Delhi District Court
Abdul Kalam vs South Delhi Municipal Corporation on 19 January, 2021
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURT, NEW DELHI.
MCD APPL No. 22/2016
Abdul Kalam
S/o Late Shri Abdul Majeed
R/o A50, Noor Nagar Extn., Johri Farm,
Okhla, New Delhi110025.
... APPELLANT
VERSUS
South Delhi Municipal Corporation
Central Zone, South Lajpat Nagar,
New Delhi
...RESPONDENT
Date of filing: 25.05.2016
First date before this court: 26.05.2016
Date of Decision: 19.01.2021
ORDER
1. This appeal under Section 347D of the Delhi Municipal Corporation Act, 1957 has been filed against the order dated 17.05.2016 vide which the application for interim stay of the demolition order filed by the appellant, has been dismissed.
2. Facts in brief are that appellant is owner and in possession of one property bearing No. A50, Noor Nagar Extn., Johri Farm, Okhla, New Delhi110025 which was originally purchased in the name of Late Smt. Batool Bi, mother of the appellant by his father and admeasured 200 MCD APPL No. 22/2016 Page No. 1 of 12 sq. yards. Smt. Batool Bi during her lifetime made an oral gift of the property to father of the appellant and also gave him full authority to deal with the property. Smt. Batool Bi expired on 10.04.1991. Thereafter, Shri Abdul Majeed, father of the appellant developed the suit property piecemeal upto 4th floor. It is claimed that as per the norms the father of the appellant left about 3050 square yards of his land in Gali / road at the time of development of the property because of which the size of the property was reduced to about 150 to 160 sq. yards. The father of the appellant transferred 100 sq. yards from the said property to his elder son Md. Saleem vide documents dated 20.01.1997 and the remaining 50 sq. yards was given to the appellant herein namely Abdul Kalam. However, the property continues to be in the name of Smt. Batool Bi in the revenue / municipal records. The property was also surveyed by the House Tax Department and notice of demand under Section 154(1) dated 07.01.2005 to the tune of Rs.1,46,750/ on the basis of unit area was issued in the name of mother of the appellant since the tax could not be deposited. A Show Cause Notice dated 07.02.2005 under Section 155/156/157 was also issued in respect of property in question. Subsequently, pursuant to a family settlement the brother of appellant transferred his 100 sq. yards in favour of the appellant vide documents dated 03.03.2014. However, the dispute between the brothers continued in respect of shop No. 1001, Pan Mandi, Sadar Bazar, Delhi.
3. It is asserted that one Mohd. Anas S/o Mohd. Ayyub who is the real cousin brother i.e. son of mama of appellant at the behest of MCD APPL No. 22/2016 Page No. 2 of 12 brother of appellant filed a false complaint in the MCD alleging that appellant had carried out illegal construction in the property in question in the year 2016. On the suggestion of MCD officials, the appellant filed an application for regularization of building and also filed all the relevant documents showing that the construction had been carried out much prior to 2016. The said documents are the copies of electricity bills in the name of parents of appellant; copy of electricity bill in the name of tenant; copy of I card and Aadhar card; copy of Agreement to Sell in favour of one Zahoor Ahmed; copy of site plan and copies of photographs of the property in question. However, the respondent mala fidely rejected the regularization only on the ground that the property lies in an unauthorized colony.
4. Thereafter, MCD without serving any notice to the appellant demolished some part of the top floor on 06.04.2016 and also sealed the top floor without giving any Show Cause Notice and intimation. The appellant had filed separate appeals in regard to the sealing and rejection of regularization before the MCD Tribunal. Again on 25.04.2016, MCD demolished some more part of the property and sealed it. The impugned order was challenged before the learned ATMCD and an application was made seeking interim relief for directing the respondents against carrying out any further demolition in the suit property and for desealing of the top floor.
MCD APPL No. 22/2016 Page No. 3 of 125. The application for interim relief was opposed by learned counsel for the respondent who had argued that the unauthorized construction on the third floor of the property in question had been carried out by the appellant in the year 2014 in respect of which SHO, PS Jamia Nagar had written a letter on 08.05.2014 to Deputy Commissioner, MCD and a complaint along with photographs was also sent by the SHO to Deputy Commissioner, MCD. Subsequently, further construction was carried out upto 4th floor. It was further stated that the sealing order was not of 25.05.2014 but of 25.11.2014. Therefore, the property was asserted to be not protected by NCT of Delhi Laws (Special Provision) (Second Amendment) Act 2014. It was asserted that the appellant had not approached the court with clean hands and was not entitled to any relief.
6. The learned Appellate Tribunal, MCD considered the rival contentions of the parties and observed that the appellant had failed to prove that the property in question was an old property or was protected under the NCT of Delhi Laws (Special Provision) (Second Amendment) Act, 2014 and thus declined to grant interim stay vide impugned order dated 17.05.2016. Aggrieved by the said order, the present appeal has been preferred.
7. At the outset, the arguments have been heard on the maintainability of the present appeal arising out of an interim order. Learned counsel for appellant had taken many dates for filing a reference before the Hon'ble High Court of Delhi but finally the arguments on MCD APPL No. 22/2016 Page No. 4 of 12 maintainability of the appeal were heard and the written arguments were also filed on behalf of the appellant.
8. I have heard the arguments and perused the record. My observations are as under:
9. The appellant has challenged the order vide which the application for grant of interim stay of demolition order has been dismissed. The issue which arises for consideration is whether the appeal under Section 347D of the Act is maintainable against the impugned ad interim order declining to grant stay of the demolition when the appeal is still pending before the Appellate Tribunal.
10. The aspect of maintainability of appeal against interim orders was considered by the Hon'ble High Court of Delhi in the case of Senjil Gupta (Supra) where the reference made by the learned District and Sessions Judge was answered. The questions of law read as under:
"1. Whether the Administrator (here in this case the District and Sessions Judge (Hqs.) Tis Hazari Court, Delhi) has the power to hear appeals against order of the Appellate Tribunal, Municipal Corporation of Delhi (ATMCD) restricted only to the orders of the Appellate Tribunal by which the orders made or notices issued under the Delhi Municipal Corporation Act, 1957 have been either confirmed or modified or annulled as provided under Section 347D of the Delhi Municipal Act, 1957? Or MCD APPL No. 22/2016 Page No. 5 of 12
2. Whether the Administrator (here in this case the District and Sessions Judge (Hqs.) Tis Hazari Court), Delhi is empowered to hear appeals as a regular Appellate Court under the Code of Civil Procedure, 1908 against all orders passed by the Appellate Tribunal, Municipal Corporation of Delhi in the appeals pending before the said Tribunal passed during the course of hearing, the appeals including the impugned order by which the application under Order XII Rule 10 read with Order I Rule 10 CPC filed by the applicant / appellant was dismissed, as observed by this court in W.P. (C) 9244/2015 decided on September 14, 2016."
11. Section 347D reads as under:
(1) An appeal shall lie to the Administrator against an order of the Appellate Tribunal, made in an appeal under Section 343 or Section 347B, confirming, modifying or annulling an order made or notice issued under this Act.
(2) The provisions of subsections (2) and (3) of section 347B and section 347C and the rules made thereunder, shall, so far as may be, apply to the filing and disposal of an appeal under this Section as they apply to the filing and disposal of an appeal under those sections.
MCD APPL No. 22/2016 Page No. 6 of 12(3) An order of the Administrator on an appeal under this section, and subject only to such order, an order of the Appellate Tribunal under Section 347B, and subject to such orders of the Administrator or an Appellate Tribunal, an order or notice referred to in subsection (1) of that section, shall be final."
The reference question No.1 was answered thus in Senjil (Supra) after referring to the above mentioned provisions.
"Further, I am of the view that sub section 1 of Section 347D has to be read as a whole to know the correct purport / intention of the provision. The words "An appeal shall lie to the Administrator (District & Sessions Judge) against an order of the Appellate Tribunal made in appeal under Section 343 or Section 347B" are followed by the words "confirming, modifying or annulling an order made or notice issued under this Act". So, it necessary follows, it is that order which is passed by the Appellate Tribunal, in an appeal under Section 343 or 347B, confirming, modifying or annulling the order made or notice issued under the Act, which can be subject matter of appeal before the District & Sessions Judge. In the absence of any provision, the District and Sessions Judge (Hqs.) cannot bestow upon himself a power which is not vested in him by a Statute. It is also a MCD APPL No. 22/2016 Page No. 7 of 12 settled position of law that any act liable to be done in a particular matter has to be done in that matter only and not otherwise. In the absence of any appellate power vested with District & Sessions Judge (HQs) by the Act, no appeal shall lie. In this regard, I may refer to the following observation of the Supreme Court in AIR 1979 SC 1250 Munshi Ram and Ors. v. Municipal Committee Chheharta."
12. Hon'ble High Court thus, observed that Clause (1) of Section 347D provides that an appeal against the order of the Appellate Tribunal made under Section 343 or 347B which is "confirming, modifying, annulling an order made or notice issued under this Act shall be maintainable".
13. It was argued that S. 347D also mentions about orders made under S. 343 of the Act. The impugned order is under S.343 against which appeal is specifically provided under S.347 and thus, the present appeal against the interim relief is maintainable.
14. Section 343 of the Act provides for Order of Demolition and Stoppage of Buildings and Works in certain cases and appeals. Sub Rule (1) empowers the Commissioner to make demolition orders or stoppage of buildings and works in certain cases. Sub Clause (2) provides that an appeal may be preferred against the order of demolition of the erection of works to which it relates, of the Commissioner made under Sub Section MCD APPL No. 22/2016 Page No. 8 of 12 (1) to the Appellate Tribunal. Sub Clause (3) further provides that in an appeal preferred before the Appellate Tribunal under Sub Section (2), the Appellate Tribunal may stay the enforcement of that order on such terms if any and for such period as it may think fit. Section 343 (3) therefore specifically empower the Appellate Tribunal to make interim orders as may be deemed appropriate till the final disposal of the appeal. However, right to file appeal against any order so made shall be strictly governed by S.347-D of the Act. Even though Section 343 (3) specifically empowers the Appellate Tribunal to make interim orders of grant to stay till the disposal of appeal but Section 347D only talks of such orders of the Appellate Tribunal which are confirming, modifying or annulling; it does not provide for any appeal against any interim orders that may be made by the Appellate Tribunal. Had the legislature intended any appeal to be maintainable against the interim orders that may be made by the Appellate Tribunal there was nothing to prevent the legislature from specifically providing for an appeal against the interim orders. The words of a statute thus, have to be interpreted according to their ordinary meaning and cannot be stretched to include what has not been specifically provided for. In the absence of any provision for appeal against interim orders the court cannot assume the powers. A reference was also made to Satheedevi vs. Prasanna (2010) 5 SCC 622 wherein the Apex Court had observed that the words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to MCD APPL No. 22/2016 Page No. 9 of 12 the policy or object of the Act can legitimately arise. It was further observed that the other important rule of interpretation is that the Court cannot rewrite, recast or reframe the legislation because it has no power to do so.
15. Ld. Counsel for the appellant had vehemently argued that the above observations were limited to the orders made on miscellaneous applications under Code of Civil Procedure and not to the orders made under the Act. In this regard the reference question No.2 framed in Senjil Gupta (Supra) was answered thus:
"A perusal of Section 343 and Section 347B would reveal that in so far as an order under Section 343 is concerned, the same is relatable to an order of demolition and stoppage of buildings and works in certain cases. Similarly, Section 347B relates to certain orders made or notice issued under the Act. The same are relatable to Sections 313, 314, 315(1), 317(2), Sections 334, 336, 337 and 338 etc. Nowhere the sections refer to an order passed in an application filed under Order XXII Rules 10 and / or Order 1 Rule 10 CPC read with Section 151 CPC. So, it necessarily follows that in the absence of the said provisions of CPC being referred to either in Section 343 or in Section 347B, an appeal before the District and Sessions Judge against an order dated June 5, 2015, which is an order under Order XXII Rule 10 read Section Order 1 Rule 10 CPC shall not lie. In other words MCD APPL No. 22/2016 Page No. 10 of 12 the appeal to the District and Sessions Judge under Section 347D of the Act encompasses in itself only orders passed under two provisions of the Act, i.e., Sections 343 and 347B and not orders passed under Order XXII Rule 10 read with Order I Rule 10 CPC or any interlocutory order. No order in an application / petition other than under Sections 343 or 347B can be a subject matter of an appeal before the appellate authority, i.e., District and Sessions Judge (Hqs.) Tis Hazari Courts, Delhi.
16. From the Reference answered in Senjil Gupta (Supra), it is abundantly clear that the Appeal under Section 347D of the Act is maintainable only against those orders under Section 343 of the Act confirming, annulling or modifying an order or notice given under the Act. The impugned order is only an interim order and that too whereby the Ld. Appellate Tribunal MCD has declined to give interim protection till the matter is heard on merits. S.343 (3) only talks about grant of stay on terms till disposal of Appeal and not about refusal to grant stay. It is not an order confirming, modifying or annulling the order/notice of the Municipal Corporation of Delhi. Significantly S.343(1) deals with demolition orders and any order made under this section would clearly be a subject matter of Appeal but not the interim orders that may be made under S.343(3) or any other interim order.
MCD APPL No. 22/2016 Page No. 11 of 1217. In view of above, the present appeal is not maintainable and is hereby dismissed. A copy of this order be sent to learned Appellate Tribunal, MCD. Appeal file be consigned to Record Room.
Digitally signed by NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2021.01.21
Announced in the open court on KRISHNA 13:26:52 +0530
this 19th day of January 2021 (NEENA BANSAL KRISHNA)
Principal District & Sessions Judge
South East, Saket Courts
New Delhi
MCD APPL No. 22/2016 Page No. 12 of 12