Satyen Vaidya, J
1. 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.â€
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.â€
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 Section 253 is an unbridled right
with no rider or exception. There is nothing in the Act which prohibits the filing of the appeal under sub-section (2) of Section 253 of the Act in the
case, where the remedy of review under Section 402-A of the Act has also been availed by the same person. On the other hand, the clog is on the
right to file review, in case the appeal has already been preferred by the same person before seeking the remedy of review. Further, Rule 7 of Order
47 of CPC prohibits the remedy of appeal against an order rejecting the application for review. Learned Appellate Authority in para-8 of the impugned
order has recorded as under:
“8. By filing the present appeal, the appellant is claiming to be aggrieved against both the orders i.e. dated 15.11.2019 and on review of this order
dated 15.11.2019 sought by him and rejected on 08.01.2021.â€
10. Thus, the learned Appellate Authority proceeded to decide the appeal mindful of the fact that the appellant before such authority i.e. the petitioner
herein, had laid challenge to both the orders i.e. the original order passed under Section 253 (1) of the Act on 15.11.2019 and the order dated
08.01.2021 rejecting the application for review.
11. Learned Appellate Authority has rejected the appeal as not maintainable taking cover of the bar created under Rule 7 of Order 47 of CPC.
However, there is no finding on the appeal against the order dated 15.11.2019 passed by the Commissioner directing the demolition of unauthorized
construction raised by the petitioner under sub-section (1) of Section 253 of the Act.
12. As noticed above, the right of appeal under Section 253(2) of the Act is not circumscribed by any other contemporary provisions of the Act. The
result of rejection of review application of the petitioner is that the original order dated 15.11.2019 passed by the Commissioner stood as it is and
retained its original efficacy. Such order would have lost its identity in case the application for review had been granted. Both situations have different
consequences. Therefore, the refusal to grant application of review, will not disentitle the petitioner to avail the remedy to assail the original order
dated 15.11.2019 by way of appeal under subâ€"section (2) of Section 253 of the Act.
13. The matter can be viewed from another angle. There is marked difference in the remedy of appeal and that of review. The review can always be
filed on limited grounds. Since Section 402-A of the Act empowers the Commissioner to review his any order in accordance with the provisions of
Order 47 of CPC, the limitations of grounds for review provided under Order 47 of CPC would apply. Review, under aforesaid provision of law, is
available to any person considering himself aggrieved against an order on account of some mistake or error apparent on the face of the record or who,
from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be
produced by him when the order was passed is able to make out a case. Whereas, the right of appeal is absolute and such right can always be
exercised by assailing the order impugned on the ground of illegality and material irregularity, which can have wide scope.
14. In view of this matter, the 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.
15. In light of the above discussion, the petition is allowed. The order dated 26.02.2022 (Annexure P-21) passed by the Appellate Authority is set-
aside to the extent the learned Appellate Authority failed to exercise jurisdiction to decide the appeal against order dated 15.11.2019 passed by the
Commissioner under sub-section (1) of Section 253 of the Act.
16. Accordingly, the matter is remitted to the learned Appellate Authority to decide the same afresh by deciding the appeal of petitioner against order
dated 15.11.2019 on merits in accordance with law. The proceedings initiated against the petitioner in the year 2006 have not been finally adjudicated
upon even after the lapse of about 16 years. In view of this matter, learned Appellate Authority is expected to decide the matter expeditiously and in
any case not later than 31st July, 2022.
17. Petition is disposed of accordingly, with no order as to costs. Pending miscellaneous application(s) if any, also stands disposed of.
