United Taxi Operators Co-operative (Urban) Thrift and Credit Society Ltd. and anr. Vs. Municipal Corporation of Delhi - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - (hereinafter referred to as the esso) for installing a petrol pump there and letting it out to the said society on the terms and conditions set out in the agreement dated 20th october, 1960 (annexure 'a' to the petition). the esso, therefore, approached the various authorities for permission to instal a consumer filling station for the society and permission was accorded by them as well as by the district magistrate, delhi, for such installation. the allegations in the petition proceed that no building or shed was constructed on the said plot of land, that the petitioners from 1962 till date peacefully enjoyed the benefits of the said consumer filling station, that the officials of the respondent have been visiting the site and threatening the demolition of the installations on the ground that the same had been built in contravention of the building laws of the municipal corporation of delhi, and that despite representations by the esso the respondent has ordered dismantling of the petrol pump. the sense of orderly living in cities and the aesthetic sense of a modern man will be shocked if such like structures are allowed to come up unregulated. such statutes must be construed in such a manner as will best effectuate their purpose and protect their intended beneficiaries. prakash narain's argument would be best demonstrated by an illustration: suppose a person digs four underground cellars and plasters the same with cement from the top towards the bottom, it would be a full-fledged structure like a house and yet on the process of reasoning advanced by mr.s.k. kapur, j.1. the first petitioner united taxi operators co-operative (urban) thrift and credit society limited, is a co-operative society of taxi operators, and the second petitioner is the secretary of the said society. they have filed this writ petition praying for a direction to the respondent, municipal corporation of delhi, restraining them from dismantling the petrol pump located at e.2/1, east patel nagar, new delhi, or from discontinuing the electric connection installed at the said petrol pump. it is alleged that in pursuance of an agreement entered into in 1960 between the said society and the standard vacuum oil company, now known as esso standard eastern inc., the said company obtained on lease a plot of land measuring 30' x 60' situate at e.2/1, east patel nagar, new delhi, on a monthly rent of rs. 275 from one dewan siri ram puri. this lease was taken by the esso standard eastern inc. (hereinafter referred to as the esso) for installing a petrol pump there and letting it out to the said society on the terms and conditions set out in the agreement dated 20th october, 1960 (annexure 'a' to the petition). the esso, therefore, approached the various authorities for permission to instal a consumer filling station for the society and permission was accorded by them as well as by the district magistrate, delhi, for such installation. after the accord of sanction, mentioned above, the esso fitted an underground storage tank in the said area and installed a petrol pump thereon.immediately thereafter, the esso submitted an application to the respondent for supply of electric energy to work the petrol pump, which was granted and electricity connection given. it is further alleged that electricity is still being supplied at the petrol pump and bills therefor regularly paid. the allegations in the petition proceed that no building or shed was constructed on the said plot of land, that the petitioners from 1962 till date peacefully enjoyed the benefits of the said consumer filling station, that the officials of the respondent have been visiting the site and threatening the demolition of the installations on the ground that the same had been built in contravention of the building laws of the municipal corporation of delhi, and that despite representations by the esso the respondent has ordered dismantling of the petrol pump.2. the matter came up for hearing before shamsher bahadur, j. who thought that the contention urged on behalf of the petitioners, namely, that the underground filling station with no structure over the ground is not a building as defined in sub-section (3) of section 2 of the delhi municipal corporation act, 1957, and, therefore, they have no authority to interfere with the said structure, raised a point of importance, on which there was no direct authority and, therefore, should be decided by a larger bench. it is in these circumstances that the writ petition has been placed before us for disposal.3. mr. parkash narain, learned counsel for the petitioners, has repeated the same contention, as urged before the learned single judge and says that the underground filling station is not a building within the meaning of sub-section (3) of section 2 of the said act and, therefore, it is not competent to the respondent to demolish the same. it is said that the only structure involved in the filling station is , a steel tank sunk in the ground with a petrol, pump installed over it and, therefore, it is not a building. the argument proceeds that there has been no erection of any structure and the various provisions of the act seem to suggest that only such structures, as are capable of use either for human habitation or for keeping of animals etc. can be termed as buildings. according to the petitioners, there is no erection of any building, because the storage tank is sunk in the ground, then filled on the sides with clay without involving any masonry work and the pump above the ground is only fixed with a few screws. various instances have been given by mr. parkash narain to show that if such a structure is held to be a building, it would result in divers anomalies. one of the examples given by mr. parkash narain is that if he sinks a small tin box in the compound of his house it would not be a building and sinking of a petrol storage tank is nothing more than sinking a trunk of a larger size. 'building has been defined in sub-section (3) of section 2 of the said act as under:'2. in this act, unless the context otherwise requires,--xx xx xx xx(3) 'building' means a house, out-house, stable, latrine, urinal, shed, hut, wall (other than a boundary wall) or any other structure, whether of masonry, bricks, wood, mud, metal or other material but does not include any portable shelter;'the question really is whether it falls within the expression 'or any other structure' in sub-section (3) of section 2. read in isolation, the definition appears to be wide enough to include a structure of the type in question, but mr. parkash narain refers to sections 331 to 336 of the said act and says that the definition should not be read in isolation but in a restricted manner after attending to the various other provisions of the act which throw light on the meaning of the words 'or any other structure'. it is no use going into the various illustrations given by mr. parkash narain, because the question will have to be determined on the facts and circumstances of each case. the magnitude of the structure will certainly have a bearing on the meaning to be attributed to the word 'building'. may be, mr. parkash narain is right that if a small tin box is sunk in a house-compound it may not amount to erecting a building, but i am here concerned with finding out whether a petrol storage tank with all its accessories is a 'building' or not.i cannot forget that the object of the act is to regulate the matters of public convenience and compel public to conform to certain rules, the non-compliance whereof will result in dislocation of normal comforts, which such statutes are intended to assure. the sense of orderly living in cities and the aesthetic sense of a modern man will be shocked if such like structures are allowed to come up unregulated. such statutes must be construed in such a manner as will best effectuate their purpose and protect their intended beneficiaries. that being so one has to see whether or not a particular structure was intended to be covered by the statute. merely because a tank is sunk does not mean that the process involves no erection of a building, as contemplated by section 331 of the said act. there is no force in the contention of mr. parkash narain that 'erection' must mean 'raising something from lower level to higher level' even according to the 'chambers' twentieth century dictionary', one of the meaning of the word 'erect' is 'to establish'. in any case, when the storage tank is sunk, the steel walls stand erected on a base and consequently, even in the light of restricted meaning sought to be placed on the word 'erect' by mr. prakash narain, the process will fall within the expression 'to erect a building' in section 331 of the said act.the artificiality of mr. prakash narain's argument would be best demonstrated by an illustration: suppose a person digs four underground cellars and plasters the same with cement from the top towards the bottom, it would be a full-fledged structure like a house and yet on the process of reasoning advanced by mr. prakash narain it would not amount to erection of a building. that could not have been the intention of the legislature, for otherwise in constructing an underground house one may exclude it from the operation of the act by following a different procedure of plastering the same. i cannot entertain any doubt that the sinking of a storage tank does not differ in its essential features from any other building. this is as much a work of an artificial character constructed by man by putting together sheets of steel as would be an underground cellar constituted as a result of putting together of bricks and mortar. there is also no force in the contention of mr. parkash narain that such a tank not used for human habitation or for keeping of living beings cannot be termed as a building. accepting that contention would amount to drawing a most artificial line, which will destroy the very object of the act. in that view, a regular masonry underground cellar used for storing grains would be excluded from the purview of this act if the grains are drawn with the aid of a suction pump and no human being or animal enters there.4. mr. prakash narain then says that the pump was installed in 1960 and soon thereafter the respondent started supplying electricity and charging for the same. this, according to the petitioners, should estop the respondent from demolishing the structure. in my opinion, no question of estoppel arises in the circumstances of this case for two reasons: (1) the respondent municipal corporation of delhi is a statutory body and obliged to conform to the regulations in giving or withholding sanctions and mere supply of electricity cannot amount to according sanction for a building, and (2) the structure was installed before the respondent sanctioned the electric connection and nothing has been shown as to how on the representation of the respondent, the petitioners acted to their detriment.5. mr. r. n. tikku, learned counsel for the respondent, has attacked the maintainability of this petition at the instance of the petitioners. he says that the esso are the lessees of the land, they have installed the structure and, therefore, the petitioners are not the persons aggrieved competent to maintain the writ petition. i am afraid, i cannot accede to this argument. it is the right of the petitioners to carry on trade that is being affected and if their contention that the structure is not a building be correct, the respondent will have no authority to interfere therewith. they can, therefore legitimately claim to be the persons aggrieved and consequently entitled to ask for the relief.6. in the result, the petition, fails and is dismissed with no order as to costs.dulat, j. 7. i agree.