Delhi High Court
Hardayal Singh Mehta And Another vs M.C.D. And Others on 16 January, 1990
Equivalent citations: AIR1990DELHI170
ORDER
1. By this petition under Article 227 of the Constitution of India, the petitioners have challenged an order dated 24th of May, 1989 of the Appellate Tribunal constituted under Section 347A of the Delhi Municipal Corporation Act, 1957, hereinafter referred to as the Act. Two questions have arisen in this case. First, whether the Appellate Tribunal has any inherent power to add a party, except the Corporation and its officers, in an appeal under Section 343 of the Act. Secondly, whether the impugned order to add respondent No. 4 as a party to the appeal preferred by the petitioners under Section 343 of the Act is in accordance with law.
2. The petitioners are husband and wife. Since 1978, they are in occupation of part of property No. 1373, Kashmere Gate, Delhi on the first and second floor, hereinafter referred to as the property, as tenants. Respondent No. 1 is the Municipal Corporation of Delhi. Respondent No. 2 is its Zonal Engineer. Respondent No. 3 is the Tribunal. Respondent No. 4, Nirmala Devi, is the owner in occupation of property No. 1372 which is adjacent to and having a common staircase with the property.
3. The petitioners have alleged that in 1979 the officers of respondent No. 1, at the instance of respondent No. 4, threatened to demolish certain portions of the property without giving them any opportunity to show cause against the threatened action as required by the provisions of the Act. This led the petitioners to file a suit against the Corporation and its officers to restrain them from demolishing the property The Corporation assured the petitioners that they shall not demolish any part of the property without serving statutory notice on them and without following due course of law. On this assurance, the suit filed by the petitioners was disposed of.
4. In 1982. respondent No 4 filed a suit No. 1537/82 on the Original Side of this Court, inter alia, for recovery of Rupees 1, 51,000/- as damages against the petitioners; the Corporation and several other persons and authorities; for a mandatory injunction to direct the various defendants to remove construction and alterations in the property alleged to have been made in contravention of the Building Bye-laws and without sanction of the Municipal Authorities; for a mandatory injunction to direct the petitioners to close the guest house that was being run in the property; and for a mandatory injunction to direct the Corporation to demolish the additional construction and alterations made in the property. Respondent No. 4 also filed an application for an interim order to direct the Corporation to order demolition of a part of the property. This suit is being contested by the petitioners as also by the other defendants.
5. During the pendency of the suit in this Court, respondent No. I made an order dated 4th of August, 1988 directing the petitioners to demolish a part of the property. This demolition order was set aside by the Tribunal on 14th of September, 1988 on an appeal by the petitioners. The Tribunal remanded the matter to respondent No.2 with a direction to make a fresh order after giving an opportunity to the petitioners to produce evidence in support of their contentions in the appeal. For this purpose, the petitioners were directed to appear before respondent No. 2 on 29th of September, 1988. But that day the Office of respondent No. 2 was closed. So, the petitioners were required, by a fresh notice, to appear on 7th of October, 1988 which was also declared a holiday. However, on 27th of September 1988, a statement was made on behalf of the Corporation, at a hearing of the said suit, that an order of demolition of the property had already been passed against the petitioners.
6. On the basis of this information, the petitioners filed C.W. 2403/ 88 in this Court to challenge the alleged action of demolition of the property. A notice was issued to the Corporation to show cause why the writ petition be not admitted. On 16th of January 1989, counsel for the Corporation appeared in Court and he tendered to counsel for the petitioners a copy of an order dated 21st of November, 1988 as also a notice dated 20th of December, 1988 under Section 343 of the Act. Therefore, the petitioners withdrew the writ petition with liberty to pursue their remedy of appeal under Section 343 of the Act.
7 On 19th of January, 1989, the appeal filed by the petitioners was admitted and the Tribunal granted stay of demolition of the property. The said appeal is presently pending before the Tribunal. In this appeal, respondent No. 4 made an application under Order 1, Rule 10, Code of Civil Procedure, hereinafter referred to as the C.P.C., to be added as a respondent.
8 By the impugned order, the Tribunal has allowed respondent No. 4 to be added as a respondent to the petitioners' appeal. The Tribunal has found that the provisions of Order 1, Rule 10, C.P.C. are not applicable to the proceedings before it, but it has held that the power to implead a party "can be exercised on general principle... in the interests of justice .... by invoking inherent powers vested in the Tribunal", and that the circumstances of the case warrant the exercise of this power "for the purpose of completely and effectually adjudicating the dispute arising between the parties." The Tribunal reached this conclusion because it felt that respondent No. 4 "has got interest in the controversy involved and is interested in the result of the appeal" as she is the next door neighbour and is affected by the alleged unauthorised construction which has damaged her property and is otherwise also a source of nuisance to her. The Tribunal also felt, "If the applicant is imp leaded as a party, one controversy which is subject-matter here as well as in the High Court, is likely to be finally determined". Further, with reference to Section 343, the Tribunal has expressed an opinion that the power of the Commissioner to make an order of demolition is to be exercised under the Act "in a representative capacity for and on behalf of the residents of the area for whose benefit these provisions have been made." On this premises, the Tribunal has proceeded to observe that in a representative suit "when the plaintiff does not act bona fide, the persons represented may, on their application, be added as parties". With regard to allegations made by respondent No. 4 that there was collusion between the Municipal Staff and the petitioners, the Tribunal has remarked that the conduct of the Municipal Authorities "does riot seem to be commendable" as they had not produced all the relevant documents before the Tribunal. Further, it has been observed that it is "usual practice in such types of cases and mostly it has been noticed that unauthorised constructions have proliferated in Delhi mostly on account of either collusion or inaction on the part of the municipal authorities". On the basis of these remarks and observations, the Tribunal has come to a conclusion that the presence of respondent No. 4 "will be helpful to adjudicate all the points to dispute in an effective manner and finally besides avoiding multiplicity of litigations." Accordingly, the Tribunal has accepted the application of respondent No. 4 and allowed her to be imp leaded as respondent No. 3 in the appeal.
9. In order to properly appreciate the contentions of the parties, it would be appropriate to advert to the relevant provisions of the Act and the Rules framed there under. Provisions regarding "Building Regulation" have been made in Sections 331 to 349 in Chapter XVI of the Act. Section 332 prohibits the erection of any building or execution of any work specified in Section 334 (which includes works to make any addition or alteration to a building) except with the previous sanction of the Commissioner nor otherwise than in accordance with the provisions of this Chapter and of the Byelaws made under the Act in relation to the erection of building or execution of works. Section 336 provides for sanction of the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of subsection (2) of that Section or the provisions of Section 340. It is, however, unnecessary for the present purpose to refer to those provisions. Section 343 empowers the Commissioner, inter alia, to make an order directing any unauthorised erection or work to be demolished by a person at whose instance it has been commenced or carried on or completed. Sub-section (2) of this Section provides that any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the Appellate Tribunal. Sub-section (3) empowers the Appellate Tribunal to stay the enforcement of that order on such terms, if any, and for such period as it may think fit. Here, it may be mentioned, that the Appellate Tribunal mentioned in sub-sections (2) and (3) and the reference to Section 347-C in subsection (3) have been introduced in these provisions by the Delhi Municipal Corporation (Amendment) Act, 1984 with effect from 2nd of June, 1984. Till then, sub-section (2) and sub-section (3) of Section 343 provided for appeal to the Court of the District Judge of Delhi. By the aid Amending Act, provi3ion has also been made for appeal to the Tribunal against various orders or notices in respect of other matters specified in Chapter XIV instead of such appeals going to the Court of the District Judge, Delhi. Yet, it may be noted that there are certain other matters like Taxation under Chapter VII of the Act in respect of which the provision for appeal to the Court of the District Judge, Delhi, has not been changed. The said Amendment Act has also made provision for creation of the Appellate Tribunal under Section 347A, for appeals to the said Tribunal under Section 347B against certain other orders or notices issued under Chapter XVI, for procedure of the Appellate Tribunal under Section 347C; for an appeal under Section 247D against orders of the Appellate Tribunal to the Administrator, Union Territory of Delhi; and for bar of jurisdiction of Courts under Section 347E to entertain any suit, application or other proceedings in respect of any order or notice appealable under Section 343 or 347B under the Act. In Chapter XXII of the Act, general provision has been made in respect of powers, procedure, offences and penalties. This Chapter includes a part which deals with "Proceedings before the Court of the District Judge" and Section 457 regarding "General Powers and Procedure of the Court of the District Judge."
10. Further, in the exercise of powers conferred by Section 347C of the Act, the Central Government has made rules which are called the Delhi Municipal Corporation Appellate Tribunal (Procedure) Rules, 1986, hereinafter referred to as the Rules. Rule 3 provides that an appeal under sub-section (2) of Section 343 or Section 347B to the Tribunal shall be made in Form No. A.T: 1. Rule I I prescribes the procedure for hearing of the appeal. It lays down, inter alia, that on the date fixed for the hearing of the appeal, the appellant shall be heard and then, if the Tribunal considers it necessary, it may hear the respondent against the appeal and in such a case the appellant shall be entitled to a reply. Rule 13 requires that the proceedings before the Tribunal shall ordinarily be open to the public. Rule 14 envisages production of additional evidence before the Tribunal. Rule 17 empowers the Tribunal to give such orders or such directions as may be necessary or expedient to secure the ends of justice.
11. Since, it is necessary to refer to some of the statutory provisions, the same are being reproduced below:-
"343. Order of demolition and stoppage of buildings and works in certain cases and appeal.
(1) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in Section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made there under, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period, (not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefore has been delivered to that person) as may be specified in the order of demolition:
Provided that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made.
Provided further that where the erection or work has not been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the person to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under sub-section (2).
(2) Any person aggrieved by an order of the Commissioner made under sub-section (1) may prefer an appeal against the order to the Appellate Tribunal of Delhi within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred, under sub-section (2) against an order of demolition, the Appellate Tribunal, may subject to the provisions of sub-section (3) of Section 347C, stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:
Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by the Appellate Tribunal unless security sufficient in the opinion of the said Tribunal has been given by the appellant for not proceeding with such erection or work pending the disposal of the appeal.
(4) No Court shall entertain any suit, application or other proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of this section.
(5) Subject to an order made by the Administrator on appeal under Section 347D, every order made by the Appellate Tribunal on appeal under the this section, and subject to the orders of the Administrator and the Appellate Tribunal on appeal the order of demolition made by the Commissioner shall be final and conclusive.
(6) Where no appeal has been preferred against an order of demolition made by the Commissioner under sub-section (1) or where an order of demolition made by the Commissioner under that sub-section has been confirmed on appeal, whether with or without variation, by the Appellate Tribunal in a case where no appeal has been preferred against the order of the Appellate Tribunal, and by the Administrator in a case where an appeal has been preferred against the order of the Appellate Tribunal the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Appellate Tribunal or Administrator on appeal and on the failure of the person to comply with the order within such period, the Commissioner may himself cause the erection of the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act. "
"347-A. Appellate Tribunal.
(1) The Central Government shall, by notification in the Official Gazette, constitute one or more Appellate Tribunals with headquarters at Delhi, for deciding appeals preferred under Section 343 or Section 347B.
(2) An Appellate Tribunal shall consist of one person to be appointed by the Central Government on such terms and conditions of service as may be prescribed by rules.
(3) A person shall not be qualified for appointment as the Presiding Officer of an Appellate Tribunal unless he is, or has been, A district Judge or an additional district Judge or has, for at least ten years, held a judicial office in India.
(4) to (6) x x x X " "347-C. Procedure of the Appellate Tribunal.
(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the order or notice appealed against or may refer the case back to the authority or officer against whose order or notice the appeal is filed, for a fresh order or notice, after taking additional evidence, if necessary, or such other action as the Appellate Tribunal may specify.
(2) The Appellate Tribunal shall send a copy of every order passed by it to the parties to the appeal.
(3) No Appellate Tribunal shall, in any appeal pending before it in respect of any order or notice under this Act, make an interim order (whether by way of injunction or stay) against the Corporation or against any officer or servant of the Corporation acting or purporting to act in his official capacity, unless an opportunity is given to the Corporation or its officer or servant to be heard in the matter.
Provided that the Appellate Tribunal may without giving an opportunity as aforesaid make an interim order as on exceptional measure if it is satisfied for reasons to be recorded by it is in writing that it is necessary so to do for preventing any loss being caused to the person filing the appeal which cannot be adequately compensated in money.
Provided further that every such interim order shall, if it is not vacated earlier, cease to have effect on the expiry of a, period of fourteen days from the date on which it is made unless before the expiry of that period, the Appellate Tribunal confirms or modifies that order after giving to the Corporation or its officer or servant an opportunity of being heard.
(4) Subject to rules that may be made by the Central Government in this behalf, the awarding of damages in and the costs of, and incidental to, any appeal before an Appellate Tribunal, shall be in its discretion and it shall have full power to determine by and to whom and to what extent and subject to what conditions, if any, such damages or costs are to be paid and to give, in its order disposing of an appeal, necessary directions for the purposes aforesaid.
(5) An order of the Appellate Tribunal made under this section may be executed or caused to be executed by it on the application of the person in whose favor the order has been made.
(6) In hearing and deciding an appeal or in the execution of an order, an Appellate Tribunal shall follow such procedure as may be prescribed by rules.
(7) Every Appellate Tribunal, shall, in addition to the powers conferred on it under this Act, have the same powers as are vested in a Civil Court while trying a suit under the Code of Civil Procedure, 1908, (5 of 1908) in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of persons and examining them on oath;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copies thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents; and
(f) any other matter which may be prescribed by rules, and every proceeding of an Appellate Tribunal in hearing or deciding an appeal or in connection with the execution of its order, shall be deemed to be a. judicial proceeding within the meaning of Ss. 193 and 228, and for the purpose of Section 196, of the Indian Penal Code, (45 of 1860) and every Appellate Tribunal shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)."
"347-D. Appeal against orders of Appellate Tribunal.
(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 sub-sees. (2) and (3) of Section 347B and Section 347C and the rules made there under, 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 S. 347B, and subject to such orders of the Administrator or an Appellate Tribunal an order or notice referred to in sub-sec. (1) of that section, shall be final."
"347-E. Bar of jurisdiction of courts.
(1) After the commencement of S. 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, no court shall entertain any suit,, application or other proceedings in respect of any order or notice appealable under S. 343 or S. 347B and no such order or notice shall be called in question otherwise than by preferring an appeal under those sections.
(2) Notwithstanding anything contained in sub-section (1), every suit, application or other proceeding pending in any court immediately before the commencement of Section 7 of the Delhi Municipal Corporation (Amendment) Act, 1984, in respect of any order or notice appealable under Section 343 or Section 347B, shall continue to be deal with and disposed of by that court as if the said section had not been brought into force."
"457. General powers and procedure of the court of the District Judge.
The procedure provided in the Code of Civil Procedure, 1908, (5 of 1908) in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the court of the District Judge of Delhi under this Act or any bye-law made there under."
Rules 14 and 17 of the Delhi Municipal Corporation Appellate Tribunal (Procedure) Rules, 1986 are being reproduced below:-
"14. Production of additional evidence before the Tribunal.-
(1)The appellant shall not be entitled to produce before the 'Tribunal any additional evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the authority or officer which made the order or issued the notice appealed against, except in the following circumstances, namely:-
(a) Where the authority or officer has refused to admit evidence which ought to have been admitted;
(b) Where the appellant was prevented by a sufficient cause from producing the evidence which he was called upon to produce by that authority or officer;
(c) Where the appellant was prevented by sufficient cause from producing before the authority or officer any evidence, which is relevant to any of the grounds of appeal;
(d) Where the authority or officer has made the order or issued the notice without giving sufficient opportunity to the appellant to adduce evidence relevant to any of the grounds of appeal.
(2) No additional evidence shall be admitted under sub-rule (1) unless the Tribunal records in writing the reasons for its admission.
(3) The Tribunal shall not take any additional evidence produced under sub-rule (1) unless the respondent has been allowed, a reasonable opportunity :--
(a) to examine the evidence or documents or to cross examining the witness produced by the appellant, or
(b) to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1).
(4) Nothing contained in this rule shall affect the powers of the Tribunal to direct the production of any document or the examination of any witness to enable the Tribunal to dispose of the appeal."
17. Orders and directions in certain cases.- The Tribunal may, notwithstanding any of the foregoing provisions give such orders or give such directions, as may be necessary or expedient to secure the ends of justice."
12. Mr. Bansal, learned counsel for the petitioners, has raised the two questions mentioned earlier for decision in this petition. He has contended, first, that the Tribunal has been constituted under Section 347A for the limited purpose of deciding appeals preferred under Section 343 or Section 347B, that it can exercise only such powers as are conferred upon it under the Act, and that it has no inherent power to add any one as a party to an appeal under S. 343 of the Act. Secondly, that the impugned order is, in any event, liable to be set aside as it has not been made in accordance with law, and that there is no justification for adding respondent No. 4 as a party to the petitioners' appeal under Section 343 of the Act. On the other side, Mr. Sabharwal, learned counsel for the Corporation has contended that the Tribunal has the power in a suitable case, to add a party to an appeal if it considers it to be necessary or expedient to do so to secure the ends. of justice. On merits, he has disputed the correctness of the impugned order only in so far as it finds collusion between the petitioners and his clients. Mr. Manmohan Krishan, Advocate for respondent No. 4, has contested both the propositions advanced by Mr. Bansal. He has contended that the Tribunal has been substituted in place of the Court of the District Judge of Delhi as the Forum for deciding appeals under S. 343, that the Tribunal has, therefore, the same powers as were vested in the Court of the District Judge under Section 457 of the Act, that his client only wants to produce documents to assist the Tribunal, and that the Tribunal has property exercised its inherent power to add her as a respondent to the appeal.
13. The first question, whether the Tribunal has the inherent power to add a party to the appeal, depends upon a comparative analysis of the constitution, functions and powers of Courts in contravention to those of Tribunals generally and of the Tribunal under the Act and the Rules.
14.In Associated Cement Company Ltd. v. P. N. Sharma, , a Constitution Bench of the Supreme Court has discussed the basic and the fundamental features which are common to both the Courts and the Tribunals as also the distinctions between them, in the context of a question which arose before the C6urt whether the State of Punjab, exercising its appellate jurisdiction under Rule 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952, is a Tribunal within the meaning of Article 136(l) of the Constitution. In the majority judgment, Chief Justice Gajendragadkar, has explained the constitution and the nature of functions discharged by Courts as distinguished from Tribunals and also the difference between Administrative Tribunals and Quasi-judicial Tribunals. His Lordship has explained that the expression "Court" in the context denotes a tribunal constituted by the State as a part of the ordinarily hierarchy of Courts which are invested with the State's inherent judicial powers, A sovereign State discharges legislative, executive and judicial functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary Courts which have been constituted under its relevant provisions. The Constitution recognises a hierarchy of Courts and to their adjudication are normally entrusted all disputes between the citizens and the State. These Courts can be described as ordinary Courts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these Courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions. It has been explained further that in every State there are administrative bodies or authorities which are required to deal with matters within their jurisdiction in an administrative manner and their decisions are described as administrative decisions. In reaching their administrative decisions, administrative bodies can and often do take into consideration questions of policy. It is not unlikely that even in this process of reaching administrative decisions, the administrative bodies or authorities are required to act fairly and objectively and would in many cases have to follow the principles of natural justice; but the authority to reach decisions conferred on such administrative bodies is clearly distinct and separate from the judicial powers conferred on Courts, and the decisions pronounced by administrative bodies are similarly distinct and separate in character from judicial decisions pronounced by Courts. Tribunals which fall within the purview of Article 136(l) occupy a special position of their own under the scheme of our Constitution. Special matters and questions are entrusted to them for their decision and in that sense they share with the Courts one common characteristic; both the Courts and the tribunals are constituted by the State and are invested with judicial as distinct from purely administrative or executive functions. Such Tribunals and Courts are both adjudicating bodies and they deal with and finally determine disputes between the parties which are entrusted to their jurisdiction. The procedure followed by the Courts is regularly prescribed and in discharging their functions and exercising their powers, the Courts have to conform to that procedure. The procedure which the tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the Courts and the, tribunals is substantially the same, and there is no substantial difference between the functions that they discharge. As in the case of Courts, so in the case of tribunals, it is the State's inherent judicial power which has been transferred and by virtue of the said power, it is the State's inherent judicial function which they discharge. Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on consideration of policy, the State transfers its judicial functions and powers mainly to the Courts especially by the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribunals by entrusting to them the task of adjudicating upon "special" matters and disputes between the parties. It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the Courts, and features which are distinct and separate. The basic and the fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State. In the background of these general observations, the Supreme Court reviewed various earlier decisions where a question arose whether a particular decision reached by an authority or a body was purely of an administrative character or of a quasi-judicial nature which could be corrected by the High Courts in the exercise of their jurisdiction under Article 226 and by the Supreme Court under Article 136 of the Constitution. The main and the basic test which the majority judgment lays down is whether the adjudicating power which a tribunal is empowered to exercise has been "conferred" on it by a Statute and can be described as a part of the State's inherent power exercised in discharging its judicial function.
15. In the present case, Section 343(l) of the Act confers upon the Commissioner of the Corporation a power to make an order for demolition of a building. The exercise of this power prejudicially affects the subject. Although there are not two parties, apart from the Authority, yet the contest is between the Authority proposing to do the act and the subject opposing it. The Tribunal has been constituted by Section 347A for deciding an appeal against such an order of the Commissioner under Section 343 of the Act. This is a clear example of the State's inherent judicial power conferred on the Tribunal in respect of a special and specified matter by a Statute. The procedure to be followed by the Tribunal and the specific powers conferred on it to achieve the stated purpose have also been prescribed by the Act and the Rules. The person who may prefer the appeal is specified in sub-sec. (2) of S. 343. The person(s) who shall be given an opportunity and who have a right to be heard in the appeal are mentioned in sub-sec. (1) and the 2nd proviso to sub-sec. (3) of S. 347-C of the Act. Certain powers have been conferred upon the Tribunal, inter alia, by sub-sec. (3) of S. 343, sub-sections (1), (3), (4) and (5) of S. 347-C. In addition to these powers, sub-sec. (7) of S. 347-C also declares that the Tribunal shall have the same powers as are vested in a Civil Court while trying a suit under the Code of Civil Procedure, 1908, in respect of the matters specified in clauses (a) to (f) thereof. The first part of the last mentioned clause (f) envisages "any other matter which may be prescribed by Rules". The power to permit production of additional evidence under Rule 14 and the power to give such orders or to give such directions as may be necessary or expedient to secure the ends of justice under Rule 17 are examples of the power conferred upon the Tribunal in respect of other matters prescribed by the Rules. Sub-section (1) of Section 347-C also lays down the kind of orders that the Tribunal is empowered to pass on an appeal preferred under Section 343 or Section 347-13. A perusal of these provisions regarding the filing of pleadings, leading of evidence and determination of the matters in dispute, after hearing the parties to the appeal, show that the Tribunals exercise quasi-judicial functions under the Act.
16. In this background, it has to be considered whether the Tribunal has any inherent power to add a person other than the Corporation and its officers or servants, as a party to an appeal under Section 343 of the Act. As already discussed above, the Tribunal is a statutory creation and the appeal before it is also a statutory proceeding, and, therefore, the authority and the power of the Tribunal to decide the appeal is subject to statutory limitations. It exercises a special jurisdiction conferred upon it under the Act. In Jyoti Basu v. Debi Ghosal, , Chinnappa Reddy, J. has explained that a special jurisdiction has always to be exercised in accordance with the Statute creating it and that concept familiar to common law and equity must remain strangers to it unless statutorily embodied. The Tribunal has no power to resort to the "common law" or general principles on consideration of alleged policy because policy in such matters is what the Statute lays down. The question as to who are proper parties to the appeal under S. 343 and who may be imp leaded as a party has to be considered, as in the case of Jyoti Basu (supra), within the "four corners of the Statute". In other words, a Statutory Tribunal derives all its powers, jurisdiction and authority from the express provision made in the Statute by and under which it is created. It has no other powers. It cannot exercise any power vested in a Civil Court unless such power is conferred upon the Tribunal by the Statute.
17. A Court is undoubtedly authorised under Order 1, Rule 10, C.P.C., to add a party to a suit to enable the Court effectively and completely to adjudicate upon and decide all the questions involved in the suit. Apart from this specific provision made in the C.P.C., a Civil Court is also vested with 'inherent power to make such or other orders as may be necessary for the ends of justice. The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. It has been explained in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, , in the majority judgment of Raghubar Dayal, J. that the inherent powers of a Court are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. His Lordship has also pointed out that the inherent powers "are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of -the Legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice".
18. The provision made in Order 1, Rule 10, C.P.C. is, admittedly, not applicable to proceedings before the Tribunal. The power to add a party under this provision which vests in a Civil Court has not been conferred on the Tribunal. This power is not included in the matters enumerated in clauses (a) to (f) of sub-section (7) of Section 347-C of the Act.
19. It hag been contended by Mr. Manmohan Krishan that the Tribunal has the same powers as are vested in the Court of the District Judge under Section 457 of the Act and that the Tribunal has the power, even otherwise, by virtue of Rule 14(4) to direct the production of any document or the examination of any witness, and that the Tribunal has the power, therefore, to add his client, who wishes to assist the Tribunal by producing certain documentary evidence, to enable the Tribunal to effectively dispose of the appeal.
20. Mr. Sabharwal has also tried to support the proposition of Mr. Manmohan Krishan on the additional plea that Rule 17 confers upon the Tribunal powers to give such orders and directions, including an order to add respondent No. 4 as a party, as the Tribunal has found it necessary and expedient in the facts and circumstances of the present case to secure the ends of justice.
21. The argument that the Tribunal has the same powers as are vested in the Court of the District Judge under Section 457 of the Act is wholly misconceived. It is no doubt true that before the Amendment Act of 1984 came into force with effect from 2nd of June 1984, an appeal under Section 343(2) could be preferred to the Court of the District Judge, Delhi, and in such a case the procedure provided in the C.P.C. in regard to suits could be followed by virtue of Section 457 of the Act. Mr. Manmohan Krishan has argued that the Amending Act of 1984 has merely substituted the Tribunal as the forum for an appeal instead of the Court of the District Judge and, therefore, the provision made in Section 457 of the Act is still applicable for the purpose of disposal of the appeal by the Tribunal. Firstly, in view of the peculiar nature and the limited scope of the subject matter of an appeal under Section 343, the provision made in Order 1, Rule 10, C. P. C. could not be invoked to add a party like respondent No. 4. Such a provision would be inconsistent with the nature of the dispute and it cannot be "made applicable" for the disposal of the appeal. Secondly, the Amending Act of 1984 has not only substituted the Tribunal as the forum for an appeal under Section 343 but it has also introduced in the Act Section 347-C which expressly provides for the procedure of the Appellate Tribunal. This provision has been especially made for the particular purpose of the Tribunal which has been established specifically for the purpose of Chapter XVI of the Act. Thus, it necessarily excludes the general powers and procedures laid down in Section 457 under Chapter XXII of the Act. Thirdly, after amendment of the Act in 1984, it is clear that the legislature has converted Chapter XVI into a self-contained Code with regard to Building Regulations, with an express provision for appeals arising under it to be decided by the Tribunal in accordance with the procedure prescribed under the same Chapter. In this way, the Legislature has clearly distinguished between the procedure to be followed for purposes of appeals under Chapter XVI as against the general provision made under Section 457 in Chapter XXII for the purposes of appeals under other provisions of the Act, for example, appeals arising out of the assessment of taxes etc. under Section 169 in Chapter VIII of the Act.
22. The next argument based upon the power of the Tribunal to direct the production of any document or the examination of any witness under sub-rule (4) of Rule 14 is also misconceived. This argument overlooks the essential difference between the power of the Tribunal to direct the production of any document or the examination of any witness on one hand and the power to add a party to the appeal on the other. A person producing a document or appearing as a witness cannot claim a right to participate in the proceedings. A respondent in an appeal can be only such a person against whom any right to relief is claimed in the appeal. In the present case, the petitioners have claimed no right to relief against respondent No. 4 nor has respondent No. 4 even set up any adversary interest in the appeal. Indeed, Mr. Manmohan Krishan frankly conceded during the hearing that the Tribunal has no power to decide any dispute between the petitioners and his client or between the Corporation and his client. The only interest evinced by respondent No. 4 is her decree to produce some documentary evidence to assist the Tribunal to effectively dispose of the appeal. On this basis, respondent No. 4 could, if at all, be examined as a witness but she cannot be added as a party to the appeal. The provision made in sub-rule (4) of Rule 14, with regard to the power of the Tribunal to direct the production of any document or the examination of any witness, is of no avail to the respondents. This provision does not show that the Tribunal has the power to add respondent No. 4 as a party to the appeal.
23. Mr. Sabharwal relied upon Rule 17 to contend that this is an express provision made in the Rules to confer power on the Tribunal to give such orders or give such directions as may be necessary or expedient to secure the ends of justice and that this power includes the power to make an order to add a party to the appeal. Now, the vital question is whether Rule 17 confers incidental and subsidiary powers meant for the fulfillment of the purpose for which the Tribunal is created under the Act or whether this rule confers the "inherent power" of a Civil Court on the Tribunal. To answer these questions, it is necessary to recall the observations made by Chief Justice Gajendragadkar in the case of Associated Cement Co. , (supra) to explain the distinction between the general power of the Courts established under the Constitution to do justice generally as distinguished from the special purposes for which tribunals are created by Statutes for the adjudication of certain matters as also to the observations made by Chinnappa Reddy, J. in the case of Jyoti Basu (supra) that in statutory proceedings the answer to the question with regard to powers of statutory creations for the purposes of their special jurisdiction must be sought "within the four corners of the Statute". In view of the special and the limited purposes for which the Tribunal is created, namely, for deciding appeals preferred under S. 343 or S. 347-B of the Act, the power under Rule 17 has to be restricted to that special purpose and the power of the Tribunal cannot be widened on the basis of Rule 17 to extend the same beyond the scope of the special purposes for which the Tribunal has been created. In the exercise of this power, the Tribunal cannot travel outside the scope of the limited purpose for which it created. This power has been conferred upon the Tribunal to secure the ends of justice with regard to only such matters as fall within its limited jurisdiction. This rule has to be correlated with, and it cannot enlarge the scope of the appeal : See East India Corporation v. Income-tax Commissioner, .
24. Mr, Sabharwal has relied upon the decision of the Supreme Court in Hochtief Gammon v. Industrial Tribunal, Bhubaneshwar, Orissa, to contend that the Tribunal, like the Industrial Tribunal has an 'implied power' to add a party, A perusal of this judgment shows that it is based upon a provision made in S. 18(b) of the Industrial Disputes Act as it was first enacted and later renumbered and included in Section 18(3)(b) by the Industrial Disputes Amendment Act 36 of 1956, which envisaged that a settlement arrived at in the course of conciliation proceedings under that Act or an award made by an appropriate Government under subsection (2) of Section 15 shall be binding on (a) a party to Industrial Disputes; (b) all other parties summoned to appear in the proceedings as parties to the dispute. This provision was construed by the Supreme Court to contemplate that persons other than parties to the Industrial Dispute may be summoned before the Tribunal. In this context, the Supreme Court observed that the Tribunal had an 'implied power' to summon parties other than parties to the industrial dispute to appear in the proceedings before it. This judgment does not support the argument advanced by Mr. Sabharwal as there is no provision in the Act like Section 18(b) of the Industrial Disputes Act as it was first enacted or re-numbered Section 19(3)(b) after its amendment in 1956.
25. There is yet another way to test the argument of Mr. Sabharwal in the context of the scheme of the provisions made in Ss. 343, 347-C and 347-D of the Act. The Commissioner has the power under sub-sec. (1) of S. 343 to make an order directing that any unauthorised erection or work shall be demolished by the person at whose instance it has been commenced or has been carried on or has been completed. The proviso prohibits the making of an order of demolition unless the concerned person has been given a reasonable opportunity of showing cause why such order shall not be made. The unauthorised construction could be detected by the officers or servants of the Corporation or an information in respect of the same could be given to the Commissioner by anyone else. Irrespective of the source of the information, the exercise of power by the Commissioner must be based upon the material on record and the concerned person must have a reasonable opportunity to controvert the same. This is the first stage, and this is also the foundation on which the subsequent proceedings would rest. At this stage itself, a question must be asked whether a person, like respondent No. 4, has a right to participate in the proceedings. Even if it be assumed, for the sake of discussion, that the Commissioner may have initiated action under sub-sec. (1) on the basis of some information or material furnished by such a person; yet, the proceedings before the Commissioner would not partake the character of a dispute or a contest between the informant and the concerned person. As discussed earlier, in the event of exercise of power by the Commissioner under sub-section (1) of Section 343, the contest would still be between the Commissioner proposing to do the act, namely, to make the order of demolition, and the concerned person opposing it. The determination of the matter by the Commissioner is a quasi-judicial act. The Commissioner, after considering the cause shown by the concerned person, may think it fit to drop the notice or he may proceed to make an order directing that the unauthorised construction shall be demolished. If the Commissioner decides to drop the proceedings, that would be the end of the matter. In such a case, the person on whose information the Commissioner may have initiated the action has not been given a right to appeal against the decision of the Commissioner. The reason for it is, as earlier mentioned, that the proceedings under Section 343(l) are not adversary proceedings and there cannot be. a rival party to the proceedings other than the Commissioner. Therefore, the person who may have given information or supplied material to the Commissioner which may be relevant for the purposes of an action under sub-section (1) of Section 343, would not be the person aggrieved by the decision or the order of the Commissioner refusing to proceed in the matter. On the other hand, when the Commissioner makes an order of demolition, sub-section (1) of Section 343 enjoins upon the Commissioner a duty to deliver to the concerned person the order of demolition with a brief statement of the reasons therefore. This provision has been made to enable the concerned person to prefer an appeal against the order of demolition. Sub-section (2) of Section 343 gives a right to the "person aggrieved" by the order of the Commissioner to prefer an appeal to the Tribunal. It is obvious that the person aggrieved will be only he whose building is sought to be demolished and not any other person who may be interested, for whatever reasons, to get the building demolished.
26. Section 347-C lays down the procedure for the hearing and disposal of the appeal. Sub-sec.(I) authorises the Tribunal to pass such orders on the appeal as it thinks fit confirming, modifying or annulling the order or it may refer the case back to the authority against whose order the appeal is filed, for a fresh order, after taking additional evidence, if necessary, or such other action as the Tribunal may specify. These are the different kinds of orders that the Tribunal can make while deciding the appeal. This subsection also casts an obligation upon the Tribunal to pass such orders after giving the parties to the appeal an opportunity of being heard.
27. The pertinent question is: who are the parties to the appeal? The answer is simple and there can be no doubt about it. The appeal is preferred by the aggrieved person who would be the appellant. The grievance in the appeal would be against the demolition order made by the Commissioner. So, the Commissioner, who is an Authority under the Corporation, would be called upon to defend the order in appeal. Thus, the Corporation and the Commissioner would be the respondents in the appeal. Any other person, like respondent No. 4, who may have furnished any information or material to the Commissioner for initiating action for demolition could be only a witness or the source from which relevant material or information could be obtained in the appeal also because it is merely a continuation of the proceedings under Section 343. The Tribunal may, in the exercise of its power under Rule 14(4) direct such a person to produce any document or it may even direct the examination of such a person as a witness, to enable the Tribunal to dispose of the appeal. But, this would not justify the addition of such a person as a party to the appeal. Only a person who has an interest in the subject matter of the appeal can be a party. Since such a 'person, as already discussed, has no interest in the order made by the Commissioner refusing to demolish or directing demolition of the building he cannot claim any interest in the decision of the appeal either.
28. If a person like respondent No. 4, is added as a party to the appeal, that person would then get a right to participate not only in the proceedings before the Tribunal, but would also be entitled to continue participation if the Tribunal were to set aside the impugned order of the Commissioner and refer the case back to him for a fresh order; and if the Commissioner makes an unfavorable order on remand, to appeal against it under sub-section (2) of S. 343, back to the Tribunal; and, if the Tribunal were to confirm the order under appeal, to prefer a further appeal under Section 347-D to the Administrator against the Tribunal's order. In other words, an order made by the Tribunal to add a party to the appeal would confer upon that party a right to participate in the proceedings in the appeal, a right to participate in the proceedings before the Commissioner if the Tribunal refers the case back to the Commissioner, and even a right to prefer an appeal under Section 347-B to the Administrator against an order of the Tribunal. These are essentially statutory rights that can be created only by the Statute. The Tribunal cannot confer such rights upon a party. It has no power to do so..
29. Thus, the provisions made in Sections 343, 347-C and 347-D clearly show that intervention in such proceedings by a person like respondent No. 4 is wholly unwarranted. To add such a person as a party to the appeal would only cause embarrassment in the proceedings and would completely upset the scheme prescribed under the Act and the Rules for a proper decision and disposal of an appeal under Section 343.
30. In view of the foregoing discussion, it is clear that only a Court has the inherent power, apart from the specific powers conferred upon it, to do justice, and that a Tribunal has only such powers as are specifically conferred upon it by the Statute under which it is created. To hold that the Tribunal has the power to add a party would imply conferment of a power on the Tribunal to create a right in favor of a person to participate in the proceedings from the start under Section 343(l) to the finish under Section 347-B which would include a right to participate in the original proceeding at its inception as also a right to first appeal to the Tribunal and then to the Administrator from an order made under Section 343(l). All this would be outside and in conflict with the scheme of the provisions made in the Act.
31. Apart from the finding that the Tribunal has no power to add a party, the impugned order cannot be sustained on merits either. It is primarily based upon four grounds. First, that respondent No. 4 has got an interest in the controversy and in the result of the appeal. Secondly, that her participation in the appeal would avoid multiplicity of proceedings. Thirdly, that the Corporation exercises the power under Section 343 in "a representative capacity for and on behalf of the residents of the area for whose benefit these provisions have been made" and that in a representative suit when the plaintiff does not act bona fide, "the persons represented may, on their application, be added as parties". Fourthly, that the conduct of the municipal authorities "does not seem to be commendable" and their performance on record "is far from satisfactory" as "actual demolition action has not been taken during about 10 years", and that the Corporation had not produced "all the relevant documents connected with the subject matter right from the year 1978".
32. With regard to the first and the second ground, it appears that the Tribunal has proceeded on a misconception of the scope of the appeal, the nature of dispute(s) between the petitioners and respondent No. 4 and between respondent No. 4 and the Corporation, as also the nature and effect of the suit filed by respondent No. 4 which is pending on the original side of this Court. The first aspect, namely, the scope and the subject matter of the appeal has already been discussed earlier and what has been said above need not be repeated. The subject matter of dispute(s) between the petitioners and respondent No. 4, between respondent No. 4 and the Corporation and also between respondent No. 4 and various other persons and, authorities, like the alleged damage caused to the property of respondent No. 4, disturbance or nuisance caused to her and to the members of her family by the business carried on by the petitioners or by the additions or alterations etc. in the building alleged to have been made by the petitioners and the alleged dereliction of the performance of public duties by the Corporation and the Commissioner of Police, are all extraneous to the appeal and are the subject matter of the suit filed by respondent No. 4 which is still pending on the original side of this Court. The Tribunal was not justified in holding that respondent No. 4 has interest in the subject matter and in the decision of the appeal merely for the reason that she is the owner and occupier of the adjoining property with a common staircase and that she has claimed a mandatory injunction in her suit pending in this Court for a direction to be issued to the Corporation to demolish the alleged unauthorised construction in the property. The question whether the alleged construction is in accordance With law or otherwise would be only one of the aspects in respect of which respondent No. 4 could, if at all, furnish any information or material in the proceedings before the Commissioner or in the appeal before the Tribunal. Respondent No. 4 would, therefore, if at all, be a witness in the proceedings. This cannot justify the finding that she has an "interest" in the appeal. Learned counsel for the respondents rightly conceded, in view of the limited scope of the appeal under Section 343, that the Tribunal has no power or jurisdiction to adjudicate upon the disputes between the petitioners and respondent No. 4 and those between her and the Corporation which are the subject matter of the suit pending in this Court. Here, it would be significant to add that none of the respondents have even contended that the jurisdiction of this Court to entertain the suit in respect of the subject matter thereof is barred by any provision made in the Act or in any other law. In this view of the matter, it is apparent that the Tribunal went wrong in holding that by adding respondent No. 4 as a party to the appeal it would enable the Tribunal to completely and effectively adjudicate upon the disputes between the parties and to avoid multiplicity of proceedings. Indeed, both of the learned counsel who appeared for the Corporation and for respondent No. 4 were candid in expressing their view that it would be not only beyond the jurisdiction of the Tribunal but it would be improper for it to toy with the idea of ruling upon or deciding a controversy between the parties which is within the jurisdiction of this Court and is the subject matter of proceedings in the suit pending on the Original Side of this Court in pursuance of the avowed object to avoid multiplicity of proceedings.
33. With regard to the third ground, it appears that the Tribunal mixed up the representative character of the Corporation as an elected body with the concept of a representative suit. The Corporation has been established as a body corporate under Section 3 of the Act. Sub-section (3) of this Section lays down that the Corporation shall be composed of councillors and elder men. Subsection (4) provides that the councillors shall be chosen by direct election from various wards into which Delhi is divided and elder men shall be chosen by the councillors from amongst persons who are qualified to be councillors but are not councillors themselves. In this sense, the Corporation is a representative body of the residents of Delhi. The Corporation, as a body,. corporate, is charged with the Municipal Government of Delhi. Section 41 declares that subject to the provisions of the Act and the Rules, Regulations and Bye-laws made there under the Municipal Government of Delhi shall vest in the Corporation. It is incumbent on the Corporation, under Section 12 of the Act, to make adequate provision by means or measures which it may lawfully use or take, among other matters, for "the securing or removal of dangerous buildings and places". Provisions in Chapter XVI with regard to the Building Regulations have been made to discharge this obligatory function of the Corporation. Section 44 of the Act mentions the Commissioner as one of the authorities under the Corporation for the efficient performance of its functions. The Central Government has the power under Section 54, by a Notification in the Official Gazette to appoint a suitable person as the Commissioner. The entire executive power for the purpose of carrying out the relevant provisions to the Act vests in the Commissioner by virtue of Section 59 of the Act. The Commissioner is the authority empowered to make an order of demolition under, and in accordance with Section 343. Thus, it is clear that the power to make an order of demolition can be exercised only by the specified authority and in accordance with the provision made for that purpose under Section 343. This is a part of the executive power which vests in the Commissioner who discharges this function as an authority under the Corporation. The Tribunal has misdirected its view on the erroneous assumption that the Corporation or the Commissioner exercises the power under Section 343 in a representative capacity for and on behalf of the residents of the area for whose benefit this provision has been made. No doubt, the Corporation and the Commissioner exercise the power vested in them in public interest and for the public good but that does not mean that they do so in "a representative capacity" in the sense betrayed by the impugned order. The analogy of a representative suit is wholly inapplicable to the present case. A representative suit envisages numerous persons having the "same interest" in one suit. It is only in that kind of situation that anyone or more of the persons having the same. interest can seek and be permitted to participate in the proceedings as a party to the suit. In order to put the proposition to a test, could it be said that a resident of the locality could take unto himself the task of demolition of a building or to make an order of demolition or to call upon another to show cause why was building should not be demolished on the failure of the Municipal Authorities to do so on his asking. Obviously, no one can do so in a civilised society and no such proposition can even be countenanced. Otherwise, everyone would take the law in his own hands which would result in chaos rather than an orderly Municipal Government of Delhi.
34. Lastly, there appears to be no justification for the Tribunal, at the present stage of the proceedings, to infer collusion between the petitioners and the Corporation or to cast any aspersions upon the Corporation to express his anguish on the conduct of the proceedings by its officers. The delay in disposal of the matter would operate to the prejudice of the petitioners also who have been living under the constant threat of demolition for the last so many years despite the fact that they were assured by the Corporation in the suit filed by them in 1979 that no part of the property shall be demolished without notice to them and otherwise than in accordance with law. That threat still looms large over the heads of the petitioners. The facts of the case noticed earlier show that on a previous occasion demolition proceedings initiated by the Commissioner were remanded by the Tribunal on an appeal by the petitioners in September 1988 and that the present appeal has arisen out of fresh action initiated by the Commissioner. It is needless to say that an order of demolition can be made only in accordance with law. Irrespective of equity and of the good or bad conduct of any of the parties, law shall have to take its own course. The proceedings before the Tribunal are of a judicial nature. The Tribunal has to decide the appeal strictly in accordance with law. It should not be swayed one way or the other on mere impressions of a general nature as have been expressed in the impugned order. No doubt, when the Tribunal takes up the appeal for final decision, it would give due consideration to the material that may be available on record of the effect of that which may not be there for a fair decision of the matter within the scope of the appeal before it. For the purpose of deciding whether respondent No. 4 would be added as a party to the appeal, however, I find no justification for the adverse remarks made by the Tribunal against the Corporation, or its officers.
35. In these circumstances, it is found that the impugned order of the Tribunal cannot be sustained on any of the reasons stated in it.
36.To conclude, it is found that the Tribunal has no power to add anyone except the Corporation and its officers or servants as a party to an appeal under S. 343 of the Act and, even otherwise, the impugned order is unjust and is invalid.
37. Therefore, the impugned order dated 24th of May 1989 made by the Appellate Tribunal is set aside and this petition is allowed with costs. Petitioners' counsel fee Rs. 2,000/-.
36. Petition allowed.