PAWAN SUKHLAL JAIN Vs. DEPUTY MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) Civil Application (CA) No.621/2023 has been filed by the respondent for permission to file the order of delegation on record. The reason for placing it on record, as is spelt out from the application is inadvertence as is reflected from the language of para 7 therein. The filing of the application is vehemently is opposed by Dr. De, learned counsel for the petitioner, contending that it does not adhere to the requirement of Order 41 Rule 27 of the Code of Civil Procedure (CPC), as according to him the same is attracted, for which, he places reliance upon Sec. 434 of the Maharashtra Municipal Corporation Act (MMC Act), which according to him is an omnibus provision applicable to all appeals before the District Judge. This is further according to him substantiated by the use of the expression "save as expressly provided by this chapter" used in Sec. 434(1) of the MMC Act. In addition to the same, he also relies upon provisions of 141 of CPC, which makes the procedure provided in CPC applicable in all proceedings in any Court of civil jurisdiction. He therefore submits, that mere filing of the application without satisfying the requirement of Order 41 Rule 27 of CPC would not suffice and since the application does not satisfy the said requirement it is required to be rejected.

(2.) Mr. Kasat, learned counsel for the respondent submits, that Sec. 434 of MMC Act is not attracted in the matter at all as according to him Sec. 434 of the Act, forms a part of Chapter XXVI, which relates to proceedings before the District Judge and Magistrate relating to election enquiries and other appeals as indicated therein. It is further contended that Chapter VIII-A of the MMC Act is a complete Code in itself and therefore, the applicability of the provisions of CPC by virtue of Sec. 434 of the Act stand excluded. He further submits, that the appeal under Sec. 81(F)(i) of MMC Act, is to an Appellate Officer and the fact that such Appellate Officer, has to be a District judge or such judicial officer as indicated therein would also indicate the inapplicability of Sec. 434 of the MMC Act on which ground also the applicability of Sec. 141 of the CPC is ruled out.

(3.) In this context, what is material to note, is that Chapter XXVI in which Sec. 434 of the MMC Act is contained is divided into 9 parts, out of which Part 1 relates to the procedure in election enquiries from Ss. 403 to 404. Sec. 405 relates to the reference to the Judge regarding ceasing the Councilor to hold office, removal and disqualification of a Councillor therein; Sec. 406 relates to appeals against valuation and taxes before the Judge; Sec. 410 relates to reference to the District Court; Sec. 411 relates to appeals to the District Court; Sec. 414 relates to the appeals to the Judge from the orders as indicated therein; Sec. 415 relates to appeal against demolition orders; Sec. 416 relates to appeals against the decision of the Judge regarding payment of expenses for works executed. It is therefore, axiomatic that the proceedings under the Chapter XXVI, either lie before the District Judge, Magistrate and it is in this context the provision of Sec. 434 of the Act, has to be construed as is speaks regarding applicability of the CPC to the appeals to the 'Judge' from the orders of the Commissioner. What is necessary to note, is that even Sec. 434, speaks of an appeal against the order of the Commissioner, to the Judge.