Monday, 12 December 2016

Whether appeal is maintainable against order of Chief Officer of municipality directing sealing of premises?

 In the instant case, there is no right of appeal
expressly conferred upon the person aggrieved by the order of
Chief Officer directing sealing of premises passed under Section
184A(1) of the Act, 1968. The appropriate remedy in such a case,
would be a revision application filed under Section 303 of the Act,
1968. The learned Presiding Officer of Municipalities Appellate
Tribunal has ignored the well settled principles of law when he
recorded his finding that the remedy of appeal can be inferred
from the interpretation of Sections 184, 184A and other provisions
of Chapter XII of the Act, 1968. In fact, there is no question of
referring to the other provisions, including the provision of Section
184C(3), as the learned Counsel for the respondent no.3 would
like to do for implying the presence of power to decide appeal filed
against an order passed under Section 184A(1) by the Chief
Officer, in view of the settled principles of law discussed earlier.
It is pertinent to note here that the learned Presiding Officer of
Municipalities Appellate Tribunal in the impugned order has
admitted that there is no express statutory provision laying down
that the appeal shall lie from the order of sealing passed under
Section 184A (please see page 16 of the impugned order) and yet
he has painstakingly carried out the whole exercise to carve out a
right of appeal by implication. The finding recorded in the
impugned order regarding maintainability of appeal against the
order passed by the Chief Officer under Section 184A is perverse
and cannot be sustained in the eye of law.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.830 of 2015
 Shri Dilip Trimbak Alve,

V
The Chief Officer,

 CORAM :- S. B. SHUKRE, J.

 Dated : 10th March, 2016
Citation:2016(5) ALLMR 527


2. By this writ petition, the legality and correctness of the
order dated 03/09/2014 passed by the Goa Municipalities
Appellate Tribunal in Municipal Appeal No.67/2014 is challenged.
Facts of the case, in so far as they are relevant for adjudicating
upon the challenge involved in this petition are stated in brief as
under :
The case of the petitioners is that they are the owners
of shop bearing No.14/482 situated at New Market, Margao, Goa
which is under occupation of the respondent no.3 and in this shop,
the respondent no.3 has, without any permission from the
petitioners or the respondent no.1 Municipal Council, made some
illegal construction/ repairs. According to the petitioners, the
works carried out by the respondent no.3 in the shop qualify to be
termed as construction of a building as contemplated under
Section 184 of the Goa Municipalities Act, 1968 (the Act, 1968, for
short). The petitioners, on noticing the same, made a complaint
dated 10/04/2014 with the respondent no.1 for taking of action
against the respondent no.3. The respondent no.1 conducted site
inspection on 17/04/2014 and prepared a transgression report in
which, the illegal works carried out by the respondent no.3 were
described. On 22/04/2014, the respondent no.1 issued notice to
the respondent no.3 calling upon him to stop the work and show
cause as to why the work should not be demolished or the shop
premises be not sold. The matter was heard by the respondent
no.1 and an order dated 12/05/2014 was passed by the respondent
no.1 directing the Technical Section of Margao Municipal Council
to seal the shop. A further direction was given to it to issue a
show cause notice under Section 184 of the Act, 1968 to the
respondent no.3.
By the order dated 12/05/2014, though sealing of the
shop was ordered, the demolition of the works carried out by the
respondent no.3 which were, according to petitioners, illegal, was
not ordered. Therefore, the petitioners filed a Revision Application
before the respondent no.2, the Hon'ble Minister, under Section
303 of the Act, 1968 seeking specific direction regarding
demolition of the alleged illegal works. An application for
issuance of a direction of status-quo was also filed along with the
Revision Application. An ex-parte order of status-quo was passed
on 25/06/2014 by the Hon'ble Minister. It is not in dispute that
this order is still in operation.
Meanwhile, respondent no.3 also felt aggrieved by the
sealing order dated 12/05/2014 passed by the respondent no.1
and, therefore, he too resorted to proceedings for challenging the
said order. But, the proceedings resorted to by the respondent no.
3 were not in the nature of any Revision Application under Section
303 of the Act, 1968 but, an appeal under Section 184(13) of the
Act, 1968. The petitioners took an objection on the maintainability
of the said appeal. The appeal was heard on the said preliminary
objection as well as on merits and rejecting the preliminary
objection, the learned Presiding Officer of the Tribunal found that
no prima facie case as regards the construction was established
and, therefore, sealing order ought not to have been passed by the
respondent no.1. Thus, allowing the appeal by the order passed
on 03/09/2014, the learned Presiding Officer quashed and set
aside the order dated 12/05/2014 of the respondent no.1 and
directed removal of the seal within 10 days.
The petitioners could not accept the order dated
03/09/2014 passed by the Municipalities Appellate Tribunal and,
therefore, preferred a Second Appeal under Section 184D of the
Act, 1968, being Municipal Appeal No.MIN/UD/44/2014 before the
respondent no.2 together with an application for stay. After
hearing the petitioners, the respondent no.2 passed an order
granting ex-parte stay of the order dated 03/09/2014 of the
Tribunal. The respondent no.3 filed a Writ Petition No.612/2014
before this Court alleging non-action on the part of the respondent
no.1 with regard to giving effect to the order dated 03/09/2014.
When the petitioners pointed out to the Court that the order dated
03/09/2014 was stayed by the Hon'ble Minister, the respondent
no.2, on 29/09/2014, this Court disposed of the petition by
directing the respondent no.2 to decide the Second Appeal within
a period of six weeks from 30/09/2014. The respondent no.2, on
request, was granted further time by this Court for disposing of
the said appeal. The respondent no.2, however, could not do so as
by the judgment dated 04/12/2014 in W.P.No.92/2007, this Court
struck down Section 184D of the Act, 1968, which was the source
of power of the respondent no.2 to hear the appeal against the
order of the Municipalities Appellate Tribunal or the Second
Appeal. Subsequently, the respondent no.2 sent a communication
dated 02/04/2015 to the Advocate of the respondent no.3 that the
respondent no.2 was divested of his jurisdiction under Section
184D of the Act, 1968 in view of the judgment of this Court dated
04/12/2014 passed in W.P.No.92/2007.
The aforesaid communication created a sort of
stalemate in the matter as on one hand, the Second Appeal
preferred by the petitioners could not be decided by the
respondent no.2 and had no immediate prospect of it's being
decided by any competent authority appointed by the Government
and on the other, the stay granted to the effect and operation of
the order dated 03/09/2014 by the order dated 29/09/2014
continued to remain in operation. In order to get over the
impasse, the respondent no.3 filed a Writ Petition being Writ
Petition No.409/2015 to challenge the order of stay dated
29/09/2014 passed by the respondent no.2. After hearing both
sides, this Court allowed the Writ Petition by the judgment dated
20/10/2015. By this judgment, the order dated 29/09/2014 came
to be quashed and set aside and direction was also issued to
respondent no.1 to open the seal within a period of one week. The
additional direction regarding opening of seal within a week's time
was clarified by this Court as forming part of the clause (i) of the
judgment dated 20/10/2015 by which the prayer clause (a) of the
Writ Petition was allowed by an order passed in M.C.A.
No.780/2015 on 28/01/2016.
The effect of the judgment rendered in
W.P.No.409/2015 on 20/10/2015 of this Court was that the order
dated 03/09/2014 was revived which in turn created a peculiar
situation........ of catch 22, this time only in relation to the
petitioners. While the Second Appeal filed by the petitioners could
not be decided for want of competent authority being appointed in
place of Hon'ble Minister to exercise jurisdiction in the matter, the
petitioners could not place their grievance before any authority
under the Act, 1968 for it's being redressed properly. In order to
get over it, the petitioners are before this Court by invoking
supervisory jurisdiction of this Court under Article 227 of
Constitution of India.
3. Shri Nitin Sardessai, learned Senior Counsel submits
that the order dated 12/5/2014 that was challenged by the
respondent no.3 by filing a Municipal Appeal was an order passed
under Section 184A of the Act, 1968 against which, no appeal is
provided. He submits that Section 184(13) of the Act, 1968
provides for an appeal only against an order passed under
subsection (8) of Section 184 by the Chief Officer of the Municipal
Council. The order passed under subsection (8) relates to
stopping of construction and altering or demolishing of
construction. Under subsection (8), learned Senior Counsel
further submits, there is no reference to the power of the Chief
Officer to direct sealing of the disputed premises. Power to seal
disputed or unauthorised constructions, learned Senior Counsel
points out, is provided under Section 184A. Therefore, learned
Senior Counsel submits that the order impugned in this petition is
illegal and without jurisdiction. Learned Senior Counsel further
submits that the law regarding remedy of appeal is well settled,
according to which, an appeal cannot be filed, unless expressly
provided under a Statute with the remedy of appeal itself being a
creation of Statute. He submits that there is no inherent power in
any authority to hear an appeal. In support, he places his reliance
upon the cases of D.M. Taneja Vs. Bhajan Lal; 1988(3) SCC 26
and Smt Ganga Bai Vs. Vijay Kumar and others; 1974(2) SCC
393. Learned Senior Counsel, on merits of the case, submits that
the repairs carried out by the respondent no.3 to the shop in
question amounted to material alternations within the meaning of
Section 184(1) of the Act, 1968 and, therefore, required a
permission from the respondent no.1, which was not taken by the
respondent no.3. On this ground also, he urges that the order is
illegal.
4. Shri Padiyar, the learned Counsel for the respondent
no.1 did not support the impugned order. He submits that no
remedy of appeal has been provided against the order passed
under Section 184A of the Goa Municipalities Act, 1968 and that
the Appellate Tribunal was not empowered to pass the order of
removal of seal, in an appeal, filed under the Act.
5. Shri Ashwin Bhobe, learned Counsel for the
respondent no.3 submits that the power of appeal can be inferred
from the provisions of Section 184A itself and it becomes amply
clear from the provisions of subsection (3)(b) of Section 184A of
Correction carried out
as per order
dt.28/04/16 in MCA
379/16.
 Sd/-
 P.S.
the Act, 1968. He submits that when the Appellate Tribunal has
been conferred with a power to order removal of the seal to be
exercised in an appeal, it is obvious that the Legislature intended
to provide for an appeal against an order passed under Section
184A of the Act, 1968. He further submits that the words "may
prefer the appeal against the order to the Appellate Tribunal"
employed in subsection (13) of Section 184 conferring power upon
the Appellate Tribunal to hear appeal filed against an order of the
Chief Officer passed under subsection (8) must be interpreted as
conveying a meaning that the appeal is provided against any order
of the Chief Officer. He submits that such an interpretation is
further supported by subsection (3) of Section 184C which relates
to power of the Appellate Tribunal to make an interim order after
giving opportunity to the Municipal Council or its Officer. He
submits that care has been taken by the Legislature that during
appeal proceedings, no interim order shall be passed by the
Appellate Tribunal to the prejudice of the Municipal Council or his
Officers, unless opportunity of hearing is granted to it or it's
officers.
6. Learned Counsel further submits that in this case, the
impugned order has not been challenged by the Municipal Council
but, it has been by the petitioners. He submits that by the
impugned order, a direction has been issued to the Municipal
Council for removal of the seals and, therefore, the aggrieved
party in reality is the Municipal Council. According to him, the
petitioners do not have any locus standi to prefer the present Writ
Petition. He also submits that since the proceedings initiated
upon the complaint made by the petitioners have been disposed of
by the Chief Officer finally, the appeal would be maintainable
before the Appellate Tribunal. Thus, he submits that there is no
need to make any interference with the order dated 03/09/2014
impugned herein.
7. On merits of the case, learned Counsel for the
respondent no.3 submits that the Appellate Tribunal has rightly
held that there was no construction of any building requiring any
permission from the respondent no.1. Thus, he submits that there
is no need to make any interference with the impugned order.
8. Upon perusal of the provisions of Chapter XII of the
Act 1968, it is seen that the remedy of appeal has been provided
by the Legislature under Section 184(13) and there is no other
provision apart from subsection (13) which expressly creates any
remedy of appeal in matters as the present one. Section 184(13)
reads as under :
“S.184(13)- Any person aggrieved by an order of the
Chief Officer made under sub-section (8) may prefer
an appeal against the order to the Appellate Tribunal
within the period specified in the order for the
demolition of the construction or work to which it
relates.”
9. It is clear from the language of subsection (13) of
Section 184 that appeal has been provided only against that order
of the Chief Officer which is passed under subsection (8) of
Section 184 of the Act, 1968. Subsection (8) of Section 184 comes
into picture when the Chief Officer, by written notice requires a
person to stop illegal construction and to alter or demolish an
illegal construction already made and specified in the notice. This
subsection further provides that if within 15 days from the service
of said notice, the demolition work is not commenced, the Chief
Officer may cause such work to be done and recover the expenses
incurred therefor from that person. In other words, any order
passed by the Chief Officer regarding stopping of construction or
requiring a person to alter or demolish any construction already
made would only be amenable to challenge in an appeal under
Section 184(13) of the Act, 1968. No doubt, there is also use of
the words "may prefer an appeal against the order to the Appellate
Tribunal" but, the particular word "order" used in this line cannot
be interpreted as referring to any order passed by the Chief
Officer. The word "order" has to be understood in the context in
which it is set and the context is of an order of the Chief Officer
made under subsection (8) of Section 184 of the Act, 1968. So, the
remedy of appeal provided under subsection (13) of Section 184 is
against an order passed by the Chief Officer under subsection (8)
of Section 184 of the Act, 1968. This remedy of appeal has not
been provided against any other orders passed by the Chief
Officer by resorting to the powers under other subsections of
Section 184 or other sections of Chapter XII, including Section
184A of the Act, 1968.
10. The impugned order challenged before the Appellate
Tribunal in Municipal Appeal No.67/2014, was an order passed by
the Chief Officer under Section 184A(1) of the Act, 1968. We have
already seen that no appeal has been specifically provided under
the Act, 1968 against an order passed under Section 184A of the
Act, 1968. According to learned Counsel for the respondent no.1
and respondent no.3, the remedy of appeal can be inferred from
subsection (3)(b) of Section 184 of the Act, 1968. I must say, the
law regarding remedy of appeal is well settled, according to
which, right of appeal cannot be inferred by implication and unless
it is expressly provided in the Statute, power to hear appeal
cannot be impliedly conferred on or assumed by an Authority
under the Statute. This can be clearly seen from Section 184A
which reads as under :
“184A. Power to seal unauthorized constructions-
(1) It shall be lawful for the Chief Officer, at any time,
before or after making the order of demolition or of
the stoppage of the construction under section 184, to
make an order directing the sealing of the premises in
which such construction is being carried on or has
been completed for the purpose of carrying out the
provisions of this Act, or for preventing any dispute as
to the nature and extent of such constructions.
(2) Where any premises in which any construction is
being carried on has been sealed, the Chief Officer
may, for the purpose of demolishing such construction
in accordance with the provisions of this Act, order the
seal to be removed.
(3) No person shall remove such seal except—
(a) Under an order made by the Chief Officer under
sub-section (2); or
(b) under an order of an Appellate Tribunal or the
Government, made in appeal under this Act.”
11. From the plain reading of this Section particularly
subsection 3(b), one can see that the power conferred upon an
Appellate Tribunal or the Government to direct removal of the seal
while deciding an appeal is the power to enable the Appellate
Tribunal to effectively decide the appeal filed before it in
accordance with the provisions of the Act, 1968. That would mean
that the power to order removal of seal can be exercised by the
Appellate Tribunal only when an appeal filed under
Section 184(13) is pending for its adjudication and not otherwise.
Power granted to an Appellate Tribunal to order removal of seal in
exercise of its appellate jurisdiction cannot be stretched to confer
jurisdiction on an Appellate Tribunal to hear an appeal filed
against the order of sealing of premises passed by the Chief
Officer under Section 184A(1) of the Act, 1968. So, the argument
that the power to hear appeal filed against the sealing order
passed under Section 184A can be read in subsection (3)(b) of
Section 184A as inhering in Appellate Tribunal is devoid of any
substance. The well settled principles of law governing the field
would not permit such an interpretation to be made. These
principles lay down that no person has a right of appeal as, unlike
a right to sue which every person inherently possesses, right of
appeal inheres in no one and, therefore, no person can file an
appeal unless remedy of appeal has been clearly created by law.
This position of law has been stated in clear terms by the Hon'ble
Apex Court in the case of Smt. Ganga Bai (supra) which has been
reiterated in the case of D. N. Taneja (supra). A useful reference
to the observations of Hon'ble Apex Court in this regard made in
paragraph 15 of its judgment in the case of Smt. Ganga Bai
(supra) can be made and relevant observations are reproduced
thus :
“15.... There is a basic distinction between the right
of suit and the right of appeal. There is an inherent
right in every person to bring suit of a civil nature
and unless the suit is barred by statute one may, at
one's peril, bring a suit of one's choice. It is no
answer to a suit howsoever frivolous the claim, that
the law confers no such right to sue. A suit for its
maintainability requires no authority of law and it is
enough that no statute bars the suit. But the position
in regard to appeals is quite the opposite. The right
of appeal inheres in no one and therefore an appeal
for its maintainability must have the clear authority
of law. That explains why the right of appeal is
described as a creature of statute.”
12. Even in the case of Muni Suvrat Swami Jain S.M.P.
Sangh Vs. Arun Nathuram Gaikwad and Ors.: AIR 2007 SC 38
referred to me by learned Counsel for the respondent no.3, the
Hon'ble Apex Court has reiterated the aforestated principles of
law when it referred to observations made in the case of G. J.
Kanga, Administrator of Municipal Corporation, Greater
Bombay and another Vs. S. S. Basha; 1992(2) Mh.L.J. 1573,
wherein it has been held that the provisions of appeal, revision or
review cannot be inferred by implication and that they have to be
provided for in specific terms. For these very reasons, the
argument that right of appeal is available as the order dated
12/05/2014 finally disposes of the proceedings would have to be
rejected and is rejected.
13. In the instant case, there is no right of appeal
expressly conferred upon the person aggrieved by the order of
Chief Officer directing sealing of premises passed under Section
184A(1) of the Act, 1968. The appropriate remedy in such a case,
would be a revision application filed under Section 303 of the Act,
1968. The learned Presiding Officer of Municipalities Appellate
Tribunal has ignored the well settled principles of law when he
recorded his finding that the remedy of appeal can be inferred
from the interpretation of Sections 184, 184A and other provisions
of Chapter XII of the Act, 1968. In fact, there is no question of
referring to the other provisions, including the provision of Section
184C(3), as the learned Counsel for the respondent no.3 would
like to do for implying the presence of power to decide appeal filed
against an order passed under Section 184A(1) by the Chief
Officer, in view of the settled principles of law discussed earlier.
It is pertinent to note here that the learned Presiding Officer of
Municipalities Appellate Tribunal in the impugned order has
admitted that there is no express statutory provision laying down
that the appeal shall lie from the order of sealing passed under
Section 184A (please see page 16 of the impugned order) and yet
he has painstakingly carried out the whole exercise to carve out a
right of appeal by implication. The finding recorded in the
impugned order regarding maintainability of appeal against the
order passed by the Chief Officer under Section 184A is perverse
and cannot be sustained in the eye of law.
14. Once it is found that the appeal filed by the respondent
no.3 before the Municipalities Appellate Tribunal in this case, was
not maintainable, the order passed in such an appeal would also
have to go and then there would not be any need for dealing with
the arguments of both sides on merits of the case. The judgment
of the Hon'ble Apex Court in the case of Muni Suvrat Swami
Jain (supra) pressed into service by the learned Counsel for the
respondent no.3 for demonstrating the fact that the sealing order
passed by the Chief Officer was not in accordance with the
provisions of Goa Municipalities Act, 1968 being related to merits
of the matter can also not be considered in these circumstances.
As regards the argument of absence of locus standi of the
petitioner to file a writ petition, I must say, it deserves rejection
outrightly as in a case of this nature who else than the landlord
could be said to be affected by the impugned order and it is
rejected accordingly.
15. In the circumstances, the Writ Petition deserves to be
allowed. The Writ Petition stands allowed. The impugned order is
hereby quashed and set aside.
16. Rule is made absolute in the above terms. No costs.
 S. B. SHUKRE, J.

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