Dismissed¶58

Ajay Gupta and Another v. Mc Shimla

Himachal Pradesh HC3 Sept 2024CMPMO/250/2024

Case brief

AI extract

What is this about?

Article 227 supervisory jurisdiction; restrictive and limited interference; grave dereliction of duty; flagrant abuse; unauthorized construction; CGI sheets; 7th floor; Nitin Cottage; Himachal Pradesh Municipal Corporation Act, 1994 — Sections 242, 253, 254(1); stop-work notice; ex parte proceedings; Order 5 Rule 17 CPC service by affixation; legal heirs; Sadhana Lodh v. National Insurance Co. (2003)3 SCC 524; Garment Craft v. Prakash Chand Goel (2022)4 SCC 181; MC Shimla / Municipal Corporation Shimla; CMPMO; petition dismissed.

What did the court decide?

The construction raised by the petitioners was unauthorized and they had no valid sanction for it; despite a stop-work notice in the first instance they continued the illegal act, and during the trial-court proceedings they were duly served yet chose not to participate. ¶56

Ajay Gupta and Another Vs Mc Shimla — Writ and Judicial Review | Himachal Pradesh HC (2024)

What the court decided

AI extract

Outcome

Dismissed

¶58

Issue for consideration

Whether there was any ground for interference under Article 227 of the Constitution of India with the first Appellate Court's judgment dated 10.04.2024, which had rejected the appeal against the ex parte judgment dated 06.05.2023 concerning the unauthorized construction. +1 more

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Court's answer

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Ratio / Principle

Despite service — including service by the Process Server by affixation in terms of Order 5 Rule 17 CPC — the petitioners failed to appear before the Commissioner, Municipal Corporation, Shimla, and were therefore rightly proceeded against ex parte; the judgment dated 06.05.2023 (Annexure P-3) was rightly passed.

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Key takeaways

Drawing on the Supreme Court expositions in Sadhana Lodh and Garment Craft, this Court holds that its jurisdiction under Article 227 of the Constitution of India is restrictive and limited — exercisable only to set right grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice — and does not extend to acting as an appellate court or re-weighing evidence.ratio¶53
In the facts and circumstances of the case, the Appellate Court acted well within its jurisdiction in passing the impugned judgment dated 10.04.2024, and no ground for interference under Article 227 of the Constitution of India was made out.ratio¶57

Detailed headnote1 paragraphs

High Court of Himachal Pradesh, Shimla (Bipin Chander Negi, Judge, oral), CMPMO No.250/2024, decided 03.09.2024 — Petition under Article 227 of the Constitution by Ajay Gupta & Anr., legal heirs of late Sh. Kuldeep Chand Gupta, against the first Appellate Court's judgment dated 10.04.2024 rejecting their appeal from the Commissioner, Municipal Corporation, Shimla's judgment dated 06.05.2023 (Annexure P-3) in proceedings over unauthorized construction: CGI sheets laid over 10.20 x 8.80 = 89.76 sq. meters on the 7th floor of Nitin Cottage without prior approval or sanction, as borne out by PUC No.1609/AP/2014 and PUC No.1831/Com/14 dated 16.07.2014. After a stop-work notice under Section 254(1) and a notice under Sections 253 and 242 of the Himachal Pradesh Municipal Corporation Act, 1994 (No.52 dated 24.07.2014), the predecessor appeared on 02.08.2014 but died on 18.12.2016; the petitioners appeared on 29.09.2018 seeking time, were served by affixation under Order 5 Rule 17 CPC for 17.05.2019, did not appear, and were rightly proceeded against ex parte. Relying on Sadhana Lodh v. National Insurance Co. Ltd., (2003)3 SCC 524, and Garment Craft v. Prakash Chand Goel, (2022)4 SCC 181, the Court held that its supervisory jurisdiction under Article 227 is restrictive and limited — confined to setting right grave dereliction of duty, flagrant abuse, or violation of fundamental principle of law or justice, not appellate re-appreciation of evidence — found no ground for interference, and dismissed the petition along with pending application(s).

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2024:HHC:7842

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No.250/2024. Date of Decision: 03^rd September, 2024.

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Ajay Gupta & Anr. .....Petitioners Versus MC Shimla. ….Respondent Coram

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The Hon’ble Mr. Justice Bipin Chander Negi, Judge.

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Whether approved for reporting?¹

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For the Petitioners: Mr. Adarsh K. Vashista, Advocate.

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For the Respondent: Mr. Mukul Sood, Advocate.

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Bipin Chander Negi, Judge (oral).

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Heard counsel for the parties and perused the

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record.

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2. The unauthorized construction raised by the petitioners on the 7^th floor of the building in question, is evident from the record of the Municipal Corporation, Shimla HP i.e. PUC No.1609/AP/2014 dated 16.07.2014 and PUC No.1831/Com/14 dated 16.07.2014.

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3. Admittedly, the aforesaid unauthorized construction

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is without prior approval and sanction from the competent authority. The petitioners, in the case at hand, were found to have raised unauthorized construction by laying CGI

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Sheets over an area measuring 10.20 x 8.80 = 89.76 sq.

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meters on the 7^th floor of the building.

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Whether reporters of Local Papers may be allowed to see the judgment? Yes

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2024:HHC:7842

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4. Initially the Municipal Corporation, Shimla issued notice No.MCS/Comp-14 dated 17.07.2024 under Section 254(1) of the Himachal Pradesh Municipal Corporation Act, 1994, directing the petitioners to stop construction on the 7^th floor. Since the petitioners did not pay heed to the aforesaid notice and they continued with unauthorized construction, therefore, one notice under Sections 253 and 242 of the Himachal Pradesh Municipal Corporation Act, 1994, bearing No.52 dated 24.07.2014 was issued to the petitioners with requisite details and description of the illegal unauthorized construction being raised in the 7^th Floor of the building i.e. Nitin Cottage.

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5. From a perusal of the record, it is evident that initially the predecessor in interest of the present petitioners i.e. late Sh. Kuldeep Chand Gupta had put in appearance on 02.08.2014 before the Municipal Corporation, Shimla in pursuance to the notices issued in the case at hand. On the said date, time was afforded to late Sh. Kuldeep Chand Gupta to file reply. The same is evident form order dated 18.12.2015. Said late Sh. Kuldeep Chand Gupta had died on 18.12.2016.

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6. Notices were issued to the present petitioners being

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legal heirs of deceased-Kuldeep Chand Gupta. The

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2024:HHC:7842

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petitioners in pursuance to notices issued, had appeared before the Municipal Corporation, Shimla on 29.09.2018 through their counsel and had sought time to file reply. Thereafter, vide order dated 17.05.2019, they had been proceeded against ex parte.

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7. For 17.05.2019, yet again the petitioners had been served by the Process Server, by way of affixation, in terms of provisions of Order 5 Rule 17 of CPC. Since despite service, petitioners failed to appear and put forth the case before the Commissioner, Municipal Corporation,

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Shimla, hence, they were rightly proceeded against ex parte and the impugned judgment dated 06.05.2023 (Annexure P-3) was rightly passed.

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8. Appeal preferred against the aforesaid judgment dated 06.05.2023 was correctly rejected vide impugned judgment dated 10.04.2024, as no ground for interference was pointed out before the first Appellate Court.

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9. Article 227 of the Constitution reads as under:-

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“227. Power of superintendence over all courts by the High Court.

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(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.

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(2) Without prejudice to the generality of the foregoing provisions, the High Court may—

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2024:HHC:7842

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(a) call for returns from such courts;

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(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

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(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision or any law for the time being in force, and shall require the previous approval of the Governor.

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(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.”

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10. The scope of jurisdiction of High Court under Article 227

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of the Constitution has been expounded by the Hon'ble Supreme Court as under:

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(i) In Sadhana Lodh vs. National Insurance Co.

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Ltd. & another, (2003)3 SCC 524, it has been held as under:-

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“7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or

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2024:HHC:7842

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re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision.”

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(iii) In Garment Craft vs. Prakash Chand Goel,

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(2022)4 SCC 181 , it has been held as under:-

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“15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute conclusion, for its own that of decision the on facts inferior court and or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.”

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11. Thus, from the above stated exposition of law, it is clear that this Court has restrictive and limited jurisdiction to interfere under Article 227 of the Constitution of India, except to set right grave dereliction of duty or flagrant abuse or violation of fundamental principle of law or justice.

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2024:HHC:7842

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12. In the case at hand, the construction raised is unauthorized. The petitioners had no valid sanction for raising the same. Despite a stop work, notice in the first instance, they continued with their illegal act in utter disregard of the law. During the proceedings before the trial Court, they were duly served. Despite service they choose not to participate therein.

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13. In the facts and attending circumstances of the case at hand, the Appellate Court was well within its jurisdiction in passing the impugned judgment dated 10.04.2024. No ground for interference under Article 227 of the Constitution of India is made out, in the case at hand.

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14. In view of the aforesaid, present petition is dismissed being devoid of merit and so also the pending application(s), if any.

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03^rd September, 2024 (Gaurav Rawat)

Procedural history

How this case reached the court

AI extract

Order under challenge
Judgment dated 10.04.2024 of the first Appellate Court rejecting the appeal against the judgment dated 06.05.2023 (Annexure P-3) passed by the Commissioner, Municipal Corporation, Shimla in the unauthorized construction proceedings.¶30
First Appellate Court · 10.04.2024
Prior proceeding
Record of the Municipal Corporation, Shimla (PUC No.1609/AP/2014 dated 16.07.2014 and PUC No.1831/Com/14 dated 16.07.2014) showed the petitioners had raised unauthorized construction on the 7th floor of the building (Nitin Cottage) by laying CGI sheets over 10.20 x 8.80 = 89.76 sq. meters.¶12
Prior proceeding
Stop-work notice No.MCS/Comp-14 dated 17.07.2024 (year as printed) under Section 254(1) of the Himachal Pradesh Municipal Corporation Act, 1994 directed the petitioners to stop construction on the 7th floor; as they continued, a further notice under Sections 253 and 242 of the said Act, bearing No.52 dated 24.07.2014, was issued with details of the unauthorized construction on the 7th Floor of Nitin Cottage.¶21
Prior proceeding
Predecessor-in-interest late Sh. Kuldeep Chand Gupta appeared on 02.08.2014 before the Municipal Corporation, Shimla pursuant to the notices; time was afforded to file reply (evident from order dated 18.12.2015); he died on 18.12.2016.¶22
Prior proceeding
Notices were issued to the present petitioners as legal heirs of deceased Kuldeep Chand Gupta; they appeared on 29.09.2018 through their counsel and sought time to file reply; thereafter, vide order dated 17.05.2019, they were proceeded against ex parte.¶27
Prior proceeding
For 17.05.2019 the petitioners were served by the Process Server by affixation in terms of Order 5 Rule 17 CPC; despite service they failed to appear before the Commissioner, Municipal Corporation, Shimla, were proceeded against ex parte, and the judgment dated 06.05.2023 (Annexure P-3) was passed.¶29
Prior proceeding
The petitioners' appeal against the judgment dated 06.05.2023 was rejected by the first Appellate Court vide judgment dated 10.04.2024.¶30

Ajay Gupta and Another v. Mc Shimla

Case brief

What is this about?

What did the court decide?

Ajay Gupta and Another v. Mc Shimla

Case brief

What is this about?

What did the court decide?

What the court decided

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