DARSHAN SINGH SETHI Vs. SHIMLA MUNICIPAL CORPORATIONSHIMLA

JUDGEMENT

(1.) The petitioner, who owns an immoveable property in Shimla, was served with an order dt. Mar. 16, 1984 passed by the Municipal Commissioner, Shimla, under Section 268 of the Himachal Pradesh Municipal Corporation Act, 1979 (hereinafter referred to as "the Corporation Act") directing him to remove certain unauthorised construction detailed in the said order within three days from the date of the receipt of the order and further intimating that in the event of the petitioner's failure to carry out the direction, further action would be taken in accordance with law. The said order, against which an appeal lies to the Court of the District Judge, Shimla. was served on the petitioner on the evening of Mar. 16, 1984. The petitioner preferred such appeal on Mar. 19, 1984 along with an application for stay. According to the petitioner, the learned District Judge was out of station and he was not likely to return till the end of the month and, under those circumstances, the Court office fixed the appeal for preliminary hearing on Mar. 31, 1984. Meanwhile, on Mar. 24, 1984, the Municipal Officers and servants accompanied by the police reached the spot where the petitioner's property is situate and threatened to proceed with immediate demolition of the alleged unauthorised construction. The petitioner thereupon instituted the present petition and requested for its urgent circulation on the same day. The request was granted. The petition was taken up for urgent hearing and the following is the material portion of the order passed thereupon the same day : - The petitioner has presented the petition in the Court today. In paras 7 and 8 of the petition, it has been stated that the learned District Judge, who is the appellate authority and who has the power to stay the enforcement of the impugned order, is out of station and that, therefore, the petitioner is unable to get interim relief which it is expedient in the interest of justice to obtain because the officers/workers of the respondent-Corporation accompanied by the police have reached the spot for demolition of the disputed premises. Having regard to the statement made oath in paras 7 and 8 of the petition, ad- interim relief against the demolition till the petitioner is able to obtain an appropriate interim relief, if any, from the learned District Judge, Shimla.".

(2.) The petition has now reached preliminary hearing today. The respondent who was duly served is not represented.

(3.) It appears to us that misapprehension is entertained in certain quarters that the jurisdiction to entertain an appeal under Section 268, Sub-section (2) of the Corporation Act, 1979, is conferred only on the District Judge and that such appeal cannot be entertained by an Additional District Judge. The misapprehension, in other words, is that the District Judge is a persona designata so far as the provision relating to the forum of an appeal under Subsection (2) of Section 268 of the Act is concerned. It is, therefore, necessary to ascertain and clarify the true legal position.