Point of Law : Exercise of right to seek review of an order, if rejected, will not bar the remedy to file appeal under Section 253 (2) of the Act subject of course to the law of limitation as made applicable thereto.

ORDER :

By way of instant petition, petitioner has prayed for following reliefs :

“It is therefore, respectfully prayed that this petition may kindly be allowed throughout with costs and the impugned orders dated 15.11.2019 and 08.01.2021 passed by the respondent-Corporation and order dated 26.02.2022 passed by the learned Additional District Judge (CBI), Shimla in case No.1-S/14 of 2021, Raj Kumar Sood versus The Municipal Commissioner may kindly be quashed and set-aside and the proceedings initiated against the petitioner may kindly be dropped and justice be done.”

2. Petitioner faced proceedings under the Himachal Pradesh Municipal Corporation Act, 1994 (for short ‘Act’) with the allegations that he had raised unauthorized construction. The chequered history of the case reveals that twice the demolition orders were passed by the Commissioner under the Act against petitioner and both the times such orders were set-aside in appeal. The matter was remanded to the Commissioner every time. Third time the Commissioner again passed the demolition order against the petitioner under Section 253 of the Act, on 15.11.2019. Petitioner instead of filing appeal under Section 253 (2) of the Act, preferred a review under Section 402-A of the Act, before the Commissioner. The review application of the petitioner was rejected by the Commissioner on 08.01.2021.

3. Petitioner approached the District Judge, Shimla exercising the powers of Appellate Authority under Section 253 (2) of the Act by way of an appeal with the following prayer :

“It is, therefore, prayed that this appeal be allowed and the impugned orders passed by learned Commissioner, Municipal Corporation, Shimla in Review Petition case No. 303/Mukhiya/2020 decided on 8.1.21 which affirmed the order passed in case No. 116/Summon/18 decided on 15.11.2019 with a prayer to set aside the said orders and the notice No. 91 dated 25.11.2006 be dropped and in alternative if documents filed by respondent are found to be misplaced then the case of the appellant may be treated and decided as per provisions of the notification dated 20.11.2006 issued by Town and Country Planning Department vide notification No. TCP-F(5)/2004 dated 20.11.2006 which applies to the case of the appellant and the said plan be sought from the appellant in the interest of justice and fair play.

Any other relief to which the appellant is found entitled in the facts and circumstances of the present case be granted in favour of the appellant and against the respondent.”

4. The appeal was assigned for disposal to learned Additional District Judge (CBI), Shimla (for short ‘Appellate Authority’).

5. The Appellate Authority has dismissed the appeal of the petitioner on 26.02.2022 (Annexure P-21) being not maintainable on the ground that the petitioner had availed the remedy of review under Section 402-A of the Act and the order rejecting review is not appealable by virtue of Rule 7 of Order 47 of the Code of Civil Procedure (for short ‘CPC’). Hence this petition.

6. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

7. Section 402-A of the Act vests the Commissioner with power to review the order passed by him under the Act in accordance with the provisions of Order 47 of CPC and to modify or reverse the same accordingly.

8. Section 253 (2) of the Act provides a right to any person, who is aggrieved against the order of the Commissioner made under sub-Section (1) of Section 253, to prefer an appeal against such order to District Judge within the period specified in the order for the demolition of the erection or work to which it relates. Sub Section (5) of Section 253 of the Act makes the order passed by the Commissioner under sub-section (1) of Section 253 subject to the order passed by the District Judge in appeal in sub section (2) of Section 253 of the Act.

9. The perusal of the provisions of the Act reveals that the right of a person to file an appeal under sub-section (2) of