Point of Law: Application for review of judgment - 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.

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 24th 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