of the terms under which he is authorised to occupy such premises, or
(b) that any person is in unauthorised occupation of any Board premises; the competent authority may, by notice served in the manner laid down in Section 89 or 90, order that the person authorised to occupy as well as any other person who may be in occupation of the whole or any part of the said premises shall vacate them within one month of the date of the service of the notice.
(2) Before an order under Sub-section (1) is made against any person, the competent authority shall inform the person by notice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made within a period to be specified in such notice.
(3) The competent authority may on an application grant extension of the period specified in such notice on such terms as to payment and recovery of the amount claimed in the notice, as he deemed fit.
(4) Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the records of the case, and such person shall be entitled to appear in the proceeding either in person or by an authorised agent or by pleader.
(5) If any person refuses or fails to comply with an order made under subsection (1), the competent authority may evict that person from and take possession of the premises and may for that purpose use or cause to be used such force as may be necessary.
(6) If a person who has been ordered to vacate any premises under Sub-clause (i) or sub-clause (iii) of Clause (a) of subsection (1) within one month of the date of service of notice or such longer time as the competent authority may allow, pay to the Board the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the competent authority as the case may be, competent authority shall, in lieu of evicting such person under sub-section (5). cancel, its order made under sub-section (1), and thereupon such person shall hold the said premises on the same terms on which he held them immediately before such notice was served on him.
Explanation.-- For the purposes of this section arid Section 56, the expression 'unauthorised occupation' in relation to -any person authorised to occupy any Board premises, includes the continuence in occupation by him or by any person claiming through or under him of the Beard premises after the authority under which he was allowed to occupy the said premises has been duly determined.
8. We shall dispose of the contention relating to vires of Section 55 of the Adhiniyam at the outset. The contention of Shri Dharmadhikari, learned counsel for the petitioner, is that the provision violates Article 14 of the Constitution and is, therefore, unconstitutional. His argument is that the remedy under Section 55 is in addition to the ordinary remedy of civil suit and choice of the remedy is left to the whim and caprice of the Housing Board and, therefore, Section 35 is unconstitutional. He also argues that the procedure prescribed in the Adhiniyam for eviction under Section 55 (]) thereof is unfair in comparison to the procedure applicable in a civil suit. It is on this ground that Section 55 is alleged to be unconstitutional. Reliance is placed by Shri Dharmadhikari on the derision in N. I. Caterers (Pvt) Ltd. v. Staio of Punjab, AIR 1967 SC 1581. In reply, Shri Bagadia, appearing on behalf of the Housing Board, lias referred to the Supreme Court decision in M. Chhagganlal v. Greater Bombay Municipality, AIR 1974 Sc 2009, and contended that the procedure in Section 55 is not unfair and there is no other vice therein to render it unconstitutional. In our opinion, there is no merit in this contention of the learned counsel for the petitioner.
9. In our opinion, the decision of the Supreme Court in M. Chhagganlal v. Greater Bombay Municipality (supra) is a complete answer to this contention. In N. I. Caterers (Pvt) Ltd. (supra), Section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, was held to be invalid by the majority, on the ground that the Act did not repeal the remedy of eviction under the ordinary law and, therefore, two alternative remedies, of which one was more drastic, namely Section 5, was discriminatory and violalive of Article 14 This decision came up for consideration before a larger Constitution Bench in M, Chhagganlal v. Greater Bum bay Municipality, AIR 1974 SC 200'J. It was held that merely because one procedure provides the forum of a Civil Court while the other provides the forum of an administrative tribunal, it cannot be said that the latter is more drastic and onerous and that to attract the inhibition of Article 14, there must be substantial and qualitative difference between the two procedures so that one is really and substantially more drastic and prejudicial. On an examination of the scheme of the impugned statute, it was held that it did not attract the vice of discrimination because the two procedures were substantially the same, notwithstanding the fact that the forum under the statute was an administrative tribunal manned by executive authorities and not a judicial officer. The remedy of one appeal and then resort to the remedy under Articles 226 and 227 of the Constitution were also treated as sufficient safeguards to equate the procedure under the statute with, that available in an ordinary civil Court. It is, therefore, clear that mere availability of two procedures, one under the ordinary law and the other under the impugned Act does not by itself attract the vice of discrimination, unless one of them is so harsh or onerous as to suggest that a discrimination would result, if resort is made to it instead of the ordinary remedy under the general law. The majority in M. Chhagganlal (supra) also expressed its disagreement with the majority view in 'N. I. Caterers Ltd. (supra). However, the unanimous conclusion reached in M. Chhagganlal's case in the different judgments to determine the vice of discrimination, was the same as indicated earlier. The real question, therefore, is whether the provisions of the Adhiniyam with which we are concerned, suffer from any infirmity to attract the vice of discrimination? We find that the reasons which led the Supreme Court to uphold the validity of the impugned provision in that case are equally available for upholding the validity of Section 55 of the Adhiniyam, with which we are concerned.
10. Sub-section (1) of Section 55 of the Adhiniyam confers the power enabling the competent authority to make an order of eviction in the circumstances clearly enumerated therein and requires -compliance of Unit order within one month of its service. Sub-section (2) provides that before making an order under Sub-section (1), the competent authority shall inform the person in writing of the grounds on which the proposed order is in be made and it shall give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made. Sub-section (3) enables the competent authority to grant extension of the period specified in such notice, if he deems it fit. Sub-section (4) requires the entire material produced by the person to form part of the record of the case and permits the person to appear in the proceeding either in person or by an authorised agent or by pleader. Sub- . section (5) provides for taking forcible possession where the person refuses to comply with the order validly made under sub-section (1). after following the procedure indicated. Sub-section (fi) gives a further opportunity to pay the arrears of rent or to comply with the terms contravened, which has led to the making of the eviction order under sub-section (1), and in case of such compliance, the order of eviction made under subsection (1) i.s to be cancelled in lieu of evicting him under sub-section (5). This gives a further opportunity to avoid eviction by curing the default even after the eviction order has been made under sub-section (I). Admittedly, no such opportunity would be available after a decree is passed in a civil suit. Section 57 provides for an appeal to the State Government by the person aggrieved by the order made by the competent authority under Section 55. Sub-section (2} of Section 57 enables the State Government to even make a further enquiry, if neces-sary. before deciding the appeal. Admittedly, the remedy of approaching the High Court under Articles 226 and 227 of the Constitution i.s also available after the decision is made in appeal.
11. These provisions clearly indicate that the same procedure as is followed by the civil Court in deciding a civil suit i.s prescribed, before making an order of eviction under Sub-section (1) of Section 55. A further opportunity to avoid eviction even thereafter i.s given by Sub-section (6) whieh is not available in case of a civil suit. The remedy of appeal exists under Section 57 and thereafter resort to Articles 226 and 227 of the Constitution for approaching the High Court can be made. The only real difference between the procedure before an ordinary civil Court and that under Section 55 is that the civil Court is manned by a judicial officer, while the competent authority acting under Section 55 is not so. This difference alone in the two procedures was not treated as sufficient to attract the vice of discrimination in M. Chhagganlal's case. In our opinion for the same reasons, the contention of the learned coun-set for the petitioner that Section 55 of the Adhiniyam violates Article 14 of the Constilution must be rejected.
12. The next contention relates to the competence of respondent No. 2, Executive Engineer of the Housing Board, to perform the functions of the competent authority under Section 55 of the Adhiniyam. In our opinion, this contention has also no merit. Section 2 (7) of the Adhiniyam defines 'competent authority' to mean any person authorised by the State Government, by notification to perform the functions of the competent authority under Chap. XII for such area as may be specified in the notification and shall be a person who is holding or has held an office, not lower in rank than that of a Deputy Collector, no Executive-Engineer under the Board. Admittedly, respondent No. 2 being Executive Engineer of the Housing Board, satisfies this requirement. The requisite notification issued by the State Government is on record. The only defect, therein pointed out by the learned counsel for the petitioner is that the notification is not in respect of specified individuals but has been made with reference to the office. In other words, the argument is that the notification should have been issued by name pertaining to the officer concerned and not by office. In our opinion, Section 15 of the M. P. General Clauses Act is a complete answer to this argument. It empowers the appointinq authority to appoint a functionary either by name or by virtue of office. This argument also, therefore, fails and is rejected.
13. Another argument advanced is that 'licence fee' not being 'rent' Section 55 (1) (a) (i) was not available i' the present case for making the order of eviction. In our opinion, even this areument has no merit. Apart from the fact that sub-clause (iii) in addition to sub-clause (i) of Clause (a) of Sub-section (1) of Section 55 also is attracted in the present case, we find that the meaning of the word 'rent' used in sub-clause (i) in the context also includes 'licence fee'. Sub-section (1) of Section 55 gives the power to evict certain persons from the Board's premises and clause (a) therein permits eviction of any person authorised to occupy any Board's premises, who has committed any of the defaults mentioned in the three sub-clauses therein. Sub-clause (i) relates to default in payment of the consideration lawfully due from him for occupation of the Board's premises for a period of more than two months; sub-clause (ii) relates to default of subletting without permission of the Board, and sub-clause (iii) relates to the default committed by contravening any of the terms under which he is authorised to occupy the premises. It is, therefore, clear that in the context in which the word 'rent' is used in sub-clause (i), it means any consideration by whatever name it is called, which is required to be paid by the occupant to the Board in lieu of the authority to occupy given to him by the Board. This consideration may be called 'rent' or 'licence fee' or by any other name.
14. Section 55 (1) (a) (ii merely provides for eviction of an occupant who has not paid the consideration due from him for a period of more than two months irrespective of the exact jural relationship of the occupant which is not of any consequence in the context. Use of the word 'rent' in this provision is, therefore, of wide import meaning any consideration for permission to occupy the Board's premises by whatever name it is called and, therefore, it also includes 'licence fee' which was required to be paid by the petitioner company in view of the transaction being in the nature of a licence instead of a lease. It was held in State of Punjab v. British India Corporation, AIR 1963 SC 1459, that the word 'rent' in its wider sense means any payment made for the use of land or building, which includes payment by licensee in respect of use and occupation of any land or building. It may also be mentioned that the consideration for occupation of the premises required to be paid by the petitioner-company to the Hi'using Board has been understood throughout and also described as 'rent' even in the agreement and also in the correspondence by the petitioner-company. There is thus no merit even in this contention.
15. The next contention of the learned counsel for the petitioners that the licence was not revoked before making the order of eviction is also devoid of merit. Section 61 of the Easements Act lays down that revocation of a licence may be express or implied. Implied revocation results even from the acts and conduct which are inconsistent with the continuance of the licence. There is ample material present on record to indicate that this argument advanced on behalf of the petitioner is a mere afterthought and the petitioner-company was never in doubt about the revocation of its licence before making of the eviction order. The correspondence between the parties, which is on record, clearly indicates this position. However, reference to the same at some length is made hereafter while dealing with the point of waiver advanced in support of the petition.
16. Wo shall now take up the question of waiver by the Housing Board, which is one of the argument advanced in support of the petition. There is copious correspondence between the parties which has been placed on record. At the very outset, we may mention that reading the entire correspondence, there can be no doubt that the Housing Board or the competent authority never contemplated superseding the order of eviction or of abandoning the right of eviction, which had accrued to the Housing Board as a result of the continuing default in payment of the licence fee by the petitioner company. The entire conduct of the parties is totally inconsistent with the plea of waiver. It is also significant that the petitioner-company did not, at any stage, make any such assertion prior to the filing of the petition and the only thing said by them throughout was that they needed some more time for making the payments due from them. At no time did the petitioner company deny its default or liability for eviction. Even the contention of subsequent oral agree-ment in August 1980 to reduce the licence fee from Rs. 50,000/- per month initially to Rs. 30.000/- per month was never' asserted by the petitioner company till the filing of this petition, after eviction in April 1983. This alone is sufficient to indicate that such a stand taken by the petitioner-company is a clear after thought and is obviously incorrect.
17. At this stage, a reference may first be made to the letter (Annexure H) dated 31-8-1982 sent by the petitioner company to the Housing Board after the order of eviction was made on 20-5-1982 under Section 55 of the Adhiniyam. In this letter (Annexure-H) also the peti-,tioner company clearly admitted its liability to pay the full rent as per agreement (Annexure-A), besides offering to pay a sum of Rs. 1,00,000/- from September 1982 towards the adjustment of the dues including arrears of rent. It is difficult to believe that such a candid admission would be made by the petitioner company on 31-8-1982 of its liability to pay full rent according to the agreement and also the arrears of rent at the same rate, if there had been an agreement before that date reducing the rent to any sum below that specified in the agreement. This letter is also significant to show the petitioner's admission of the continuing default in payment of rent, which admittedly was for a period of more than two months even then. This letter also indicates that the petitioner company was fully aware of the exact amount due from it to the Housing Board and there was never any ambiguity about the same. This alone is sufficient to falsify the petitioner's contention of reduction in the rate of rent, assuming it was possible to modify orally a written agreement.
18. Reference may now be made to some other parts of the correspondence between the parties. The correspondence clearly shows that default was committed in payment of the licence fee by the petitioner-company from the very outset and making of the order of eviction and thereafter its implementation was actually delayed to give further opportunities to the petitioner company but even then the petitioner company continued to be in default. Omitting the earlier correspondence, we find that in a letter from 'the Housing Board to the petitioner company, it was pointed out that the arrears of rent had accumulated to Rs. 7,42,042.19 up to the end of December 1980 after adjustment of the last deposit made on 17-12-1980. and that the rent was revised to Rs. 62.000/- per month with effect from 9-1-1992 as perterms and conditions of the agreement. The Housing Board then sent a letter dated 4-2-1981 to the petitioner company referring to its commitment made on 25-1-1981 for payment of arrears of rent and demanding immediate payment of Rs. 3,00,000/- towards the arrears. This demand was reiterated on 16-2-1981. Then by a letter dated 12-3-1931, the demand was reiterated mentioning the earlier reminders therein and it was again said that Mr. Vijay Khanna (petitioner No. 2) had assured the Housing Commissioner to pay Rs. 3,00,000/-to wards arrears. and to continue payment of the current rent regularly but the same had not been done. Another letter, dated 31-3-1981, from the Housing Board to the petitioner-company is similar. Then by a letter dated 16-5-1981 from the Housing Board to the petitioner company, it was pointed out that full rent had not been paid according to the agreement and by payment of smaller amounts, the arrears were increasing and the liability resulting from breach of contract was attracted. By letter dated 25-6-1981 from the Housing Board to the petitioner-company, it was again pointed out that the arrears of rent had accumulated to Rs. 8,46,042.19 up to the end of May 1981 and it was stated that continuing default would result in termination of the agreement according to its terms. Further reminders were sent by the Housing Board to the petitioner company on 17-6-1981, 18-8-1981, 16-9-1981, 4-10-1981, 31-10-1981, 7-11-1981 and 4-12-1981. In the Housing Board's letter dated 4-10-1981, the arrears of rent amounting to Rs. 9,45,285.19 up to August 1981, were specified and it was also pointed out that from the very outset the petitioner company had not paid even one month's rent properly when it was due. The petitioner company's letter dated 18-7-1981 written to the Housing Board may also be mentioned at this stage. There is categorical admission therein of the actual rent in arrears without addition of surcharge amounting in Rs. 16,24,080.58. Thereafter the petitioner-company requested for affording further time and facility to clear the arrears which were expressly admitted. There is also a categorical admission of being in default by nonpayment of the rent in time. These admissions made by the petitioner company in its letter daied 18-7-81, coupled with the admissions made by it subsequent to that date according to the petitioner's own case, are sufficient to indicate existence of the ground of eviction available under Section 55 (1) (a) (i) to support the order of eviction made against the petitioner-company. Another letter dated 30-11-1981 of the petitioner-company to the Housing Board contains a similar admission of existence of arrears of rent and promise to pay Rs. 1,00,000/-towards arrears of rent. The letter dated 30-12-1981 from the petitioner-company to the Housing Board also refers to rent at the rate of Rs. 57.500/- per the current month, i. e.. December 1981. These letters contain clear admissions negativing the petitioner's present claim that rent was reduced from Rs. 50.000/- per month initially to Rs. 30,000/- per month. It is unnecessary to refer to any more correspondence which is to the same effect.
19. At this stage, reference may also be made to the affidavit dated 11-7-1983 riled by V. K. Khanna (petitioner No. 2) in this petition. In this affidavit it is stated that even according to the petitioner's calculation the net amount of licence fee due from the petitioner company to the Housing Board. excluding surcharge, amounted to approximately Rs. 2,50,000'-. This would only show that the petitioner company was all along aware of the full particulars of the arrears of the licence fee due from it to the Housing Board and the Housing Board, at no time, indicated any intention of giving up its claim either for recovery of arrears of licence fee or for evicting the petitioner as a consequence thereof. All that can be said is that the Housing Board gave the petitioner-company further opportunity of almost one year subsequent to the order of eviction being made on 20-5-1982 before proceeding to actually evict the petitioner company forcibly on 16-4-1983. when it was found that in spite of the repeated assurances the petitioner-company was not paying all the arrears and it had till then not cleared the arrears. The default made by the petitioner company which led to the making of the order of eviction under Section 55 (1) continued till its actual eviction on 16-4-1983 and even thereafter. There is thus nothing to indicate that the Housing Board had waived its right to evict the petitioner company or that the competent authority had superseded its order of eviction. The argument of waiver and the connected point relating to the revocation of licence dealt with earlier have, therefore, no merit and are rejected.
20. We shall now take up the point relating to exercise of the power under Section 55. It has been argued that the show cause notice does not contain the necessary particulars and the order of eviction also suffers from the same defect. A reference to the entire correspondence, in the background of which these documents have to be read, clearly shows that there was no substantial defect of this nature. Even according to the petitioner's account, there was default in payment of licence fee and the exact amount was not only known to [sic] but was repeatedly intimated by the Housing Board in the letters sent by it to the petitioner repeatedly till issue of the notice leading to the order of eviction. It is really for this reason that is petitioner, except for sending a reply dated 6-4-1982 to the notice dated 5-4-1982, did not even choose to appear and show cause against the same as required by the notice on the date specified therein. Admittedly, the petitioner company had no answer to the notice in view of the admitted continuing default of the petitioner company throughout. Similarly, there was no denial of the opportunity which was available to the petitioner under Section 55 (6) of paying the entire arrears of licence fee in order to avail of the benefit thereunder. This opportunity was continuously given to the petitioner-company for almost one year after making the order of eviction under Sub-section (1), prior to proceeding under Sub-section (5) to take forcible possession on 16-4-1983, which is evident inter alia from the admissions of the petitioner-company itself in its several letters, including the letter (Annexure-H) dated 31-8-1982. The notice issued under Sub-section (2) and the order of eviction made under Sub-section (1) read along with the correspondence in the light of the petitioner's own admissions, leave no doubt that the opportunity to the petitioner as contemplated by Section 55 was given to it repeatedly and nr, prejudice f any kind was caused to the petitioner company by not repeating all the facts admittedly known to the petitioner company, once again
21. The petitioner voluntarily did not choose, to prefer an appeal under Section 57 in spite of being aware of the order of eviction, for the simple reason that on merits it had no case to assail the order of eviction, which is supportable even on the admitted facts. This hypertechnical argument in the present case, if accepted, will only frustrate the course of justice instead of advancing it. These provisions in Section 55 have been enacted obviously to give adequate opportunity to a person who is evicted to enable him to show cause against the same and where this result has been fully achieved and cannot be disputed in view of the admitted facts, it would defeat the cause of justice, instead of advancing it, if such an argument were to be upheld for the benefit of the present petitioner, who had no excuse or cause to put forward to oppose the order of eviction which was proposed against it. Even at the hearing of the petition suggestion was made of any prejudice to the petitioner company and no indication was given of any possible ground to contest the notice.
22. In our opinion, the benefit of the discretionary power under Article 226 of the Constitution, when there is no prejudice at all to the petitioner, should not be given to the petitioner on a mere technicality. This is sufficient to reject this contention also.
23. The last contention is that the power under Section 55 could not be invoked before resorting to arbitration under Clause 11 of the agreement, which reads as under:--
'In the event of any question, dispute or difference arising between the parties, during the continuance of this agreement or at any other time, the same shall be referred to the sole Arbitration of the Secretary to the M.P. Government in the Housing Dept., Bhopal and settled in accordance with the provisions of the Indian Arbitration Act 1940 (as amended from time to time) and the decision of the said Arbitrator shall be conclusive, final and binding upon the parties.'
24. In our opinion, there are several reasons for rejecting this argument also. In the first place, Clause 11 or, in other words, the arbitration clause, is attracted only when a dispute has arisen. Learned counsel for the petitioner contended that by denying the existence of any arrears of rent in the reply (Annexure-R-4) dated 6-4-1983, given to the notice (Annexure-R-3) dated 5-4-1983, the petitioner company had raised such a dispute, which attracted the arbitration clause. In our opinion, the facts of the case do not disclose that any such dispute had arisen in order to attract the arbitration clause. The petitioner's reply (Annexure R-4) dated 6-4-1983 has not to be read in isolation. It merely refers to payment of three months' rent at the rate of Rs. 30,000/- per month and nothing more. Learned counsel for the petitioner was unable to point out any other document to support his contention that a dispute had arisen regarding payment of the arrears of rent, requiring adjudication by arbitration. The entire correspondence is full of repeated admissions by the petitioner company of existence of arrears of rent and repeated request for grant cf further time and facility to pay the entire arrears. The liability to pay at the rate specified in the agreement and the petitioner company admitting to be in arrears at all relevant times for a period of more than two months, is a common theme appearing throughout in the correspondence between the parties. In such a situation, there being no dispute about the existence of arrears of rent for a period in excess of two months, at all times, and no request for arbitration being made, there was no occasion for the arbitration clause to be attracted or for it to become a condition precedent to the exercise of the power under Section 55 of the Adhiniyam.
25. There is another reason for the above conclusion. The arbitration clause applied to a dispute relating to the agreement. The petitioner company does not dispute its liability according to the terms of the agreement. Accordingly, the arbitration clause has no application. For this reason, it is unnecessary to refer to the cases relied on by the learned counsel for the petitioner to support his contention that prior adjudication, whore provided, is a condition precedent for exercise of the power available as a result of adjudication of the dispute. Those cases apply when there was a dispute in existence. That is not the position here.
26. There is mother aspect of this question. The petitioner's reply dated 6-4-1982 (Annexure R-4) on which alone reliance is placed for contending that a dispute had been raised to attract the arbitration clause contained in Clause 11 of the agreement, was a reply given by the petitioner after Section 55 had been invoked by giving a notice dated 5-4-1982 (Annexure R-3), in accordance with Sub-section (2) of Section 55. It is doubtful whether this letter dated 6-4-1982, which was a reply to the notice issued under Section 55 (2) can be relied on for the purpose of contending that a dispute had been raised before the power under) Section 55 had been invoked. However, it is not necessary to rest our decision on this aspect.
27. We would, however, also mention that the petitioner invokes the aid of our power under Article 226 of the Constitution and for this purpose we are entitled to examine whether a mere technicality should compel us to grant the relief claimed by the petitioner when on merits wo do not find him entitled to it. In cur opinion, there can be no such compulsion when we find that the petitioner company was admittedly in default even according to it is own version and the ground for eviction available under Section 55 (a) (i) existed throughout to support the order of eviction made under Section 55 (1) of the Adhiniyam, and that further opportunity of almost a year given to the petitioner company afler making the order of eviction to avail of benefit of section 55 (6) has also not been availed of by it to discharge its liability.
28. In our opinion, these are good grounds to decline any relief to the petitioners in exercise of our writ jurisdiction under Article 226 of the Constitution, even if any technical argument had been made out in petitioner's favour. Moreover, we have already rejected all the contentions advanced in support of the petitioner.
29. Consequently, the petition fails and is dismissed with costs. Respondent No. 1 will get its costs from the petitioners. Counsel's fee Rs. 500/-, if certified.