Hardyal Singh Mehta vs Municipal Corporation Of Delhi
1991 Latest Caselaw 662 Del

JUDGMENT

S.N. Sapra, J.

(1) By the present petition, filed under Article 227 of the Constitution of India, petitioners have challenged the impugned order dated April 4, 1990, by which, the Appellate Tribunal, in exercise of its power, under Rulel4(4)ofDelhi Municipal Corporation, Appellate Tribunal (Procedure) Rules, 1986, hereinafter called the Rules, permitted Smt. Nirmala Devi, respondent no. 3, to produce certain documents.

(2) Briefly stated, the facts and circumstances, giving rise to the filing of the present petition, are, as under : According to petitioner, they are tenants in premises No. 1373, Kashmere Gate, Delhi, since March, 1978, under a lease-deed, executed between them and the landlord/owner, thereby, given them the right to run the Guest House or to use the premises for other commercial purposes. Smt. Nirmala Devi, respondent no. 3 herein, is iii occupation of premises No. 1372, Kashmere Gate, Delhi. According to petitioners, the premises in their occupation, is independent and similarly, the premises of respondent no. 3, is also independent. The stair case, leading to both the premises, is common.

(3) After getting the premises on lease, petitioners started running a guest house therein, under the name and style of Paul's Guest House. On account of various complaints. Authorities did not grant license, in favor of petitioners, for running the Guest House.

(4) Respondent No. 3 also filed a suit in this Court, seeking various reliefs, including the relief of Injunction, to restrain petitioners from running the Guest house and from using the premises for commercial purposes. By an Interim order, petitioners were restrained from running the Guest House, on the ground, that petitioners did not bold a license in their favor, for running the Guest House. According to petitioners, the object of respondent no. 3 was always to harass petitioners. The closure of Guest House did not satisfy respondent no. 3. She, through one of her sons, namely, Shri Jugal Kishore Gupta, went on sending complaints after complaints to the Authorities coacerned.

(5) The result was that under pressure from respondent no. 3 the officials of the Municipal Corporation of Delhi threatened to demolish various portions of the premises in occupation of petitioners. When challenged, in various legal proceedings, instituted by petitioners, the officers of the Corporation gave undertaking, that they would not demolish, without following procedure of law. Again, when officials of Corporation threatened to demolish the property, petitioners filed a civil writ petition No. 2403 of 1988, in the Delhi High Court. The Corporation conceded that demolition order had been passed without serving a notice on petitioners. This Court was placed to pass an order dated January 16, 1989, holding that the order of demolition had been passed, without serving statutory notice. The liberty was given to petitioners to challenge the order by an appeal, before the Appellate Authority, within the period of limitation.

(6) Petitioners filed an appeal, under Section 347-A of Delhi Municipal Corporation Act, 1957. before the Appellate Tribunal, Municipal Corporation of Delhi. During the pendency of the appeal, respondent no. 3 filed an application, under Order I Rule 10 Civil Procedure Code . for being imp leaded, as a party to the appeal.

(7) Vide order dated May 24, 1989, learned Appellate Tribunal allowed the application of respondent no. 3, and imp leaded her as a party, in the appeal.

(8) Aggrieved by the aforesaid order, petitioners filed a petition, being C.M. (M) 161 of 1989, under Article 227 of the Constitution, in the High Court of Delhi.

(9) Vide Judgment dated January 16, 1990, A.B. Saharya, J. set aside the order dated May 24, 1989, with costs of Rs. 2.000.00 .

(10) After setting aside of the aforesaid order, respondent no. 3 filed two applications, one under Rules 14 and 17 of the Rules and, another under Section 347-B(7) of the Delhi Municipal Corporation Act, read with Rule 14(4) of the Rules, thereby, seeking various reliefs, including the direction for placing certain documents on the record.

(11) By the impugned order dated April 4, 1990, the learned Appellate Tribunal, in exercise of its power, under Rule 14(4) of the Rules, permitted Smt. Nirmala Devi, to produce the documents on the ground, that most of these documents related to the point in issue. As regards to the examination of the witnesses, the Tribunal held that the request would be considered, at the time of bearing of the arguments on merits of the appeal and, if necessary, the Tribunal would invoice its power, under the procedural Rules. The appellants, (the present petitioners), as well as, the Municipal Corporation of Delhi, were given liberty to file documents in rebuttal of the documents, placed on record, by Smt. Nirmala Devi.

(12) Various contentions have been urged before me by Mr. R.P. Bansal, learned Counsel for petitioners, against the impugned order.

(13) The first contention was that, in view of the Judgment of A.B. Saharya. J. in Hardyal Singh Mehta and another v. M.C.D. and Others , between the same parties, the Appellate Tribunal has no jurisdiction to allow a third party, either to place documents on record or '/ approach the Court, for appearing as a witness. In fact, respondent no. 3 has no right to participate In the proceedings. In the appeal, petitioners are aggrieved parties and other party is only Municipal Corporation of Delhi. The High Court, has already held that third parties could not be imp leaded as parties in the appeal, filed under Section 347-A of the Delhi Municipal Corporation Act, nor the third party could be allowed to participate in the proceedings. Even, under the relevant Rules, only the parties can summon witnesses and place documents on the record. Mr. Bansal further argued that the third party has no Interest, of any kind whatsoever, in the appeal, as such has no right to either participate in the proceedings in the appeal or move another application for any purpose, whatsoever. Rule 14(4) does not vest any Jurisdiction in the Appellate Tribunal, to consider and decide the application of the third party, for either producing the documents or for giving evidence. If a person is not a party, how that party can be allowed to produce documents In fact, the Appellate Tribunal has not property interpreted the Judgment to A.B. Saharya, J.

(14) In exercise of powers, conferred by Section 347-C of Delhi Municipal Corporation Act, the Central Government has made the Rules, called Delhi Municipal Corporation Appellate Tribunal (Procedure) Rules, 1986. With a view to properly appreciate the question involved, it will be proper to reproduce the Rules 14 and 17 of the Rules, which are as under :

"14.PRODUCTIONof 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 (he 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 be was called upon to produce by that authority or officer; (e) 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 respondents 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 are 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.ORDERSand 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."

(15) The question, which arose, before A.B. Saharya, j., for determination was, as to, who ought to be the parties in the appeal, filed against an order of demolition, under Section 347-A of Delhi Municipal Corporation Act.

(16) After considering the various provisions, as contained in the Delhi Municipal Corporation Act, the Rules framed there under, as well as, the Civil Procedure Code, my learned brother A.B. Saharya, J. held that the Appellate Tribunal has no power to add anyone, except the Corporation and its officers or servants, as parties to an appeal, filed against the order, directing the demolition of construction, It was held: "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 the 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 Civil Procedure Code . in regard to suits could be allowed by virtue of Section 457 of the Act. Mr. Manmohan Krishan has argued that of multiplicity avoid to object avowed the pursuance in Court this side Original on pending suit proceedings matter subject is and jurisdiction within which parties between controversy a deciding or upon ruling idea with toy it for improper be would but Tribunal beyond only not that view their expressing candid were 4 no. respondent Corporation appeared who counsel learned both Indeed, proceedings. disputes the. adjudicate effectively completely enable appeal party as adding by holding wrong went apparent matter, In law. other any Act made provision barred thereof respect entertain contended even have respondents none that add significant Here, Court. are her those petitioners power no has 343, Section under scope limited conceded, rightly Learned appeal. ?interest? an she finding justify cannot This witness all, at if therefore, would, 4, Respondent Tribunal. before Commissioner material information furnish could, aspects one otherwise law accordance construction alleged whether question The property. unauthorised demolish issued direction injunction mandatory claimed case stair common property adjoining occupier owner reason merely decision interest justified was original still filed extraneous all Police, duties public performance dereliction been building etc. alterations additions carried business family members caused nuisance disturbance 4? damage like authorities persons various also dent respond (s) dispute repeated. need above said what earlier discussed already namely, aspect, first suit, effect nature Corporation, misconception proceeded appears ground, second regard With 343. disposal proper Rules prescribed scheme upset embarrassment cause person such To unwarranted. wholly - intervention show clearly 347-D 347-C Sections provisions Thus, either. in(erest claim canno( he demolition directing refusing order 1nterest No. discussed, person, Since party. can mat(er Only addition (he But, dispose witness, examination direct may document produce (4) 14 Rule its exercise may, continuation because obtained could relevant from source action initiating furnished Any defend called Authority Commissioner, So, Commissioner. against grievance appellant. aggrieved preferred it. about doubt there simple answer 7 : pertinent does respondents. avail production 14, rule sub-rule added examined basis, On Tribunal assist evidence documentary some decree bee evinced client. his client decide bearing during conceded frankly Krishan Manmohan Mr. adversary up set nor relief right petitioner case, present whom , A proceedings, participate appearing person producing other. band difference essential overlooks argument misconceived. sub ?- based next Act. Viii Chapter 169 etc, taxes assessment out arising appeals example, Act, purposes Xxii 456 general Xvi followed procedure distinguished Legislature way, Chapter. same decided express Regulations, Building Code contained self into converted legislature clear 1984, amendment after Thirdly, 457 down laid procedures powers excludes necessarily purpose specifically established particular especially Appellate provides expressly introduced 343 Section forum substituted 1984 Amending Secondly, applicable? ?made inconsistent Such 4. invoked . Procedure Civil 10 I Order ? peculiar Firstly, applicable Judge District instead

(17) I am in respectful agreement with the views, expressed by brother Saharya, J. in Hardayal Singh (supra).

(18) SUB-RULE I of Rule 14 of the Rules, provides that 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, except in the circumstances, as mentioned in Clauses A to D. In other words, under the aforesaid sub-rule, only the appellant has been given the right to move the Tribunal to produce additional evidence, if he satisfies the conditions, as laid down in Clauses A to D. Sub- ^- rule 2 provides that, In case, the Tribunal decides to allow the production of additional evidence, then, in that case, the Tribunal shall record in writing the reasons for its admission.

(19) SUB-RULE 4 provides, that nothing contained in sub rules I to 3, shall affect the power 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.

(20) In my view, the power under sub-rule 4 can be exercised by the Tribunal in exceptional cases and even sue moto if, the Tribunal is satisfied that the production of any document or the examination of witness is necessary to enable the Tribunal to dispose of the appeal. A.B. Saharya, J. in his judgment In Hardayal Singh (supra), while making reference to sub-rule 4 of Rule 14 observed that, on the basis of this sub-rule, respondent could, if at all, be examined as a witness, but she could not be added as a party to the appeal. While making reference to sub-rule 4, Saharya, J. further observed that the Tribunal may, in the exercise of its power, under Rule 14 (4) of the Rules, might direct such a person to produce any document even, prior to the examination of such a person, as a witness to enable the Tribunal to dispose of the appeal. All this would not justify the addition of such a party, as a party to the appeal. Again, in the same judgment, Saharya, J. observed that respondent no. 4, would therefore, if at all be a witness in the proceedings, or, could furnish any material or information in the appeal. The judgment is crystal clear and it follows that respondent no. 3 has no right of any kind, whatsoever, to participate in the appeal, now pending before the Tribunal, nor respondent no. 3 has any right to address arguments.

(21) I have already observed, that the power under Rule 14 (4), can bo exercised only in such exceptional cases, where the Tribunal is satisfied that the production of document or examination of a witness, is otherwise necessary to enable the Tribunal to decide the appeal.

(22) In my view, generally, this does not give right to the third party to approach the Appellate Tribunal, for either producing the documents or for giving statement before the Tribunal. In its discretion, however, the Tribunal, in exercise of its bower under Rule 14 (4) of the Rules can direct the production of documents and/or examination of a person, as a witness, if the Tribunal is satisfied that this is essential that this will enable the Tribunal to arrive at just conclusion.

(23) By the impugned order, the learned Appellate Tribunal, has only permitted Smt. Nirmala Devi, to produce certain documents on the ground, that the same related to the point in issue. No-doubt, Smt. Nirmala Devi could not participate in the proceedings, but, as the Tribunal has exercised its jurisdiction under Rule 14 (4) of the Rules, I am not inclined to interfere in the exercise of Jurisdiction, under Article 227 of the Constitution of India, as, I do not find any jurisdictional error, in it.

(24) Under the circumstances, the petition is dismissed. No order as to costs.