WPMS/1732/2022
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 IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
        ON THE 3RDDAY OF JANUARY, 2023
                              BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       Writ Petition (M/S) No. 1732 of 2022

BETWEEN:
Krishan Kumar Sharma.                                   ...Petitioner
     (By Mr. Kshitij Sah, learned counsel for the petitioner)


AND:
Dr. Narayan Dutt Mishra& another.                       ...Respondents
     (By Mr. Nikhil Singhal, learned counsel for the respondents)



                            JUDGMENT

Petitioner is tenant in respect of a building situate at Jwalapur, District Haridwar. Respondents sought release of the said building under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short 'Act No. 13 of 1972"), by moving an application before Prescribed Authority.

2. Petitioner filed objection/written statement to the release application. He also filed an application under Section 34(a) of U.P. Act No. 13 of 1972, seeking permission to cross-examine the landlords and their witnesses. In the said application, petitioner contended that the landlords have suppressed the information about their immovable property and also one clinic owned by respondent no. 1, at Lucknow. It was further contended that since the building in question is very old, therefore, substantial amount of

money would be needed for its re-construction, however, the funds available with the landlords have not been disclosed, therefore, truth can only come out when he is permitted to cross-examine landlords and their witnesses. Prescribed Authority rejected the said application by holding that the issue of availability of funds for re-construction of building is wholly irrelevant and tenant can rebut the statement of landlord and their witnesses by filing reply affidavit. Feeling aggrieved by order passed by Prescribed Authority on 01.07.2022, petitioner has approached this Court.

3. Learned counsel for petitioner submits that the tenant is entitled to cross-examine the witnesses so as to bring out the truth, which cannot be countered through reply affidavit. He further submits that learned Prescribed Authority erred in rejecting petitioner's application for cross-examination, without considering the grounds made therefor. Section 34 of U.P. Act No. 13 of 1972 is reproduced below:-

"34. Powers of various authorities and procedure to be followed by them.--(1) The District Magistrate, the prescribed authority or any 75[appellate or revising authority] shall for the purposes of holding any inquiry or hearing 75[any appeal or revision] under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters namely,--

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) receiving evidence on affidavits;

(c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation;

(d) requiring the discovery and production of documents;

(e) awarding, subject to any rules made in that behalf, costs or special costs to any parts or requiring security for costs from any party;

(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith;

(g) any other matter which may be prescribed.

(2) The District Magistrate, the prescribed authority or [appellate or revising authority], while holding an inquiry or hearing [any appeal or revision] under this Act, shall be deemed to be a Civil Court within the meaning of 77[Sections 345 and 346 of Code of Criminal Procedure, 1973] and any proceeding before him or it to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (Act No. XLV of 1860).

(3) Where any costs or other sum of money awarded under this Act by the District Magistrate or the prescribed authority or 76[the appellate or revisional authority] remains unpaid, he or it may issue a certificate of recovery in respect thereof in the prescribed form, and any person in whose favour such certificate is issued may apply to the Court of Small Causes having jurisdiction under the Provincial Small Cause Courts Act, 1887 (Act No. IX of 1887) for recovery of the amount specified in the certificate. Such court shall thereupon execute the certificate or cause the same to be executed in the same manner and by the same procedure as if it were a decree for payment of money made by itself in a suit.

(4) Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record:--

(a) in the case of the landlord or tenant, his heirs or legal representatives;

(b) in the case of unauthorised occupant, any person claiming under him found in occupation of the building.

(5) Where any person has been evicted from a building in pursuance of any order of the District Magistrate or the prescribed authority or made on appeal under this Act, the District Magistrate or the prescribed authority, as the case may be, may after

service or publication of a notice in that behalf on such persons and in such manner as may be prescribed, remove or cause to be removed or dispose of, in such manner as may be prescribed, any specific property remaining on such building.

(6) Affidavits to be filed in any proceeding under this Act shall be made in the same manner and conform to the same requirements as affidavits filed under the Code of Civil Procedure, 1908 (Act No. V of 1908), and may be verified by any officer or other person appointed by the High Court under clause (b) or by an officer appointed by any other court under clause (c) of Section 139 of the said Code.

(7) The District Magistrate, the prescribed authority or [the appellate or revisional authority] shall record reasons for every order made under this Act.

(8) For the purposes of any proceedings under this Act and for purposes connected therewith the said authorities shall have such other powers and [shall follow such procedure, principles of proof, rules of limitation and guiding principles as may be prescribed].

4. A perusal of Section 34 of U.P. Act No. 13 of 1972 reveals that it confers certain powers upon the Prescribed Authority, which are available to a Civil Court under the Code of Civil Procedure, including the power of summoning and enforcing the attendance of any person and examining him on oath and receiving evidence on affidavits. Thus, the Prescribed Authority in an appropriate case can permit a party to cross- examine the witnesses of the other party, however, cross-examination cannot be claimed as a matter of right.

5. Proceedings under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 are summary in nature. Rule 15(3) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 provides that every application for release filed under

Section 21(1) shall, as far as possible, be decided within two months from the date of its presentation. The legislature did not provide that oral evidence is to be adduced in support of the case, as contemplated under Order XVIII, Rule 4 C.P.C. but the facts are to be proved on affidavits. If unnecessary cross-examination is permitted, that will only delay the disposal of cases, although, Prescribed Authority in an appropriate case may permit cross-examination of witnesses. The necessity for cross-examination depends upon the facts and circumstances of each case. It is not that in every case once the application is filed for cross-examination, it has to be permitted as a matter of course. It is true that veracity of averments made in the affidavits can be tested by cross-examination, but unless it is established that veracity of facts stated in an affidavit is necessary to be tested by cross-examination, prayer for cross examination cannot be granted. The party must give reasons as to which particular case and under what circumstances, such cross-examination is necessary. In the context of each P.A. Case, the purpose of enacting Act No. 13 of 1972 has to be taken into account, while permitting a party to cross-examine the deponent of an affidavit.

6. A coordinate Bench of this Court in WPMS No. 172 of 2007, Raj Kumar Vs Om Prakash Sharma & others has held as under:-

"6. At the outset, it may be mentioned that from a reading of Section 34 of the Act read with Rule 22 of the Rules framed there-under, it is evident that the Prescribed Authority has to follow the procedure prescribed under Section 34 of the Act as also Rule 22 of the Rules framed under the said Act. The applications under Section 21 of the Act have to be decided on the basis of evidence led by the parties by filing affidavits. Oral evidence is not contemplated under these provisions. No doubt,

power has been given to the authorities to summon and enforce attendance of any person and to examine him on oath. The intention of the legislative was that the matters pending before various authorities under the said Act should only be decided on the basis of affidavits filed in evidence by the rival parties. Section 34(1)(b) of the Act confers power on the authorities concerned to receive evidence on affidavits and the principle, which is applicable under Order XIX, Rule 1 of the Code of Civil Procedure, can be made applicable, which empowers the Court to summon a deponent of an affidavit for his cross-examination. The authorities have power to permit any party to crossexamine the deponent of the affidavit, but the exercise of this power should be on the principle as laid down under Order 19, Rule 1 of the Code of civil Procedure as amended by U.P. Act No. 57 of 1976. Thus, the Court has discretion to permit for cross-examination when such cross-examination is necessary for proper adjudication of the matter in dispute. If a party intends to cross examine, he has to give necessary facts in the application as to why the cross-examination is necessary. Cross-examination cannot be ordered as a matter of course. It is for the Prescribed Authority to give reasons either for allowing or refusing the cross-examination. It can thus be inferred that discretion to permit cross examination of deponent may be exercised when it is not possible for the party to contradict the fact by filing evidence on affidavit. I am fortified in my view by the Division Bench judgment of the Allahabad High Court in the case of Khushi Ram Dedwal v.

Additional Judge, Small Causes Court/Prescribed Authority, Meerut and Ors. 1997 (2) A.R.C. 674 wherein it has been observed that "If a party wants to cross-examine, he has to give the necessary facts in the application as to why the cross-examination is necessary. The Prescribed Authority will give the reasons either for allowing or refusing the cross- examination. The reasons disclosed in the order of the Prescribed Authority will show whether he acted fairly or not. Considering every aspect of the matter the authority under the provisions of U.P. Act No. 13 of 1972 can permit the cross-examination of a deponent of an affidavit only when it is necessary in the case." It was further observed in that "the legislature did not provide that oral evidence to be adduced in support of the case as contemplated under O. XVIII, Rule 4 Code of civil Procedure But the facts are to be proved on affidavits. If unnecessary cross-examination is permitted, that will only hamper the expeditious disposal of the cases." In the case of Smt. Gulaicha Devi v. Prescribed Authority (Munsif) Basti and Anr. 1989 (1) ARC 407 it has been held that evidence in the matter of release application has to be filed in the shape of affidavit and normally the Prescribed Authority should not permit cross-examination of

deponent. Such power to permit the cross examination should be exercised in exceptional cases only and in such case, Prescribed Authority is required to give reasons. The Allahabad High Court in the Case of Smt. Fahmida Shoeb (Dead) v. Kanhaiya Lal (dead) and Anr. 2005 (61) A.L.R. 310 has held that it is a condition precedent that while allowing the application for cross examination, it is incumbent upon the Prescribed Authority to point out in the order exceptional circumstances which are necessary for such permission.

7. In the case at hand, the copy of application under Section 34 read with Rule 22 of the Rules framed under the U.P. Act No. 13 of 1972 and Order 19, Rule 1 Code of civil Procedure has been annexed as Annexure No. 3 to the writ petition. In this application the Petitioner, the main contention of the tenant is that the witnesses have not disclosed material facts especially the fact that the Applicant- landlords have released shop in another matter. It has also been contended that the landlords' witness Om Prakash has not given the details of assets and income in the affidavits. The acquaintance of the witnesses Rameshwar and Balkishan with the landlords has not been disclosed in the affidavits by the said witnesses. The learned Prescribed Authority in his impugned order has dealt with all the aspects and material factual position of the case came to the conclusion that the Petitioner-Opposite Party has not set out concrete and satisfactory reasons so as to entitle him to cross-examine the witnesses. The Prescribed Authority has also observed that it is open to the Petitioner-Opposite Party to controvert the statements on oath given by the landlords' witnesses by filing affidavits in rebuttal. The Prescribed Authority has not committed any manifest error by not allowing the cross-examination of the deponents of affidavits to the Petitioner- tenant. The Prescribed Authority has recorded reasons for refusing the permission to cross- examine the deponents in so many words in the impugned order. Apart from above, it is significant to mention here that the primary objective of the U.P. Act No. 13 of 1972 is expeditious disposal of the cases. I do not find any perversity or any manifest error of law in the order dated 1-3-2007 passed by the Prescribed Authority in rejecting the application, paper No. 59-C, moved by the Petitioner for permission to cross-examine the deponents."

7. Learned Prescribed Authority has given valid reasons for rejecting petitioner's application. Petitioner is yet to file his reply affidavit, therefore, he can rebut the statement made in the affidavit filed by landlord and their witnesses. Learned Prescribed Authority is

justified in observing that the question of availability of funds with the landlord is not germane for deciding an application under Section 21(1) (a) of U.P. Act No. 13 of 1972.

8. Thus, this Court does not find any reason to interfere with the impugned order while exercising power under Article 227 of the Constitution.

9 The writ petition fails and is dismissed.

(MANOJ KUMAR TIWARI, J.) PN