Anonymous
Asked April 17, 2017

Demolition Order stayed

  • 1 Answer
  • 1078 Views

There a civil suit that's pending against the construction that I was planning on my roof of which I have sole ownership in registry but other flat owners filed a case against MCD and McD have ordered for power and electricity cut and demolition afterwards and on court hearing my advocate didn't reach on time and the court has asked MCD to proceed with its order. We filed a application and the court has recalled everyone concerned with the case. Before final judgement or next hearing can MCD still carry out demolition against the recalling order by the court?

Answer 1

The above mentioned matters are dealt with by the MCD Appellate Tribunal as per section 347A of the DMC Act, 1957. Appeals against certain orders or notices issued by the MCD can be filed under section 347B of this Act. As per Section 347A, sub-section (2) the appeal must be filed within thirty days from the date of the order or notice appealed against. Section 347C lays down the procedure which says that after giving the parties an opportunity of being heard, the Appellate Tribunal may pass such orders thereon as it thinks fit, confirming, modifying or annulling the order or notice appealed against or may refer the case back to the authority or officer against whose order or notice the appeal is filed, for a fresh order or notice, after taking additional evidence if necessary, or such other action as the Appellate Tribunal may specify.

However, since the initial order was passed without your side of the case being heard, the order had violated the principle of natural justice to be heard and hence was recalled. The Supreme Court in the case, State Of Punjab vs Davinder Pal Singh Bhullar 1 observed that, “If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity..”

Therefore, the MCD cannot proceed with the demolition before the next hearing or any subsequent order of the court.

Sources:

 https://indiankanoon.org/doc/138575974/

 http://mha.nic.in/sites/upload_files/mha/files/DMC-Act- 1957.pdf

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