SMT. GEETA SINGH & ANR. vs THE SUB DIVISIONAL MAGISTRATE (KAPASHERA) & ANR.

$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 06.02.2024
+ LPA 99/2021 & CM APPLs.9616/2021 & 9617/2021

SMT. GEETA SINGH & ANR. ….. Appellants
Through: Mr Santosh Kumar with Mr Daksh Arora & Mr Kushagra Aman, Advs.
versus

THE SUB DIVISIONAL MAGISTRATE
(KAPASHERA) & ANR. ….. Respondents
Through: Mr Rishikesh Kumar, ASC with Ms. Sheenu Priya, Mr Atik Gill, Ms Jyoti, Mr Sudhir Kumar Shukla, Mr Sudhir and Mr Sumit Choudhary, Advs for GNCTD.
Mr Rakesh Mittal with Ms Yamini Mittal and Mr Ajay Harshana, Advs. for MCD.
Mr Amit Bhagat with Ms Arzoo Raj, Advs. for R-2.
Ms Meghna, Adv. for DDA.
CORAM:
HON’BLE MR. JUSTICE RAJIV SHAKDHER
HON’BLE MR. JUSTICE AMIT BANSAL
[Physical Hearing/Hybrid Hearing (as per request)]

RAJIV SHAKDHER, J. (ORAL)
1. This appeal is directed against the judgment dated 22.02.2021 passed by the learned Single Judge.
2. The appellants had approached the writ court by way of a petition to assail the order dated 16.07.2020 passed by the concerned Sub-Divisional Magistrate [in short, “SDM”], Kapashera, concerning installation of gates at the subject area.
3. The grievance of the appellants centers around the operative directions contained in SDM’s order. The operative directions have been captured in the impugned judgment. For convenience, they are extracted hereafter:
“Observation:-
After hearing both the parties and all the above facts as well as keeping in mind the safety and security of all residents living in the Kapashera Estate, the undersigned is of view that the request of RWA Association Kapashera is liable to be allowed and hereby allowed that the gate should be installed at point ‘A’ and ‘B’ instead of point ‘C’ as shown in the map enclosed herewith because gates are being erected at the ends of roads & I am of the view that there is no partiality.”
[Emphasis is ours]

4. Against this backdrop, two objections are raised by the counsel for the appellants. First, the learned Single Judge failed to take into account the provisions of Section 320 of the Delhi Municipal Corporation Act, 1957 [in short, “DMC Act”] and the circular dated 25.06.2007 [See Annexure P-19].
4.1 Second, the order dated 16.07.2020, passed by the SDM was without jurisdiction since a notification, dated 20.11.2019, had been issued whereby amongst other land parcels, the subject land, located in Kapshera, was urbanized. In sum, the submission was that the SDM could not have passed an order concerning the same, as the subject land was no longer Gram Sabha land.
4.2 Therefore, what emerges is that if we were to accept the submission advanced by the learned counsel for the appellants concerning absence of jurisdiction, the order passed by the SDM would have to be set aside.
4.3 We may note that the SDM was charged with the responsibility of hearing the disputants, which included the appellants and the concerned resident welfare association pursuant to the order dated 30.04.2019 passed by a Single Judge of this Court in two writ petitions i.e., W.P.(C) 8242/2017 and W.P.(C) 6133/2018.
5. Concededly, the appellant no.1 i.e., Geeta Singh was the petitioner in W.P.(C) 8242/2017.
6. It is also not in dispute that the submission revolving around lack of jurisdiction was not raised by the appellants before the SDM or even before the learned Single Judge, who passed the impugned judgment.
6.1 That said, counsel for the appellant is correct that an objection concerning jurisdiction can be raised at any stage, including during collateral proceedings. [See Kiran Singh v. Chaman Paswan, 1954 SCC OnLine SC 11].
7. Given this position, the contention concerning lack of jurisdiction raised by the appellants is accepted.
8. As regards the other contentions raised on behalf the appellants, that provisions of Section 320 of DMC Act and Circular dated 25.06.2007 were not considered by the learned Single Judge, they lose their significance insofar as this appeal is concerned as we have held that the SDM lacked the jurisdiction to deal with regard to the subject area and therefore, the matter would have to be remitted to the concerned officer exercising jurisdiction under the DMC Act.
8.1 Mr Rakesh Mittal, who appears on behalf of the MCD informs us that the Deputy Commissioner, Najafgarh Zone [in short “Deputy Commissioner”] would be the empowered to deal with the matter at hand.
9. Accordingly, the appeal is disposed of with the following directions:
(i) The impugned judgment is set aside.
(ii) The matter is remitted to the Deputy Commissioner.
(iii) The disputants [i.e., the appellants and respondent no.2] will appear before the Deputy Commissioner on 12.02.2024 at 3.00 P.M.
(iv) The Deputy Commissioner will accord an opportunity of hearing to the disputants and thereafter, proceed to pass a speaking order.
(iv) The Deputy Commissioner will also get the subject area inspected so that he has a clear sight as to aspects such as access or impediments, if any, encountered by the residents in seeking ingress and egress.
(v) The Deputy Commissioner will complete this exercise within four (4) weeks of receipt of a copy of the order.
10. Consequently, pending applications shall stand closed.
11. Parties will act based on the digitally signed copy of the order.

RAJIV SHAKDHER, J

AMIT BANSAL, J
FEBRUARY 6, 2024/pmc

LPA 99/2021 Page 1 of 4