Delhi District Court
Simlesh Devi W/O Shri Rambeer Singh vs South Delhi Municipal Corporation on 4 December, 2020
IN THE COURT OF MS NEENA BANSAL KRISHNA
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURT, NEW DELHI.
MCD APPL Nos. 19/2016 & 20/2016
1. Simlesh Devi W/o Shri Rambeer Singh
R/o H. No. 41/C,
Near M.C.D. School,
Village Sarai Kale Khan,
New Delhi110013.
2. Rahul Chaudhary S/o Shri Sanjay Chaudhary
R/o 172/2, Molarband Village,
Jaitpur, New Delhi 110044.
3. Kunti Devi W/o Shri Sunder Chaudhary
R/o H. No. 44
Village Sarai Kale Khan
New Delhi110013
... APPELLANTS
VERSUS
1. South Delhi Municipal Corporation
Through its Commissioner
Having Office at: Dr. S.P.M. Civic Centre,
Minto Road
New Delhi 110002.
2. Deputy Commissioner
Central Zone
Lajpat Nagar,
New Delhi 110024.
...RESPONDENTS
Date of filing: 09.05.2016
First date before this court: 16.05.2016
Date of Decision: 04.12.2020
MCD APPL Nos. 19/2016 & 20/2016 Page No. 1 of 12
ORDER
1. By this common order, I shall be disposing of the above mentioned two appeals against the interim orders dated 26.04.2016 vide which the application for grant of interim injunction has been declined.
2. Facts in brief are that the appellants are the absolute owners and in possession of property bearing Khasra No. 131/53/2, 135/54 & 52/2 situated in Village Abdai Lal Dora Land of the Urbanized Sarai Kale Khan Village, New Delhi by virtue of a Sale Deed dated 05.11.2012. It is asserted that no unauthorized construction of any kind has been raised on the property in question and nothing can be termed to be against the mandate of Building Regulations for Special Areas, Unauthorized Regularized Colonies and Village Abadis, 2010,and Delhi Development Authority Notification dated 17.01.2011. It is claimed that after being hit by a severe Cyclonic Storm in the month of March, 2015, the Tin Shed structures of the appellants' property were blown off. No unauthorized construction of any kind has been undertaken. They were forced to undertake repair work of the nearly five decade old construction situated in the property in question by way of addition / alteration. This is evident from the report of the Local Commissioner dated 24.12.2003 who was appointed in Civil Suit bearing No. 340/2003. Despite this, the respondents in an arbitrary and illegal manner passed a Demolition Order dated 30.06.2015 qua the property. The respondent failed to consider that the construction in question has been in existence since prior to the inception of Delhi Municipal Corporation Act, 1957 and issued a MCD APPL Nos. 19/2016 & 20/2016 Page No. 2 of 12 demolition order without giving a hearing to the Appellant. This order was challenged before the ATMCD vide Appeal bearing No. 852/2015. The demolition order was quashed by ATMCD vide its order dated 14.01.2016 and remanded back the case with the directions to pass a speaking order within four weeks after giving due hearing to the appellants. Consequent thereto, a reply dated 03.02.2016 was submitted before the respondent but without appreciating the merits and the submissions made in the reply, the respondent made a sealing order dated 11.03.2016 and thereafter, the demolition order dated 28.03.2016.
3. The appellants aggrieved by the sealing order and demolition order filed two appeals before the learned ATMCD, who in its impugned order dated 26.04.2016 observed that the show cause notice dated 15.06.2015 and the subsequent demolition order dated 30.06.2015 mentioned that there was unauthorized construction in the property in question in the shape of the ground floor and the first floor. From the Sale Deed of the appellants dated 05.11.2012, it was evident that only 300 sq. yards was constructed out of 1875 sq. yards. The report of the Local Commissioner dated 14.12.2013 filed in Civil Suit No. 340/03 titled as Suman Chhabra Vs. Rakesh Bhan Dass also mentions that there were some structure in the said premises though the same was in dilapidated condition. However, the photographs filed by the appellants depicting the construction being carried out on the property in question do not show it to be dilapidated. Further, there was no mention of any first floor in the report of Local Commissioner. It was prima facie evident that the same MCD APPL Nos. 19/2016 & 20/2016 Page No. 3 of 12 has been constructed after the Local Commissioner submitted his report dated 14.12.2013. Moreover, the Appellants themselves had mentioned about carrying out the construction even though allegedly as repairs/ alterations in 2015. Hence, the report of the Local Commissioner itself goes against the appellants in establishing that the construction was not an old one. No other documents were filed by the appellants to show that the construction was old. Therefore, the appellants had not approached the court with clean hands and were not entitled to any discretionary relief. Hence, the application for interim stay of the impugned sealing and Demolition order in the respective appeals was dismissed vide order dated 26.04.2016. Against the two orders dated 26.04.2016, the present two appeals bearing MCD Nos. 19/16 and 20/16 have been filed before this court.
4. The basic question which has arisen in the present case is in regard to maintainability of the appeal against the interim orders vide which the stay application has been dismissed.
5. Learned counsel on behalf of the appellants has vehemently argued that Section 347D of DMC Act itself provides for appeal against the orders under Section 343 of DMC Act. The observations of the Hon'ble High Court in a reference answered in Senjil Gupta vs. North Delhi Municipal Corporation (2019) 257 DLT 674 is in respect of the interim application Order I Rule 10 CPC and not in regard to an order made under S. 343 of the Act. While any order made on any MCD APPL Nos. 19/2016 & 20/2016 Page No. 4 of 12 miscellaneous application under Code of Civil Procedure may not be amenable to appeal under S.347D of the Act but by no Rule of interpretation can it be so held for the orders made under the Act itself. It is thus vehemently argued that the present appeal is maintainable and the judgment in Senjil Gupta (supra) does not bar the appeal before this court against the interim orders.
6. Learned counsel on behalf of the respondent however has countered the contentions of the appellants' counsel by referring the judgment of Senjil Gupta (supra) wherein it is clearly observed that only those orders made under Section 343 or 347D which is "confirming, modifying, annulling" an order made or notice issued under this Act shall be maintainable. Clearly, the orders on application for interim stay are not subject to appellate jurisdiction under Section 347D of the Act.
7. I have heard the arguments on the point of maintainability of the present appeal against the order of Ld. ATMCD and have also perused the record. My observations are as under:
8. The appellants have challenged the orders vide which the application for grant of interim stay of impugned order of sealing and demolition order respectively has been dismissed.
9. The issue which arises for consideration is whether the appeal under Section 347D of the Act is maintainable against the impugned ad MCD APPL Nos. 19/2016 & 20/2016 Page No. 5 of 12 interim order declining to grant stay of the Sealing/ 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
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 MCD APPL Nos. 19/2016 & 20/2016 Page No. 6 of 12 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.
(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."
MCD APPL Nos. 19/2016 & 20/2016 Page No. 7 of 1212. 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 (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.
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 MCD APPL Nos. 19/2016 & 20/2016 Page No. 8 of 12 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 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."
13. 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". 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 MCD APPL Nos. 19/2016 & 20/2016 Page No. 9 of 12 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 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.
14. 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 was framed which 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 MCD APPL Nos. 19/2016 & 20/2016 Page No. 10 of 12 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 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.
15. From the Reference answered in Senjil Gupta (Supra), it is abundantly clear that the Appeal under Section 347D of the Act is MCD APPL Nos. 19/2016 & 20/2016 Page No. 11 of 12 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.
16. In view of above, the present appeals are not maintainable and are hereby dismissed. Trial Court Record be sent back along with a copy of this order. Appeal files be consigned to Record Room.
Announced in the open court on this 4th day of December 2020 (NEENA BANSAL KRISHNA) Principal District & Sessions Judge South East, Saket Courts New Delhi MCD APPL Nos. 19/2016 & 20/2016 Page No. 12 of 12