Davindra Mahey vs Commissioner South Delhi ...
2021 Latest Caselaw 2796 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                Pronounced on: 7th October, 2021

+                                       CM (M) 409/2021

        DAVINDRA MAHEY                              ..... Petitioner
                   Through: Mr. Anil Kumar Aggarwal, Prof.
                            Madan Mohan and Mr. Rohan
                            Mehra,           Advocates            for
                            revisionist/petitioner.

                                        Versus

    COMMISSIONER, SOUTH DELHI MUNICIPAL
    CORPORATION                           ....Respondent
                  Through: Mr. Siddhant Nath, ASC for
                           SDMC.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON

                                   JUDGMENT

REVIEW PETITION NO.128/2021

1. This Review Petition has been filed by the petitioner in CM (M) 409/2021 seeking review of the judgment dated 4th August, 2021, whereby the petition was dismissed.

2. It may be mentioned here that the petitioner, being the owner in possession of Flat No.2206, in Pocket-2, Sector-C, Vasant Kunj, New Delhi, (in short, "suit premises") had filed a suit bearing No. CS SCJ 33/2021 seeking injunction against the respondent/South Delhi Municipal Corporation (SDMC) from demolishing the suit premises, in terms of its

order dated 15th December, 2020. The learned Trial Court vide order dated 8th January, 2021 had found no prima facie case in favour of the petitioner and dismissed the application seeking ex-parte injunction against the respondent/SDMC from demolishing the construction carried out by the petitioner in the suit premises. The petitioner filed an appeal thereagainst which was also dismissed by the judgment dated 24 th March, 2021 of the learned Additional District Judge (ADJ). Aggrieved thereby, the petition i.e., CM(M)409/2021 was filed, which, as noticed, was dismissed vide judgment dated 4th August, 2021.

3. By means of this Review Petition and as submitted by Mr. Anil Kumar Aggarwal, learned counsel for the petitioner, the judgment dated 4th August, 2021 was liable to be reviewed. According to the learned counsel for the petitioner, this Court had misinterpreted the judgments of the Supreme Court in M.C. Mehta Vs. Union of India & Ors. (2005) 2 SCC 186 and Shiv Kumar Chadha Vs. Municipal Corporation of Delhi & Ors. (1993) 3 SSC 161 by observing that the Supreme Court has not circumscribed the powers of the SDMC or the Commissioner in dealing with unauthorized construction. Reliance has been placed by the learned counsel on the decision of a Division Bench of this Court in Sh P.L. Mehra v. Sh D.R. Khanna, 1970 SCC OnLine Del 203 to submit that this Court has misdirected itself in observing that it could not look into the question of ultra vires of the provisions in question because according to the learned counsel, if a provision was unconstitutional, nobody including the Courts could give effect to the same, as all are bound by the Constitution. Every court was bound to construe a statute in the context

of the Constitution and consider whether it conflicts with it. According to the learned counsel for the petitioner, once the Constitution had been amended to incorporate Part IX A, relating to Municipalities, and Article 243W provided specifically for vesting of powers and authority as well as responsibilities of Municipalities particularly in relation to matters listed in the Twelfth Schedule, which included construction of buildings, the Municipal Corporation being the elected body alone, and not the Commissioner could issue the impugned notices. According to the learned counsel, even without looking to the vires of Section 330A of the Delhi Municipal Corporation Act, 1957 (for short, "DMC Act"), this court had to consider the issuance of the impugned notice as unconstitutional and restrain the SDMC from acting on its order dated 15th December, 2020.

4. It was submitted that under the provisions in Section 330A and 349A of the DMC Act, the Commissioner cannot claim to be authorized to act on behalf of the Corporation or the Municipality to regulate construction of buildings under Chapter XVI of the DMC Act and this provision was violative of the Constitution of India. It was submitted that the decision of this Court tantamounted to conferring of uncontrolled power to the Commissioner by denying to the people their democratic rights to go and get redressal of their grievances against the Commissioner. It was further submitted that this Court had failed to consider that the judgement in Shiv Kumar Chadha's (supra) case had been delivered in a case arising prior to the commencement of Part IX-A of the Constitution of India and once the amendment has been made to

the Constitution, it was the elected body constituting the Corporation which alone had the power to regulate construction.

5. Similarly, this Court had not considered that the "Standard Plan of the DDA", not being approved and sanctioned under the DMC Act was a non-statutory piece of paper and which could not be relied upon to determine excess coverage or construction and could not form the basis for taking any coercive action against the building of the petitioner. Finally, it was submitted that because the petitioner was aware of the extent of construction, that fact would not vest the Commissioner with the jurisdiction to determine excess coverage.

6. The learned counsel also submitted that this Court had not considered the effect of the observations of the learned ADJ on the question that was still pending before the learned Trial Court in respect of the maintainability of the civil suit. The learned counsel argued that the learned Trial Court had first to determine that it had jurisdiction and thereafter decide the relief of injunction. The observations on the constitutionality of the provisions as recorded in the orders of the learned Appellate Court had gravely prejudiced the petitioner as the question of maintainability of the suit was still pending before the learned Trial Court. Learned counsel submitted that this Court ought to have set aside the orders of the courts below, remanding the matter back to the learned Trial Court directing it to first decide the jurisdictional issue. The learned counsel for the petitioner has also relied on the judgment of this Court in STC of India Ltd. v. Govt. of Peoples Republic of Bangladesh, 1996 SCC OnLine Del 596.

7. Mr. Siddhant Nath, learned counsel for the respondent/SDMC appearing on advance notice submitted that new arguments had been pressed at the stage of review. A new argument has been raised, particularly that the Trial Court should have decided the jurisdiction first and then the injunction application. The learned counsel also pointed out that the prayer in the petition mentioned nothing as to a decision on jurisdiction first and it had only sought that the interim injunction be granted allowing the application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 (CPC). It was submitted that these questions were not raised when the petition was originally argued. Further, it was submitted that while filing the present Review Petition, the petitioner had suppressed and concealed the fact that a Writ Petition under Article 226 of the Constitution of India had been filed on the same facts and as such this petition was liable to be dismissed outrightly.

8. It was further submitted that the Commissioner had acted within the four corners of the law, particularly under Section 343 of the DMC Act. It was pointed out again that despite certain provisions in the DMC Act having been deleted post the amendment of the Constitution in 1993, Section 330A had been introduced contemporaneously, clearly indicating legislative intent. It was submitted that no court had held that the Commissioner had no powers to issue notice against unauthorized construction or pass orders for its demolition.

9. In response, the learned counsel for the petitioner submitted that the fresh Writ Petition had been filed for a writ of quo warranto and had no bearing on this petition as the court exercised different powers under

Article 227 and under Article 226. It was further submitted that Chapter XVI of the DMC Act has a non-obstante clause which would include Section 343 of the DMC Act and therefore the argument of the learned counsel for the respondent/SDMC that action has been taken as per law, particularly under Section 343 of the DMC Act was completely misplaced.

DISCUSSION

10. This Review Petition has been titled as one "under Article 215 of the Constitution of India read with Order XLVII of the CPC" and seeks review of the judgment dated 4th August, 2021.

11. The purpose of the invocation of Article 215 of the Constitution of India which declares the High Courts to be Courts of record with all the powers including the power to punish for contempt of itself, is unclear. However, since the petitioner has sought the review of the order dated 4 th August, 2021, the Court must consider the parameters as provided under Order XLVII of the CPC as amended, to deal with the present application.

12. Order XLVII Rule 1(i) of the CPC reads as under:

"1. Application for review of judgment.--(1) Any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order".

13. The Supreme Court in various judgments has repeatedly held that the jurisdiction of review is not that of an appeal and such an application can be entertained only if there is an error apparent on the face of the record. There must be a material error on the face of the order which may result in miscarriage of justice. The error which is not self-evident and has to be detected by a process of reasoning cannot be described as an error apparent on the face of the record justifying the Court exercising powers of review. That would be an appeal in the disguise of a Review Petition. Review cannot be sought in a hope that the Court would substitute its earlier view.

14. A review cannot be a re-hearing of the original matter. Thus, an applicant cannot seek the same relief which had been sought at the time of arguing of the main matter and which has been rejected. It would be apposite to reproduce the observations of the Supreme Court in Kamlesh Varma Vs. Mayawati & Ors. (2013) 8 SCC 320 where the principles governing review have been succinctly stated as below:

"Summary of the principles

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram Vs. Neki AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India Vs. Sandur Manganese & Iron Ores Ltd. (2013) 8 SCC

337.

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

15. The present Review Petition does not disclose any error apparent on the face of the record. The issues relating to the lack of jurisdiction with the Commissioner on account of the constitutional amendment was earlier urged and dealt with by this Court. The learned counsel for the petitioner has sought to repeat the same arguments over and over again which is not permissible. An attempt has also been made to overcome the observations of this Court in para-No.15 of the judgment dated 4th August, 2021 whereby the contentions regarding the Standard Plan of the DDA were rejected. In para-Nos.17 and 19, the questions raised regarding the constitutional validity of the provisions namely Section 330A of the DMC Act in the light of the Article 243W were considered within the limited scope of a petition under Article 227 of the Constitution of India, where once again the Court was not exercising appellate jurisdiction. Arguments advanced now seek to overcome the observations of this Court in the judgment dated 4 th August, 2021. But

such submissions cannot constitute grounds as are provided under Order XLVII Rule I CPC.

16. Efforts have been made to further explain the Supreme Court decisions by submitting that in M.C. Mehta's (supra) case, the Court had not observed anything in favour of the Commissioner and therefore it was incorrectly held by this Court that the judgment did not circumscribe the powers of the Commissioner. It was further submitted that Section 476(1)(e) of the DMC Act itself empowers the Commissioner to represent the Municipal Corporation and as such directions being issued to him could not tantamount to vesting him with powers to deal with unauthorized construction. But these explanations do not amount to the existence of errors in the judgment dated 4th August, 2021. In fact, the learned counsel has sought to reargue his original petition, which is impermissible. Though learned counsel was heard at length on this Review Petition, no new fact has been urged. However, a new prayer/relief has been sought, namely, the remand of the matter to the learned Trial Court to decide the question of jurisdiction first.

17. It is interesting to note the submissions of the learned counsel for the petitioner now advanced that this Court ought to quash the orders of the learned Trial Court and the learned Appellate Court and direct the re- hearing of the matter in sequence i.e., first to determine the jurisdiction and thereafter the injunction application, though reliance has been placed on the decision of this Court in State Trading Corporation of India Ltd. (supra) that even while the question of jurisdiction was under consideration, interlocutory orders could be passed.

18. However, in the present case, the petitioner has sought interim relief which was declined. The Appellate Court upheld the exercise of discretion and this Court found no error in either of the decisions in exercise of powers under Article 227 of the Constitution of India. In the original petition, the prayer was for grant of interim injunction under Order XXXIX Rules 1 and 2 CPC. He has sought to modify the prayers originally made in the petition under Article 227 of the Constitution of India by now seeking a remand for re-determination. Prejudice has also been urged as a new ground. Learned counsel has sought to justify the new prayer alleging grave injustice in the learned Trial Court rejecting the injunction without first deciding jurisdiction.

19. None of the grounds urged before this Court satisfy the requirements of Order XLVIII CPC. Guided by the principles enunciated by the Supreme Court in Kamlesh Varma (supra), this is not a fit case, as no reason exists, for reviewing the judgment dated 4th August, 2021.

20. The petition is devoid of merit and is accordingly dismissed along with the pending applications.

21. The judgment be uploaded on the website forthwith.

(ASHA MENON) JUDGE OCTOBER 07, 2021 „bs‟