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2023 Supreme(Del) 1447
IN THE HIGH COURT OF DELHI AT NEW DELHI
Tushar Rao Gedela, J.
Sunder – Appellant
Versus
Municipal Corporation of Delhi – Respondent
CM(M) 745 of 2023
Decided On : 08-05-2023
Mr. Ankit Jain, Advocate with Mr. Vishal Saxena, Ms. Meenakshi Garg, Ms. Seemab Ali Fatima, Ms. Aayushi and Mr. Sanyog, Advocates, for the Petitioner.
Mr. Rakesh Mishra, Standing Counsel, for the MCD.
The Court's decision was influenced by the need to maintain the balance of equities between the parties and to prevent prejudice to the petitioner due to the lack of interim orders under Section 347 C (3) of the DMC Act.
Headnote:
DMC Act - Stay of Demolition - The court directed the respondent not to take any coercive action for demolition of the subject suit premises until the First Appellate Court considers the application under Section 347 C (3) of the DMC Act and passes appropriate orders after hearing both parties.
Fact of the Case:
The petitioner approached the Court against an order whereby a fresh appeal under Section 347-D of the Delhi Municipal Corporation Act, 1957 was received and registered. The First Appellate Court issued notice but did not grant any interim orders and listed the matter for consideration on a later date.
Finding of the Court:
The Court directed the respondent not to take any coercive action for demolition of the subject suit premises until the First Appellate Court considers the application under Section 347 C (3) of the DMC Act and passes appropriate orders after hearing both parties.
Issues: The issue was whether the lack of interim orders from the Appellate Court under Section 347 C (3) of the DMC Act could prejudice the petitioner if demolition was carried out before the appeal was considered.
Ratio Decidendi: The Court found that the non-passing of any order on the application under Section 347 C (3) of the DMC Act could be prejudicial to the petitioner, and to maintain the balance of equities, directed the respondent not to take any coercive action for demolition until the appeal and the application were considered by the First Appellate Court.
Final Decision: The Court directed the respondent not to take any coercive action for demolition of the subject suit premises until the First Appellate Court considers the application under Section 347 C (3) of the DMC Act and passes appropriate orders after hearing both parties.
JUDGMENT
Tushar Rao Gedela, J. (Oral)
[The proceeding has been conducted through Hybrid mode]
CM APPL. 23161/2023 (for exemption)
1. Exemption is allowed, subject to all just exceptions.
2. Application stands disposed of.
CM(M) 745/2023 & CM APPL. 23160/2023 (for stay)
3. Petitioner has approached this Court against the order dated 02.05.2023 in RCA No. 47/2023 titled as "Sh. Sunder vs. Municipal Corporation of Delhi", whereby a fresh appeal under Section 347-D of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "DMC Act") was received and registered.
4. The First Appellate Court after considering the appeal has issued notice, though an application under Section 347 C (3) of the DMC Act, seeking urgent interim orders, is stated to have been filed, however, only notice was issued without passing any orders thereon.
5. On a cursory consideration of the impugned order, it is clear that the Appellate Court has not granted any interim orders either for or against the petitioner and has listed the matter for consideration on 27.05.2023.
6. The non-passing of any order on the application under Section 347 C (3) of the DMC Act, may become prejudicial to the petitioner for the reason that once the demolition is carried out, the entire appeal itself would become infructuous. That possibly cannot be countenanced.
7. In view of the aforesaid, as also to maintain the balance of equities between the parties, this Court, without commenting or observing any issue of fact or law, only to preserve the property, directs the respondent not to take any coercive action for demolition of the subject suit premises only till 27.05.2023 when the learned First Appellate Court would take up the appeal along with the application under Section 347 C (3) of the DMC Act for consideration.
8. It is directed that the learned First Appellate Court considers the application under Section 347 C (3) of the DMC Act and passes appropriate orders thereon after hearing both the parties on 27.05.2023.
9. Needless to state that all rights and contentions of the parties are reserved, which may be taken up before the learned First Appellate Court.
10. With the aforesaid directions, the present petition along with pending application is disposed of.
