January 28, 2019:
On Friday, Hon'ble Mr Justice V. Kameswar Rao of Delhi High Court answered the Reference been made by the learned District and Sessions Judge (Hqs.) under Order XLVI of the Code of Civil Procedure, 1908.
The Reference was made with regard to the jurisdiction of the Court of District and Sessions Judge (Hqs.) Delhi for entertaining appeals under Section 347 D of the Delhi Municipal Corporation Act, 1957.
The facts which arises for consideration on the reference are that the appellant Senjil Gupta filed an Appeal before the District and Sessions Judge (Hqs.) under Section 347D of the Act challenging an order dated June 5, 2015 passed by the Presiding Officer, Appellate Tribunal (ATMCD) in an Appeal titled as Vishni Hingorani v. North Delhi Municipal Corporation and Ors. Vide the said order, ATMCD dismissed an application filed by the appellant Senjil Gupta under Order XXII Rule 10 read with Order I Rule 10 CPC.
The following questions of law arises for consideration before the Hon'ble High Court:-
1. Whether the Administrator (here in this case the District and Sessions Judge (Hqs.) Tis Hazari Courts, 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 347 D of the Delhi Municipal Act? 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 orders dated 27.05.2016 and 08.08.2016 by which ATMCD had allowed the applicant /respondent No.2 to file documents and argue the matter despite dismissing the application under Order I Rule 10 CPC filed by the respondent No.2 and order dated 08.08.2016 to the extent that the Ld. ATMCD adjourned the matter for arguments on the objections filed by the respondent No.2 to the report of the Local Commissioner thereby taking on record the objections and also the documents filed by the respondent No.2, as observed by the Hon’ble High Court of Delhi in W.P.(C) No. 10749/2016 decided vide order dated 11.11.2016?
The court observed that "a perusal of Section 343 and Section 347B would reveal that in so far as an order under Section 343 is concerned, the same is relatable to an order of demolition and stoppage of buildings and works in certain cases.
Similarly, Section 347B relates to certain orders made or notice issued under the Act. The same are relatable to Sections 313, 314, 315(1), 317(2), Sections 334, 336, 337 and 338 etc.
Nowhere the sections refer to an order passed in an application filed under Order XXII Rules 10 and / or Order 1 Rule 10 CPC read with Section 151 CPC. So, it necessarily follows that in the absence of the said provisions of CPC being referred to either in Section 343 or in Section 347B, an appeal before the District and Sessions Judge against an order dated June 5, 2015, which is an order under Order XXII Rule 10 read Section Order 1 Rule 10 CPC shall not lie."
It is held that an 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, can be a 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.
Consequently, the references are answered by holding that it shall only be the orders / notice issued under Section 343 and Section 347B of the Act, which can be challenged in an appeal before the learned District & Sessions Judge (HQs) under Section 347D of the Act.
Read Judgment@ LatestLaws.com
Senjil Gupta & Ors Vs North Delhi Municipal Corporation 25-01-2019(Downloadable PDF)
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