Raees Ahmed vs Sheikh Iqbal Ahmed And Ors.
2017 Latest Caselaw 5938 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 9392/2017
       RAEES AHMED                                        ..... Petitioner
                          Through:      Ms Zubeda Begum with Ms Sana
                                        Ansari and Ms Manisha Mehta,
                                        Advocates.

                          versus

       SHEIKH IQBAL AHMED AND ORS.                        ..... Respondents
                     Through: None.

       CORAM:
       HON'BLE MR. JUSTICE VIBHU BAKHRU
                    ORDER

       %            27.10.2017
VIBHU BAKHRU, J
CM No.38291/2017
1.     Allowed, subject to all just exceptions.
W.P.(C) 9392/2017 & CM No.38290/2017

2. The petitioner has filed the present petition, inter alia, impugning an order dated 10.07.2017 (hereafter „the impugned order‟) passed by the Competent Authority, Delhi Urban Shelter Improvement Board (hereinafter „DUSIB‟) under Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 (hereafter „the slum Act‟). By the impugned order, DUSIB has granted permission to respondent nos.1 to 3 (the applicants before the DUSIB) to initiate proceedings for eviction against the petitioner in respect of the property comprising of Balakhana of the first floor of property no.1901, Katra Qazi, Bazar Sikri Walan, Lal Kaun, Delhi-110006 (hereafter

„the Property‟).

3. Ms Zubeda Begum, learned counsel for the petitioner has assailed the impugned order on three grounds. First, she submits that the impugned order is ex facie erroneous as DUSIB had no material to establish that the petitioner was a person of means. She points out that affidavits had been filed by respondent nos.1 to 3 indicating that the petitioner was receiving interest of ₹10,000/- and had also sub let the premises and has an income of approximately ₹50,000/- per annum. It was also affirmed on behalf of respondent nos.1 to 3 that the petitioner had sub let the premises in question and was recovering rent of ₹3,000/- per month. She states that the aforesaid facts were controverted by the petitioner by filing an affidavit. However, the DUSIB has not accepted the same and proceeded to accept the averments made by respondent nos.1 to 3. She earnestly contended that DUSIB had no material before it to come to the conclusion that it did.

4. Second, she submits that respondent nos.1 to 3 are claiming to be mutawallis and under the Waqf Act, 1995 (hereafter 'the Waqf Act') they did not have any power to initiate proceedings under the Slum Act.

5. Third, she submits that in terms of Section 85 of the Waqf Act, DUSIB did not have any jurisdiction to consider the claim of respondent nos.1 to 3 as by virtue of Section 85 of the Waqf Act, no suit or legal proceedings would lie in any Civil Court, Revenue Court or any other Authority in respect of any disputed question relating to a Waqf property.

6. Insofar as the first contention is concerned, that is, that the impugned order is erroneous as having been passed without any material on record; it is seen that although the averments made by respondent nos.1 to 3 in their affidavits were denied by the petitioner, he did not produce any material to

indicate his real income. The question of petitioner‟s income was within the special knowledge of the petitioner and it was incumbent upon the petitioner to produce all relevant materials to establish that he was not having any significant earnings. Admittedly, the petitioner has failed to do so and, therefore, the DUSIB had proceeded on the basis that the petitioner was a person of means and if evicted would be able to arrange alternate accommodation. This Court finds no infirmity with this approach. Mere bald denial of the averments made by respondent nos.1 to 3, are clearly not sufficient to discharge the burden placed on the petitioner. It was incumbent upon the petitioner to produce the material to indicate his real income. Having failed to do so, the petitioner cannot now be heard to fault DUSIB's decision.

7. This court is also not persuaded to entertain the contention that mutawallis are not empowered to initiate proceedings in respect of tenanted property, as that is a defence that would be available to the petitioner as and when proceedings of eviction are instituted. The limited question before DUSIB was whether to grant permission for initiation of such proceedings or not. The limited scope of the controversy before DUSIB was whether in view of the factors as set out in Section 19(4) of the Slum Act, the permission to institute proceedings ought to be granted. The primary objective of the provisions of Section 19 of the Slum Act is to ensure that no proceedings for eviction of tenanted premises in a slum are initiated that would result in the evicted tenants relocating themselves in another slum area or would not be in the interest of slum clearance. The question whether the respondents are entitled to evict the petitioner is a matter that would be decided as and when such eviction proceedings are instituted.

8. The contention that the application under Section 19(1)(a) of the Slum Act is not maintainable before DUSIB is also unpersuasive. Before proceeding further it would be relevant to set out the relevant statutory provisions. Section 19 of the Slum Act reads as under:

"19. Proceedings for eviction of tenants not to be taken without permission of the competent authority.-(1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority,-

(a) institute, after the commencement of the Slum Areas (Improvement and Clearance), Amendment Act, 1964 (43 of 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 obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order.

(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed.

(3) On receipt of such application, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission.

(4) In granting or refusing to grant the permission under sub-section (3), the competent authority shall take into account the following factors, namely:-

(a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted;

(b) whether the eviction is in the interest of improvement and clearance of the slum area;

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

(5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant."

9. Section 85 of the Waqf Act reads as under:-

"85. Bar of jurisdiction of civil courts.- No suit or other legal proceedings shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any Waqf property or other matter which is required by or under this Act to be determined by a Tribunal."

10. It is apparent from the plain reading of Section 85 of the Waqf Act that jurisdiction of a Civil Court, Revenue Court or any other authority in respect of any dispute of question relating to Waqf property or any other matter which is required by or under the Waqf Act to be determined by a Tribunal is barred. Concededly, it is not the petitioner‟s case that there is any provision under Waqf Act which requires the Tribunal to decide the question as to grant of clearance under Section 19(1)(a) of the Act. The first part of Section 85 cannot be read disjunctively with the latter part of Section 85. Thus, the restriction on the power of a Civil Court to entertain disputes must be limited to excluding only such disputes relating to a Waqf property that are to be determined by the Tribunal constituted under Section 83 of the

Waqf Act. In the present case, the principal dispute is whether the permission or initiating proceedings should be granted. DUSIB is specifically empowered to consider the same under the Slum Act and there is no provision in the Waqf Act, which even remotely suggests that the question whether such permission is required to be granted, can be considered by the Tribunal.

11. The contention that the jurisdiction of a Civil Court or Authority is barred in respect of eviction of tenants from Waqf property appears to be erroneous. In Ramesh Gobindram (dead) through Lrs v. Sugra Humayun Mirza Waqf: (2010) 8 SCC 726, the Supreme Court had, inter alia, considered the question whether the jurisdiction of a civil court to try a suit for eviction of tenants from a Waqf property is barred and had held as under:

"25. Whenever a question arises whether "any dispute, question or other matter" relating to "any Waqf or Waqf property or other matter" falls within the jurisdiction of a civil court, the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of the civil court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. The bar of jurisdiction contained in Section 85 is in that sense much wider than that contained in Section 6(5) read with Section 7 of the Waqf Act. While the latter bars the jurisdiction of the civil court only in relation to questions specified in Section 6(1) and 7(1), the bar of jurisdiction contained in Section 85 would exclude the jurisdiction of the civil courts not only in relation to matters that specifically fall in Section 6 and 7 but also other matters required to be determined by a Tribunal under the Act. There are a host of such matters in which the Tribunal exercises original or appellate jurisdiction.

xxxx xxxx xxxx xxxx

34. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil court is raised is whether the Tribunal is under the Actor the Rules required to deal with the matter sought to be brought before the a civil court. If it is not, the jurisdiction of the civil court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the civil court would stand excluded.

35. In the cases at hand, the act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a Waqf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly Waqf property could, therefore, be filed only before the civil court and before the Tribunal."

12. The aforesaid view was also followed by the Supreme Court in a later decision in (See: Faseela M. v. Munnerul Islam Madrasa Committe and Anr: (2014) 16 SCC 38).

13. It is material to note that the controversy before DUSIB was not whether the petitioner ought to be evicted but whether permission to institute eviction proceedings ought to be granted. Thus even if it is accepted - although as noted above there is no reason to do so - that eviction proceedings cannot be instituted before a civil court, the jurisdiction of DUSIB to consider and decide an application under Section 19 of the Slum Act is, plainly, not barred.

14. More importantly, Section 19 of the Slum Act contains a non-obstante

clause and will have an overriding effect.

15. In view of the above, the petition is dismissed.

16. It is clarified that all contentions of the petitioner to resist the eviction proceedings, as and when instituted, are reserved.

VIBHU BAKHRU, J OCTOBER 27, 2017 MK

Note:- As corrected by the order dated 29.11.2017.