Late Revti Devi (Deceased) Through Sh Ved Prakash v. Delhi Urban Shelter Improvement Board & Ors

ORDER %

16.07.2018 tV.P. (C) 6539/2019 <6 other connected matters Page 3 of12

¶1The petitioners have filed the present petitions impugning the orders - all dated 14.05.2018 - passed by the Competent Authority, Delhi Urban Shelter Improvement Board (hereafter 'the Competent Authority') whereby their respective applications for cross-examination of respondent no.4 was rejected.

¶2The petitioners had filed their respective applications - which were similarly worded - in the proceedings instituted by respondent no.4 against each of the petitioners before the Competent Authority. The said proceedings were instituted under Section of the Slum Areas (Improvement and Clearance) Act, 1956 (hereafter 'the Slum Act') seeking permission of the Competent Authority for instituting proceedings for eviction of the petitioners from premises known as Mahal Sarai, Chowk Rai Ji, Nai Sadak, Roshanpura, Delhi-06. It is claimed that the said premises consists of about 75 small rooms and 10 toilets on the ground floor.

¶3The petitioners claim that they belong to the category of Scheduled Castes and the economically weaker section of the society. It is stated that most of the petitioners are daily wage workers or street vendors and, therefore, would be unable to afford any accommodation if they are evicted from the premises in question.

¶4it is stated that respondentno.4 had purchasedthe entire premises, Mahal Safai, Chowk Rai Ji, Nai Sadak, Roshanpura, Delhi-06, in 2006. Respondent no. 4 had, thereafter, filed separate applications against the petitioners under Section 19 of the Slum Act.

¶5Each of the petitioners filed a separate application before the fV.P. (C) 6539/2019 other connected matters Page 4 of12 G CompetentAuthority,interalia,prayingthatthey be grantedan opportunity to cross-examinerespondentno.4. In their applications,they alleged that respondentno.4's applicationwas based on false and fictitiousallegations. It was also claimed that respondentno.4 was a person of means and had purchasedthe buildingin questionformonetarybenefits.

¶6The CompetentAuthorityconsideredthe aforesaidapplicationsand rejectedthe requestsmade by the petitionersprincipallyfor the reasonthat the petitionershad not.indicatedany specifictestimony,of respondentno,4, whichthey desiredto discredit.The CompetentAuthorityalso reasonesdthat it was not requiredto conducta full fledgedtrial and could acceptevidence by way of affidavits.The CompetentAuthorityobservedthat it is only in cases where it is not possiblefor the partiesto disproveavermentsthrough affidavits that an opportunity may be granted for cross-examinationof the concerned witness.

7., Mr Mishra,the learnedcounselappearingfor the petitionerscontends that the petitionerswould have a right to cross-examinerespondentno.4 in order to elicit the truth of the aveiments made by him. Mr Mishra also referredto the decisionof this Courtin Gurcharan Singh v. Ram Kaur and Anr.: AIR 1975, Delhi 36m support of his contention.

¶8Ms Pushkama countered the aforesaid submissions and submitted that proceedingsunder Section 19 of the Slum Act are summaiyin nature and, therefore, the CompetentAuthorityhas the discretion,to decidewhether to permit the cross-examination of a.witnesses or not. She submitted tha.t in the,present case,the Competent Authority had, in its discretion, concluded W.P. (C) 6539/2019<S otherconnectedmatters Page5 of12 that cross-examinationof respondentno.4 was not warranted.She further submitted that the petitionershad not indicated any reason, why it was imperativeforthemto cross-examinerespondentno.4. Shealso reliedonthe decision of a Coordinate Bench of this Court in Ashwani Raj v. Shiv Mandir Dharamshala Rajputana GomailKshatriyaPrabndhak Committee (Regd.)& Ors. :243(2017)DLT580in supportofher contentions. 9, At the outset, it would be relevant to refer to Section 1.9 of the Slum Act, whichexpresslyproscribesany personfrom initiatingproceedingsfor . evictionofthe tenantswithoutthe pennissionofthe CompetentAuthority. Section 19 of the Act reads as under:- "19. Proceedings for eviction of tenants not to be taken without permission of the competent authority.—(1) Notwithstandinganything containedin any other law for the time being in force, no personshall, exceptwith the previous permissionin writingof the competentauthority,—

(a) institute, after the commencement of the Slum Areas (Improvementand Clearance),AmendmentAct, 1964,any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or

(b) where any decree or order'is obtainedin any suit or proceeding instituted before such comniencement' for the eviction of a tenant fi'om any building or land in such area, execute such decree or order

(2) Every person desiringto obtain the permission referredto in sub-section(1) shall make an applicationin writingto the competent authority in such form and containing such particulars as liiay be prescribed.

(3) On receipt of such application,the competentauthority. W.P. (C) 6539/2019&otherconnectedmatters Page6of12 5^ after giving an opportunityto the parties of being heard and after making such summary inquiry into the circumstances of thecase as it thinksfit, shallbyorderin writing,eithergrantor refuse to grant such permission.

(4) In grantingor refusingto grant the permissionunder sub section (3), the competentauthority shall take into account the following factors, namely I

(a) whetheralternativeaccommodationwithin the means of the tenant would be available to him if he were evicted;

(b) whether the eviction is in the interest of improvementand clearanceof the slum areas;

(c) such other•factors, if any; as may be prescribed. ' ; . . • • •

(5) Wnere the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for suchrefusaland furnisha copythereofto the applicant.]"

¶10A bare reading of Section 19(4) of the Act indicates the factors that f are requiredto be consideredby the CompetentAuthoritywhile examining whether to grant permission for initiation of the eviction proceedings. ^ Essentially,the CompetentAuthorityhas to considerwhether the tenants againstwhom evictionproceedingsare soughtto^be initiated.havethemeans to afford an alternative accoinmodation if evicted. Further, the examination by the Competent Authority is focused on ascertaining whether such eviction would be in the interest of improvement and clearance of the slum areas. ' ' '

¶11As it is apparent from the above, the object of examination under Section 19 of the Slum Act. is not related to the respective rights of a ,W-P-(Q6539/2019&otherconnectedmatters. Page 7of12 I'-. v.. 'I landlordand a tenant. The nature of the proceedingsbeforethe Competent Authority must be considered in the aforesaid context.

¶12It is well settled that such proceedings are summary in nature.

¶13Rule 7 of the Slum Areas (Improvement and Clearance) Rules, 1957 provides for the form of application under Section 19 of the Slum Act. Rule 7A of the said Rules provides for the procedure to be followed by the Competent Authority for dealing with an application under Section 19 of the Act. Rule 7A of the said Rules is set out below:- "7A. Procedure to be followed by the competent authority.—

(1) On receipt of an application under rule 7, the competent authority shall, for the purpose of giving an opportunity to the parties of being heard, fix a date for hearing the parties and cause a notice (intimating such date) to be issued to them.

(2) On the date fixed for hearing, or on such other date or dates to which the hearing may be adjourned, the competent authority shall hear the parties, examine the witnesses, if any, produced, and the documents filed, by them.

(3) If either of the parties is absent on any date of hearing, the competent authority may in his absence, and after hearing the party present, pass such order, as it thinks fit."

¶14In view of the above, there can be no dispute that the Competent Authority does have the power to permit cross-examination of any witness. However, it is not necessary that this power be exercised in each and every case.

¶15In Gurcharan Singh v. Ram Kaur and Anr.: AIR 1975, Delhi 36 this court had observed as under:- fV.P. (C) 6539/2019 & other connected matters Page 8 of12 "6. So far as the first reason is concerned, the Competent Authority seems to be under the impression that it has no jurisdiction. or power to , summon Respondent 1, for cross-examination. It is true that the Competent Authority in exercising its jurisdiction under See, 19 of the Slum Areas Act is not a Court in the strict sense of the term, and the provisions of the Code of Civil procedure are .not in terms attracted as held by V. S. Deshpande, J. in Mohinder Singh v. Competent Authority: AIR 1974 Delhi 219 . It is also true that inquiry by the Competent Authority under Section 19 of the Slum Areas Act is of a summary nature. But. as held by a Division Bench of this Court (I. D. Dua, C. J. and V. S. Deshpande. J.) in Ashok Kumar V. Competent Authority, Civil Writ Petition No. 896-D of 1966 decided on August 14, 1968 (Delhi) the Dower of the Competent Authority under Section 19(3) of the Slum Areas Act to hold such summary inquire as it thinks fit includes the power to summon witnesses and documents. V. S. Deshpande, J., who spoke for the Court, observed that without exercising such a power it could not be said that the Competent Authority would be enabled in every case to hold such a summary inquiry. The learned Judge further observed that the Dower to hold the summary inquire as it thinks fit clearly gives the Competent Authority the power to call for witnesses or for documents to complete the inquire before it to its own satisfaction. The said view of the Division Bench was based on "the general Principle that the Competent Authority being a general natural justice Tribunal empowered to record evidence must be presumed to have the power of summoning witnesses or at any rate to request witnesses to attend before it to give evidence." The said Principle has been enunciated in the following manner on p. 436 of Halsbury's Laws of England. Vol. 36. 1961, Edition:- "The Powers conferred by an enabling statute include not only such as are expressly granted but also, by implication all powers which are reasonably necessary for W.P. (C) 6539/2019 & other connected matters Page 9 of12 the accomplishmentof the objectintendedto be secured." When one ofthe Partiesfiles an affidavitand the oppositeParty questionsthe truthofan avermentin the affidavit,the Competent Authority has necessarily to decide the truth or otherwise of the said averment.For that purposethe CompetentAuthorityhas to permit the opposite party to adduce evidence, oral or documentary,in rebuttalof the truth ofthe questionedaverment. It may, however, be not possiblein every case for the opposite y party to find oral or documentary evidence to disprove the averment and in rich a situationthe only other manner in which the opposite party can disprove or shake the veracity of the personwho sworeto the affidavitis to subjectthe said personto cross-examination. It thus seems to me that the Power of the CompetentAuthorityunder Section19(3)to hold such summary inquiry as it thinks fit includesnot only the power to summon witnessesand documentsas held by the DivisionBench,but also to summon the dependent of an affidavit filed or a sworn statementmade beforeit for cross-examinationeitherbyitself or at the instance of the opposite party. I Therefore, hold that the view of the Competent Authority that it had no power or jurisdiction to summon a person for cross-examination was not correct." ^

¶16As is apparentfrom the above,the comt had rejectedthe contention that the Competent Authority did not have the power to summon any y witness for cross examination. But, the court,had also explained that proceedingswere summary in nature and the CompetentAuthoritywould hold such enquiry as it thinks fit.

¶17Since, the proceedingsbeforethe CompetentAuthorityare summary in nature, the Competent,Authority would have to evaluate whether cross-examination of any person is necessary in.a particular case. In the facts of the present case, the petitioners have been unable to establish as to why cross examination of respondent no. 4 is necessar}''and, to how they W.P. (C) 6539/2019&otherconnectedmatters Page10of12 ,' ''i r"-: would be prejudiced by denial of such cross-examination.

¶18In the present petitions, the petitioners have relied on the following passage from their respectiveapplications-which are all similarlyworded-filed before the Competent Authority to support their contention that cross-examinationof respondentno.4 is necessarj?-:- \ "That the petitioner is man of means and having other properties and he is purchased this building just to demolish it and for the monetary benefits and he had earlier also purchased such type of properties and therefore needs to be cross examined for the extraction of truth and it can be when ' he is confronted and cross examined and-therefore this application."

19., Thus, according to the petitioners, it is necessary to cross-examine respondentno.4 to establishthat he is a personof means and has purchased the property in question for monetary benefits. Plainly, the issue whether respondent no.4 is a person of means or has purchased the premises for I monetarygains is not materialto considerhis applicationunder Seption 19 of the Act. As observed earlier the focus of examination under Section 19 of the Slum Act is to detennine whether eviction would be in the interest of improvement arid clearance of sluni areas. Thus, the decision of the Competent Authority to deny the petitioners' request for cross-exaniiriation of respondent no.4 c'annot be faulted.

¶20Mr Mishra, the learned counsel appearing for tlie petitioners contended that respondent no.4 had also stated that the petitioners were persons, of means and, therefore, the petitioners ought to be given an^ opportunity to establish that the, said statement is incorrect. The issue V W.P. (C) 6539/2019A other connectedmatters Page II of12 1> whetherthe petitionersare not personsof means, can be establishedby the petitioners by producing evidence which is in their control. This would include their bank accounts, statement of incomes etc. Mr Mishra further contendedthatrespondentno. 4's statementthatthepetitionerswere persons of means was a bald statement without any basis. If this is so, it is obvious that it is not necessaryfor the petitionersto cross-examinerespondentno.4 ^ to disprove the same and it is open for the petitionersto establishtheir financial/economicconditionby adducingthe material within their control. ^

¶21In viewofthe above,the presentpetitionsare dismissed.The pending applications are also disposed of •-n VIBHU BAKHRU, J JULY 16,2018 pkv W.P. (C) 6539/2019&otherconnectedmatters Page12of12

$-13, 43, 45, 46, 47, 49, 50, 53 & 59 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6539/2018 & CM No. 24965/2018 LAXMAN DASS Petitioner Through versus DELffl URBAN SHELTER IMPROVEMENT BOARD& ORS Respondents Through VvlTH + W.P.(C) 7241/2018 & CM No. 27611/2018 LATE REVTI DEVI (DECEASED) THROUGH SH VED PRAKASH Petitioner Through versus DELHI URBAN SHELTER IMPROVEMENT BOARD&ORS Respondents Through WITH + W.P.(C) 7245/2018 & CM No. 27638/2018 MUKESH ..... Petitioner Tlirough versus DELHI URBAN SHELTER IMPROVEMENT BOARD& ORS Respondents Through WITH + W.P.(C) 7250/2018 & CM No. 27683/2018 PURSHOTTAM THROUGH LR'S ^ , Petitioner Through versus: DELHI URBAN SHELTER IMPROVEMENT BOARDAND ORS. Respondents I'hrough WITH W.P. (C) 6539/2019 <£ other connected tnatteis Page I of 12 Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. + W.P.(a 7252/2018 & CM No. 27664/2018 MOHIT Petitioner Through versus DELHI LHRBAN SHELTER IMPROVEMENT BOARD & ORS Respondents ' ... Through + W.P.rd 7255/2018& CMNo. 27672/2018 NIKHIL Petitioner Through versus DELHI URBAN SHELTER IMPROVEMENT BOARD AND ORS. Respondents. Through WITH + W.P.(C) 7258/2018 & CM No. 27676/2018 SAVITmDEVI . • Petitioner Tlirough versus DELHI URBAN SHELTER IMPROVEMENT BOARD AND ORS. Respondents ThrougH WITH + W.P.(C) 7264/2018 & CM No. 27690/2018 PREMWATI DEVI THROUGH LR'S Petitioner Through versus DELHI URBAN SHELTER IMPROVEMENT BOARD AND ORS. Respondents Through I / AND + W.P.(C) 7t61/2018 & CM No. 27305/2018 RUKMANIDEVI Petitioner Through versus DELHI URBAN SHELTER IMPROVEMENT BOARD W.P. (C) 6539/2019&otherconnectedmatters Page2 of12 AND ORS. Respondents Through: Mr Kamlesh Kumar Mishra (DHCLAS) with Mr Sanjay Baniwal, Advocates for petitioner in item nos.l3, 43, 45, 46, 47, 49, 50, 53 & 59. Mr Ripu Daman Bhardwaj, Advocate for R-2/U0I in item no. 13. Mr Amish Dabas, Advocate for R-3 in item no. 13. Mr Tushar Sannu with Ms Peehu Singh, Advocates for NDMC/R-5 in item no. 13. Mr Abhay Prakash Sahay, CGSC for R-2 in item no.43, 45, 46. 47, 50, 53 &59. Ms Mini Pushkarna, Standing Counsel for DUSIB with Ms Swagata Bhuyan and Ms Shiva Pandey, Advocates in item no. 13, 43, 45, 46, 47, 49, 50, 53 & 59. Mr Mohit Agarwal and Mi" Abhishek Sharma, Advocates for R-3 in item no.45. Mr Sumit Agarwal, Advocate for R-3 in item no.46. Ms Madhu . Sudan Bhayana, Advocates for R-3 in item no.50. Mr Balendur Shekhar and Mr Rajkumar Maurya, Advocates for respondent/State of Maharashtra in item no.51. Mr Jamal Akhtar, Advocate for GNCTD/R-3 in item no.53. CORAM: HON'BLE MR. JUSTICE VIBHU BAKHRU