FAQIR CHAND Vs. MUNICIPAL CORPORATION OF DELHI

JUDGEMENT

(1.) In these proceedings, this Court is asked under Article 227 of the Constitution to quash and set aside the order of the learned District Judge dated 2-11-1968 dismissing petitioner Faqir Chand's appeal under section 343(2) of the Municipal Corporation Act from the order of the Zonal Engineer (Buildings) of the Municipal Corporation of Delhi dated 27-2-1965 calling upon the petitioner to demolish one room on the first fistrict Judge took the view that from the plans it was clear that only roofs of some rooms had been replaced at the existing height on the first floor. No action could, therefore, be taken for the demolition of the structure on the first floor. In so far as Chhaja on the second floor is concerned, it appeared tthe learned District Judge that it was a later addition and improvement which was not in existence in 1959-60. The production of affidavits of some persons deposing that there was no fresh construction did not impress the learned District Judge, according to whom such affidavits were procurable and they did not guarantee that what was stated therein was true. A notice from the House Tax Department in respect of the proposed assessment in 1967 which was also produced by the appellant before the learned District Judge, was considered to be equally unhelpful because there was a note at the bottom of the notice that the Barsati had been converted into a room. Both the Barsati and the room on the second floor having come into existence after 1959-60, without the requisite permission, they were held to be unauthorised and liable to be demolished. In respect of this structure on the second floor, threfore, the appeal was dismissed.

(2.) Before me, Shri J. M. Lal, the learned counsel for the petitioner Faqir Chand, has questioned the legality of the impugned order. He has drawn my attention to Annexure "K' which is a notice under section 124 of the Delhi Municipal Corporation Act of 1957 in which the increase in the assessment has been stated to be due to the fact that Barsati had been converted into a room. This was the tax assessment for the year 1967-68. The counsel has also referred me to Annexure 'A' dated 1-4-1967, according to which Faqir Chand petitioner wrote to the Zonal Engineer . (Bldg.) that as a result of rainy season, the tin-roof of his house was leaking and that he wanted to replace it with a pucca one with Agra stone slabs. Necessary permission for doing the needful was sought. From this material, it is argued that the order made by the Zonal Engineer on 27-2-1968 and the order of the District Judge on appeal dated 2-11-1968 are tainted with a serious legal infirmity justifying being quashed by this Court under Article 227 of the Constitution.

(3.) On behalf of the respondents the Municipal Corporation of Delhi and the Zonal Engineer, it has been pointed out that the ground of rainy season taken by the petitioner Faqir Chand is an after thought because whereas in Annexure 'A', permission was sought on 1-4-1967 to convert the tin-roof into a pucca one to be built with Agra stone slabs, in the supporting affidavits produced by Faqir Chand(Annexures E/3 to E/7) it was contended that it was during rains in the first fortnight of August, 1967, that the roof of Barsati on the second floor and a room on the first floor fell down. This conflict between Annexure 'A' and the supporting affidavits has been emphasised on behalf of the respondents as proof positive of the falsity of the petitioner's claim. The learned counsel has also relied on two decisions of the Supreme Court in Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, and Syed Hakoob v. K. S. Radhakrishnan and others(2) for the submission that this Court should not interfere under Article 227 of the Constitution. In Nagendra Nath's case, it was observed that under Article 226 of the Constitution, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record, but under Article 227, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority. In Syed Yakoob's case, it was observed that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an Appellate Court. It was added that the argument that some evidence was not duly considered by the Tribunal, would normally pertain to the realm of the appreciation of evidence and would as such be outside the purview of an inquiry in proceedings for a writ of certiorari under Article 226 of the Constitution.