IMPORTANT POINT
Section 347D of the Delhi Municipal Corporation Act, 1957 and Section 256 of the NDMC Act, 1994 are unconstitutional.

JUDGMENT

Ganguly, J. —

1. The principal question raised in this appeal is the constitutional validity of Section 347D of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as, ‘the said Act’). Similar provisions are also there in Section 256 of New Delhi Municipal Council Act, 1994 (hereinafter referred to as, ‘the NDMC Act’).

2. The question was raised in a writ petition filed by the appellant who is a journalist by profession and the editor of Urdu Weekly called ‘Lalkar’. In the petition it has been urged that one Shri B.S. Mathur, Additional District and Sessions Judge was appointed the Presiding Officer of the MCD/NDMC Appellate Tribunal in terms of sub-sections (1) and (2) of Section 347 of the said Act. His appointment was made for deciding appeals preferred under Section 343 or Section 347B of the said Act. Shri B.S. Mathur was appointed in Appellate Tribunal to hear and dispose of all appeals from the order passed by the Zonal Engineer (Buildings) of the respective zones of Municipal Corporation of Delhi and that of New Delhi Municipal Council. However, the grievance of the appellant is that orders of the Appellate Tribunal are appealable before the Administrator of Delhi i.e. Lt. Governor under Section 347D of the said Act. The main grievance in the public interest litigation is when an appeal is decided by an Appellate Authority which is manned by a Judge of the Civil Court, appeal from the decision of such authority cannot be heard and by an executive authority, however high such executive authority may be.

3. In order to appreciate this controversy it is necessary to consider the relevant statutory provisions. The provision for constitution of an Appellate Tribunal under Section 347A of the said Act are as follows:-

“347A. 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) The Central Government may, if it so thinks fit, appoint one or more persons having special knowledge of, or experience in, the matters involved in such appeals, to act as assessors to advise the Appellate Tribunal in the proceedings before it, but no advice of the assessors shall be binding on the Appellate Tribunal.

(5) The Central Government shall, by notification in the Official Gazette, define the territorial limits within which an Appellate Tribunal shall exercise its jurisdiction, and where different Appellate Tribunals have jurisdiction over the same territorial limits, the Central Government shall also provide for the distribution and allocation of work to be performed by such Tribunals.

(6) For the purpose of enabling it to discharge its functions under this Act, every Appellate Tribunal shall have a Registrar and such other staff on such terms and conditions of service as may be prescribed by rules :

Provided that the Registrar and staff may be employed jointly for all or any number of such Tribunals in accordance with the rules.”

4. For the purpose of deciding the controversy of this case, the provisions of Sections 343 and 347B are not relevant, but Section 347C which provides for the procedure before such Appellate Tribunal is relevant. Particularly, the provision of 347C sub-section (7) which is relevant for the purpose of deciding the controversy is set out below:-

“Section 347C - Procedure of the Appellate Tribunal -

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(7) Every Appellate Tribunal, shall, in addition to the powers conferred on it under this Act, have the sa