J..

A •.

TARLOK SINGH

MUNICIPAL CORPORATION OF AMRITSAR AND

ANOTHER.

AUGUST 20, 1986

[R.S. PATHAK AND G.L. OZA, JJ.)

Punjab Municipal Corporation Act 1976: ss. 384 and 269 and Civil Procedure Code, 1908: 0.41, R. 27-Proceedings before District Judge in applicqtions, references and appeals under the Municipal Corporation Act-Applicability of procedures contemplated in C.P. C.

Words and Phrases:

Expression "as far as it can be made applicable" -Connotation of-S. 384, Punjab Municipal Corooration Act. 1976.

Section 384 of the Punjab Municipal Corporation Act 1976 states that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the District Judge under the Act or any bye-law made thereunder.

A dispute between the Railways and the Municipal Corporation resulted in revocation of the sanction for construction of certain shops situated on the road along side the railway line in the city of Amritsar.

Subsequently, the Municipal Commissioner passed an order directing demolition 'of these shops. The appellant, who is an allottee of one of these shops on licence from the Railways, being aggrieved by that order preferred an appeal before the District Judge under s. 269(2) of the Act.

In that appeal, the District Judge rejected an application submitted by the appellant for recording of evidence. The appellant tiled a writ petition against that order before the High Court which took the view that if the District Judge so feels the application for recording of evidence could be considered under Order 41, Rule 27 of the Code of Civil Procedure.

In the appeal by Special Leave to this Court on the question: H

A Whether in an appeal tiled under s. 269(2) of the Punjab Municipal Corporation Act 1976, the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed in view of the language of s. 384 of the 1976 Act.

B Dismissing the Appeal, the Court,

HELD: The lauguage used in s. 384 of the Punjab Municipal Corporation Act 1976 only indicates that the procedure as provided in the Code of Civil Procedure in regard to a suit will have to be foUowed in proceedings under that Act when the matter goes to the District Judge either by way of an application, reference or appeal. The use of the phrase "as far as it can be made applicable" in that section goes to show that it is not expected in any one of the proceedings contemplated therein-that is, applications, appeals and references-to follow the procedure of a suit technically and strictly in accordance with the provi' sions contained in the Code of Civil Procedure. It is only for the purposes of guidance that the procedure of a suit as Provided in the Code of Civil Procedure can he considered. [62 JA-B; C-D]

 In an appropriate case whenever the District Judge feels satisfied he may give an opportunity to the parties to lead evidence under Order 41, Rule 27 of the Code of Civil Procedure, as it will be open to him to apply the procedure as far as it can be made applicable in the facts and circumstances of each case. [ 62 IE-F]

It, therefore, could not be said that in an appeal under s. 269 sub-cl.(2) before a District Judge the procedure of a suit as provided in the Code of Civil Procedure will be necessary. [ 62 IB-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2843 of!986

From the Judgment and Order dated 17.12.1982 of the Punjab & Haryana High Court in Civil Writ Petition No. 5548 Cir 1982.

V.M. Tarkunde, Raian Karanjawala, Mrs. M. Karanjawala and Ejaz Mazbooi for the Appellant.

Na unit Lal for the Respondents.

H The Judgment of the Court was delivered by

OZA, J. Leave granted.

This appeal arises out of the judgment of the High Court of Punjab and I-iaryana in Civil Writ Petition No. 5548 of 1982 dated 17.12.1982.

The appellant is a shopkeeper occupying Shop No. 13 situated on the road along side the Railway Line, Golebagh site in the city of Amritsar. There are 56 other shops similarly situated which are occupied by other allottees like the petitioner. The premises in occupation of the petitioner and other shopkeepers are on licences given by the Railway since April 1981. After the sanction was given to Railway for construction of these shops some dispute arose and the Corporation chose to revoke the sanction and ultimately as a result oflitigation the present petitioner and the other shopkeepers similarly situated were given a notice to show cause by the Municipal Corporation, Amritsar and under section 269(1) of the Punjab Municipal Corporation Act, 1976. This was a composite notice also under Section 270(1) of the said Act. The petitioner received this notice along with other shopkeepers in the first half of October 1981.

The petitioner and other shopkeepers submitted their replies to the Commissioner of ~.. . <cipal Corporation and the Commissioner passed an Order direct! .. ,; the demolition of the shops on 9.11.1981.

This order was served •r !le petitioner and all other shopkeepers. The petitioner being aggrieved by this order preferred an appeal before the District Judge under Section 269 sub-clause (2). In this appeal before the District Judge the District Judge rejected an application submitted l by the petitioner for recording of evidence and it was against this order passed by the District Judge that. the petitioner filed a writ petition before the High Court wherein the Division Bench of the High Court took a view that if the District Judge so feels the application for recording of evidence could be considered under Order 41Rule27.

The only question raised in this appeal is about the interpretation of Section 384. It was contended before us by the learned counsel for the appellant that in view of the language of Section 384 of the Punjab Municipal Corporation Act, 1976 in this appeal before the District Judge ihe procedure of a civil suit as provided in the Code of Civil

Procedure will have to be followed and on the basis of this provision it was contended that the District Judge was bound to follow the procedure of a civil suit thereby framing of issues and recording of evidence

is necessary whereas the learned counsel for the respondent Municipal Corporation contended that the language of Section 384 only provides that in these proceedings before the District Judge the procedure of a civil suit as far as possible will be followed. It was, therefore, contended that the expression "civil suit" in Section 384 includes an appeal as an appeal is nothing but a continuation of proceedings of the civil suit and therefore the meaning of Section 384 could only be that in case of appeal the procedure of appeal under the Code of Civil Procedure shall be followed.

Learned counsel for the parties also draw our attention to various facts and the manner in which the shops were initially allotted and

411 the grievance that the Municipal Corporation had about the allotment of these shops to the particular prsons. But in our opinion those are matters not relevant for the purpose of decision of this case. The only question that arises is as to whether in an appeal filed under Section 269 sub-clause (2) the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed in view of language of Section 384 of the Punjab Municipal Corporation Act, 1976. Section 384 reads as follows:

'The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the court of the District Judge under this Act or any bye law made thereunder."

This provision talks of the procedure provided in the Code of Civil Procedure in regard to a suit shall be followed but it also refers to "as far as it can be made applicable" and the phrase that follows refers --' to an application, appeal or reference.

This, therefore, clearly indicates that in the appeal, application or reference the same procedure need not be followed although it talks of the procedure of a civil suit but it is also mentioned that as far as it can be made applicable this goes to show that the procedure of a civil suit will have to be followed if it is consistent with the proceedings pending before the District Judge.

The suit has not been specifically defined in the Code and from the scheme of the Code of Civil Procedure it appears that a:n appeal also is a continuation of the suit. The language used in Section 384

therefore only indicates that the procedure as comtemplatcd in the Code of Civil Procedure will have to be followed in these proceedings under this Act when the matter goes to the District Judge either by way of an application, reference or appeal. The procedure of this suit will include even the procedure of an appeal and. it is because of this that the phrase as far .as it can be made applicable has been used in this section. It, therefore, could not be contended that in an appeal under Section 269 sub-c.lause (2) before a District Judge the procedure of a suit as provided in the Code of Civil Procedure (filing of plaint, written statements, issues, recording of evidence) will be necessary. The three proceedings contemplated in Section 384 are application, reference and appeal and therefore out of the scheme of the Code of Civil Procedure pertaining to the procedure of a civil suit or an appeal the relevant provisions will have to be applied for purposes of guidance of procedure and therefore the use of the phrase as far as it can be.made applicable clearly indicates that it is not expected in any one of these proceedings to follow the procedure of a suit technically and strictly in accordance with the provisions contained in the Code of Civil Proce- . dure .. It is only for purposes of guidance that the procedure of a suit as provided in the Code of Civil Procedure can be considered and it will be the discretion of the authority (the District Judge) to apply as far as it could be applied in the appropriate proceedings. In our view, therefore, what High Court said, appears to be proper as the High Court stated in the impugned judgment that if the District Judge so feels, he may allow any additional evidence to be led under Order 41 Rule 27 of the Code of Civil Procedure. In fact, it would be enough to say that in an appropriate case whenever the District Judge feels satisfied he may give an opportunity to the parties to lead evidence as it will be open to the District Judge to apply the procedure as far as it can be made applicable in the facts and circumstances of each case. We, therefore, see no substance in this appeal. It is, therefore, dismissed. In the circumstances, no order as to costs.

P.S.S.

Appeal dismissed.