Delhi District Court
Shri Shanmugananda Welfare ... vs South Delhi Municipal Corporation on 26 September, 2020
IN THE COURT OF SHRI DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
APPELLATE AUTHORITY
NEW DELHI
In the matter of :
MCD Appeal No.11/2017
Shri Shanmugananda Welfare Association
Having office at
Khasra No.53/13, 14, 17, 18 & 26
Tehsil & Village Mehrauli
New Delhi110070
Behind Liver Hospital
D2, Kishan Garh
Vasant Kunj, New Delhi. .....Appellant
Versus
South Delhi Municipal Corporation
Through its Commissioner
Citi Civic Centre, Minto Road
New Delhi. .....Respondent
Date of filing : 22.12.2017
Date of arguments : 16.09.2020
Date of judgment : 26.09.2020
JUDGMENT
1. Vide this judgment, I propose to dispose of the appeal filed u/S 347D of The Delhi Municipal Corporation Act ("DMC Act" in short) challenging the impugned order dated 21.12.2017 whereby the MCD Appeal No.11/2017 Page No. 1 of 12 Ld.Appellate Tribunal, MCD("Ld.ATMCD" in short) vacated the interim stay on account of conduct of the appellant.
2. In backdrop, the brief facts are that the appellant had filed an appeal bearing No.1202/ATMCD/2015 before the Ld.ATMCD whereby the demolition order passed by the South Delhi Municipal Corporation ("SDMC" in short) was challenged in respect of Flats No.189 to 198 constructed at the property falling in Khasra No.53/13,14, 17, 18 & 26, Tehsil & Village Mehrauli, New Delhi 110070 behind Liver Hospital, D2, Kishan Garh, Vasant Kunj, New Delhi. It has been submitted that the appeal was filed before Ld.ATMCD apprehending the demolition of aforesaid flats and the Ld.ATMCD vide order dated 23.12.2015 directed the parties to maintain status quo in respect of the property in question falling in Khasra No.53/13, 14, 17, 18 and 26, Tehsil and Village Mehrauli, New Delhi17 behind Liver Hospital D2, Kishan Garh, New Delhi. It is pertinent to mention here that this order of status quo was passed on the first date when the fresh appeal was filed. The appellant has alleged that during pendency of the demolition appeal, the respondent also sealed flats against which an appeal bearing No.741/ATMCD/2016 was filed before Ld.ATMCD and is pending adjudication. It has been submitted that on account of error of information instead of mentioning details of two flats which were sealed, details of all the ten flats was mentioned under the belief that MCD Appeal No.11/2017 Page No. 2 of 12 all the ten flats have been sealed by the respondent. Ld.ATMCD vide order dated 12.04.2017 directed the respondent to temporary deseal the flats so as to enable appellant to file affidavit alongwith measurement and photographs of the flats before the Tribunal. The appellant made a statement before the Tribunal that flats have not been desealed and as such measurement and photographs could not be taken. Ld.ATMCD again directed the SDMC vide order dated 04.08.2017 to temporary deseal the flats and file status report and the matter was adjourned to 21.12.2017. On 21.12.2017 when the matter was taken up for hearing by the Ld.ATMCD, SDMC filed a status report as regards property desealed on 28.04.2017 and it was clarified that the property quoted in the orders dated 04.08.2017 was not sealed (as half portion of second floor and third floor situated on right side of the property was sealed by the department on 10.06.2016). The status report dated 20.12.2017 filed by SDMC is reproduced as under:
"It is submitted that as regards property desealed on 28.04.2017, it is clarified that the property quoted in the orders dated 04.08.2017 was not sealed (as half portion of second floor and third floor situated on right side of the property was sealed by the department on 10.06.2016).
Further, as directed, the site has been inspected in the presence of the Appellant. It was found that the property at site comprises of Ground to Third Floor (with stilt) and MCD Appeal No.11/2017 Page No. 3 of 12 is residentially occupied. The measurements of existing construction have been taken at site, and a sketch has accordingly been drawn, which is annexed herewith as AnnexureA. The photographs of the site are also annexed herewith as AnnexureB."
Ld.ATMCD also noted that the property at site comprises of Ground to Third Floor (with stilt) and is residentially occupied. Ld. ATMCD also observed that the appellant created a false impression that flats are lying sealed due to which an order was passed by the Tribunal to deseal the tower on 12.04.2017 for inspection and then directed the respondent to carry out the inspection instead of appellant. Ld.ATMCD further noted that the appellant mislead the Tribunal for not to comply the orders and therefore, taking into account the conduct of the appellant, the interim stay granted qua the flats which were not sealed by the respondent was vacated. Ld. ATMCD further directed the appellant to also file an affidavit of the existing construction of the flats which are lying unsealed within ten days and at the same time directed the respondent to file status report of the existing construction alongwith site plan and photographs of the flats which are lying sealed. The matter was thereafter adjourned to 12.01.2018. Admittedly, the matter is still pending for final adjudication before Ld. ATMCD.
3. The appellant aggrieved by the impugned order has filed the present appeal challenging the impugned order on the ground that MCD Appeal No.11/2017 Page No. 4 of 12 the Ld.ATMCD has passed the impugned order against all canons of justice, equity and proprietary. It has been submitted that there was no deliberate concealment or misrepresentation by the appellant society. The mistake occurred was unintentional, out of omission and inadvertence. It has further been submitted that in the absence of interim protection, the respondent may demolish the flats which would make the occupants of the flats without roof over their head. It has been submitted that Ld.ATMCD is yet to decide the legal sanctity of the alleged show cause notice and demolition order in respect of the flats in question.
4. Notice of the appeal was issued to respondent SDMC. The respondent has filed detailed reply to the appeal and took a preliminary objection that the present appeal is false, frivolous, malafide and is liable to be rejected outrightly. The respondent has strongly denied the other averments taken by the appellant in the appeal.
5. Both the parties have also filed the written submissions on record. I have heard Sh.Salman Khurshid, Ld.Senior Advocate alongwith Sh.Rohit Jain, Ld.Counsel for the appellant and Sh.Shashank Vaccher, Ld.Counsel for the respondent. I have also gone through the record carefully.
6. Before going into the merits of the case, I consider that it is necessary to examine whether the present appeal is maintainable in the present form. It is pertinent to mention here that upon filing of the MCD Appeal No.11/2017 Page No. 5 of 12 appeal my Ld.Predecessor was pleased to stay the operation of the impugned order dated 21.12.2017 till the next date of hearing which was then continued from day to day. Section 343 DMC Act makes a provision of passing an order of demolition and stoppage of buildings and works in certain cases and appeal. Section 343 sub section (2) DMC Act provides that against order of demolition and stoppage of buildings and works passed by Commissioner, the parties may prefer an appeal to the Appellate Tribunal and Appellate Tribunal has been conferred powers u/S 343 (3) DMC Act to stay the enforcement of any such order. Section 347A DMC Act provides about constitution of an Appellate Tribunal for deciding appeals preferred u/S 343 or 347B DMC Act. Section 347D DMC Act provides that an appeal shall lie against an order of the Appellate Tribunal, made in an appeal u/S 343 or u/S 347B, confirming, modifying or annulling an order made or notice issued under this Act. It is pertinent to mention here that Section 347B DMC Act provides an appeal to be filed against certain orders or notices issued under the Act. The perusal of Section 347B DMC Act would indicate that an appeal is maintainable only against the following orders made or notices issued under this Act : "347B. Appeals against certain orders or notices issued under the Act.--(1) Any person aggrieved by any of the following orders made or notices issued under this Act, may prefer an appeal against such order or notice to the Appellate Tribunal, namely: MCD Appeal No.11/2017 Page No. 6 of 12
(a) an order according or disallowing sanction to a layout plan under section 313;
(b) an order directing the alteration or demolition of any street under section 314;
(c) a notice under subsection (1) of section 315;
(d) a notice under subsection (2) of section 317;
(e) an order directing the disposal of things removed under Chapter XV or seized under section 344, or an order rejecting the claim of any person for the balance of the proceeds of sale of things so disposed of;
(f) an order sanctioning or refusing to sanction the erection of any building or the execution of any work under section 336;
(g) an order withholding sanction under the proviso to sub section (1) of section 337;
(h) an order cancelling a sanction under section 338;
(i) an order requiring the rounding off, splaying or cutting off the height of a building intended to be erected, or for the acquisition of any portion of a site, under section 339;
(j) an order disallowing the erection of any building or the execution of any work under section 340;
(k) an order requiring the stoppage of any erection or work under section 344;
(l) an order requiring the alteration of any building or work under section 345;
MCD Appeal No.11/2017 Page No. 7 of 12(m) an order directing the sealing of unauthorised constructions under section 345A;
(n) an order refusing to grant permission under subsection (2) of section 346;
(o) an order granting or refusing permission under section 347;
(p) any such other order or notice relating to or arising out of planned development under the provisions of this Act as may be prescribed by rules. "
7. Thus, a conjoint reading of Section 343 and Section 347B DMC Act would indicate that an appeal can only lie against an order of Appellate Tribunal of demolition and stoppage of buildings and works and the grounds mentioned in Section 347B DMC Act. The scope of jurisdiction of the court of District & Sessions Judge against an order of Appellate Tribunal came before the Hon'ble Delhi High Court upon the reference made by District & Sessions Judge(HQ) in Senjil Gupta and Ors. Vs North Delhi Municipal Corporation and Ors., 2019 II AD(Delhi) 153. In that case, the Hon'ble Delhi High court pleased to formulate two questions of law: "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 MCD Appeal No.11/2017 Page No. 8 of 12 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 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."
Hon'ble Delhi High Court after taking into account the entire legal position as well, the judgment of the Hon'ble Supreme Court in Amrik Singh Lyallpuri Vs Union of India and Ors.,(2011) 6 SCC 535) interalia held that :
"11. 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 MCD Appeal No.11/2017 Page No. 9 of 12 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."
Hon'ble Delhi High Court also relied upon judgments of Hon'ble Supreme Court in Shiv Shakti Cooperative Housing Society Vs Swaraj Developers, AIR 2003 SC 2434, Union of India and another Vs Hansoli Devi and others, 2002(7) SCC 273 and Satheedevi Vs Prasanna, (2010) 5 SCC 622. Hon'ble Delhi High Court concluded that an appeal against an order of Appellate Tribunal shall only be maintainable against an order/notices issued u/S 343 DMC Act or u/S MCD Appeal No.11/2017 Page No. 10 of 12 347B DMC Act. It is pertinent to mention here that in Senjil Gupta & Ors.'s case(Supra), Delhi High Court was pleased to held that an appeal to the Ld.District & Sessions Judge u/S 347B DMC 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.
8. In the present case, it is an admitted position that the appeal is still pending adjudication before Ld.ATMCD. Ld.ATMCD vide order dated 21.12.2017 only vacated the order of status quo. The perusal of record shows that order dated 23.12.2015 granting order of status quo was on the day when appeal was filed. Thus, the main appeal is still pending before the Ld.ATMCD. The order of vacating the status quo was passed taking into account the conduct of the appellant and it is certainly not on the merits of the case, and thus falls into the category of interlocutory order. The jurisdiction of the court of District & Sessions Judge has been specifically laid down in the legislature itself and has further been clarified by the Hon'ble Delhi High Court in Senjil Gupta & Ors.'s case(Supra). I consider that the legislature in its wisdom has intentionally excluded the challenging the order of interlocutory order keeping in view in mind to ensure that the court of District & Sessions Judge does not become an ordinary court of appeal as provided under the CPC. It is pertinent to mention here MCD Appeal No.11/2017 Page No. 11 of 12 that u/s 347D, appeal against an order of Appellate Tribunal shall lie only if the Appellate Tribunal has confirmed, modified or annulled an order made u/s 343 or 347B of the DMC Act. In the present case, the impugned order has neither confirmed nor modified nor annulled the alleged show cause notice or the demolition order. It is also relevant to note that the appeal against the demolition order is still pending at Ld. ATMCD and, therefore, this Court cannot give any finding as to the legality of such order. It is also pertinent to mention here that even Section 96 of CPC, 1908 provides appeal from the original decree or in certain categories as provided u/s 104 CPC, 1908. In all other cases, only the revision is maintainable before the Hon'ble High Court u/s 115 CPC. I consider that in any case the impugned order dated 21.12.2017 cannot be the subject matter of an appeal. Thus, I hold that the present appeal in the present form is not maintainable. Hence, the appeal is dismissed. However, Ld.ATMCD is directed to decide the appeal on merits within two weeks. Parties are directed to appear before Ld.ATMCD on 30.09.2020.
9. With these observations, the appeal stands disposed off.
10. Appeal file be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2020.09.26
SHARMA 18:35:42 +0530
Announced through electronic (DINESH KUMAR SHARMA) mode on 26.09.2020 Principal District & Sessions Judge/ Appellate Authority New Delhi MCD Appeal No.11/2017 Page No. 12 of 12