Delhi District Court
Mohan Lal Mehta S/O Late Sh. Seva Ram ... vs East Delhi Municipal Corporation on 15 May, 2014
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IN THE COURT OF SH. J.R. ARYAN : DISTRICT & SESSIONS JUDGE :
NORTHEAST DISTRICT : KARKARDOOMA COURTS : DELHI :
PPA. No. 01/2013
Unique Case ID NO. 02402C0325302013
Mohan Lal Mehta S/o late Sh. Seva Ram Mehta,
R/o H.45, New Seelampur,
Delhi. .....Appellant.
vs.
East Delhi Municipal Corporation,
Shahdara, Delhi,
Through its Commissioner. ......Respondent.
Date of Institution : 28.10.2013
Date of Reserving for Order : 08.05.2014
Date of Pronouncement : 15.05.2014
O R D E R :
1. Present appeal under Section 347D DMC Act is filed by Sh.
Mohan Lal Mehta whereby earlier two orders dated 04.04.2013 and 01.08.2013 passed by ld. Appellate Tribunal, MCD, Delhi, are challenged. By order dated 04.04.2013 appeal under Section 343 DMC Act earlier filed by appellant Sh. Mohan Lal Mehta questioning demolition order dated 05.07.2010 was dismissed as withdrawn as per statement/representation given by counsel for the appellant. Later on appellant moved miscellaneous application before ld. Appellate Tribunal, MCD for restoration of his appeal by recalling earlier order dated 04.04.2013 and that application was dismissed by the ld. Appellate Tribunal by its order dated 01.08.2013 and both these orders have been challenged through the present appeal. PPA No. 01/14 Page 1/5
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2. Counsel Sh. W.A.Khan appearing for the appellant submitted that counsel representing appellant before ld. Appellate Tribunal in fact misconducted himself by withdrawing appeal and rending appellant remedy less. It is submitted that counsel representing appellant before Appellate Tribunal had not been specifically authorized by the appellant to withdraw that appeal. It is submitted that initial demolition order dated 05.07.2010 had been passed by Assistant Engineer and the same was neither demolition order nor passed by appropriate competent officer as per provisions of Section 343 DMC Act that order had never been served upon the appellant and only in the year, 2012 when some contempt proceedings came up that appellant came to know about the order. It is further pleaded in the present appeal that no demolition order could have been passed because of protection granted by Delhi Laws (Special Protection) Act, 2006, which has now been extended till year, 2014 and thus speaking order dated 05.07.2010 issued by Assistant Engineer was an illegal order and was liable to be setaside. It is further pleaded that construction in the suit premises was old and appellant had never raised any new construction or even any repair of existence suit property after 2002. It is finally pleaded that statement made by the appellant's counsel before ld. Appellate Tribunal will seriously prejudice appellant in prosecuting his remedy before the Court and order impugned deserves to be setaside.
3. Counsel Sh. Tyagi appearing on behalf of MCD (East) PPA No. 01/14 Page 2/5 3 submitted that where the appeal had been disposed on statement given by the advocate representing the appellant then appellant was not competent or entitled to question the conduct of his advocate. It is further submitted that appeal filed before ld. Appellate Tribunal on 10.10.2012 against order dated 05.07.2010 was time barred and present appeal is also time barred and in the present appeal there is no valid plausible explanation for condonation of delay and appeal deserves to be dismissed.
4. I have given consideration to these submissions.
5. In the delay condonation application under Section 5 of the Limitation Act, it is pleaded that appellant is a Sr. Citizen now aged around 62 years and has no other property except suit premises to accommodate his family. It is pleaded that one room on the front side had already been demolished by the MCD and one room and kitchen, if demolished which is subject matter of the present litigation, appellant will be rendered homeless and because of this consistent fear in mind, he suffered a chest pain which was detected to be heart ailment diagonized as heartattack on 25.09.2013 and he was hospitalized. All these medical reports are filed in support of this delay condonation application. Accordingly, appeal beyond permissible 30 days period from the date of the order impugned is prayed to be condoned. Considering the plea in the condonation application supported by the medical reports, I do not find delay is on account of any culpable negligence or to achieve any illobject, it PPA No. 01/14 Page 3/5 4 deserves to be condoned and delay is condoned.
6. It appears from the record of ld. Appellate Tribunal that earlier appeal was dismissed in view of status report submitted by Executive Engineer (B), Shahdara, SouthZone, to the effect that constructions in a property which was more than 7 years old were protected from any demolition till December, 2014 because of protection granted under Delhi Laws (Special Provisions) Act, 2011, counsel Sh. Sunil Gautam representing the applicant then gave statement before the Court that since no demolition action was to be taken in the property of the appellant, property being constructed prior to February, 2007, he withdrew the appeal. I do agree with submissions of ld. appellant's counsel that ld. Appellate Tribunal ought to have disposed of appeal as withdrawn or to have become infructuous for the time being when under Delhi Laws (Special Protection) Act, 2011 no demolition was contemplated by the authorities till December, 2014. But then while dismissing appeal on the basis of statement of appellant's counsel, ld. Appellate Tribunal further held that impugned demolition order of property of appellant was confirmed but its implementation was kept in abeyance in view of the status report filed by the MCD, certainly upholding the demolition order was without going into the merits of the appeal which appellant had filed before the ld. Appellate Tribunal and it was to the serious prejudice to interest of the appellant. Issue rather may not be whether the dismissal of appeal on the basis of statement PPA No. 01/14 Page 4/5 5 counsel for the appellant by its withdrawal was an order not liable in challenge on a plea that advocate had been authorized by the appellant to act on his behalf. Issue rather is when MCD itself made representation before the ld. Appellate Authority that in view of Delhi Laws (Special Provisions) Act no demolition of property of the appellant was to be carried out before December, 2014 and further course of action was to be decided by the authorities in terms of policy formulated on that subject, then appeal for the time being could have been considered become infructuous and ought to have been disposed of in those terms. Upholding demolition order without considering the appellant's plea and contention in the appeal was a serious prejudice to the appellant and prima facie amounts to a situation condemning appellant unheard. To my view the present appeal deserves to be allowed on that point and appellant must get an opportunity to prosecute the appeal before ld. Appellate Authority. Accordingly, order impugned challenged through this appeal are set aside. Original appeal dated 10.10.2012 No. 554/2012 is restored for its hearing on its merits, including any delay condonation if pending in that appeal.
7. A copy of this order along with record of ld. Appellate Tribunal be sent back. Appeal file be consigned to Record Room.
Announced in the Open Court (J.R. Aryan)
th
On this 15 day of May, 2014. District & Sessions Judge, NE, Karkardooma Courts, Delhi.
PPA No. 01/14 Page 5/5