(1) The Delhi Municipal Corporation gave a notice to the responpent under Section 343 of the Delhi Municipal Corporation Act, 1957, (hereinafter called the Act). The relevant part of the notice dated 9-P-64 is as follows :-
'WHEREASyou have commenced/or carrying on/or have completed the erection of building without sanction as required under Section 332 of the Act............ consisting of one room at first floor situated over 5254 Gandhi Market............you are required to demolish the aforesaid erection within a time of 5 days.'
(2) It is admitted that shop No. 5254 is occupied by the. respondent. As the notice was not complied with, the Municipal Commissioner passed an order for demolition of the unauthorised structure. The respondent filed an appeal before the District Judge under sub-section (2) of Section 343 of the Act. Under Section 457 of the Act, the procedure provided in the Code of Civil Procedure in regard to suits shall be followed in the disposal of such appeals by the District Judge. The learned Additional District Judge, Shri Udham Singh, who heard the appeal, however, thought it fit to appoint Shri Inderjit Jain, stenographer as the commissioner for local investigation. The relevant part of the report made by the commissioner was as follows : -
'INbetween the shop No. 5254 and the disputed portion there is a common roof/floor. The roof of the shop No. 5254 is open from its back side and way to go to the-portion in dispute is only from that open space by a wooden staircase.'
(3) Acting on this report the learned Additional District Judge in his Judgment in which he purported to state 'the facts of the case' as being that the respondent had made a 'loft' in his shop. If the learned judge meant that this fact was undisputed, I find nothing on the record to show that both the parties had accepted this position. It would, thereforee, appear that what is said to be 'the facts' by the learned judge was only the averment made by the respondent in the memorandum of appeal. This averment was contrary to the averment made by the Delhi Municipal Corporation in the notice sent to the respondent under Section 344. The question for decision before the learned judge there- fore was whether the disputed structure was on the first floor or whether it was included in the ground floor as a 'loft'. The report of the commissioner is that in between the shop of the respondent and the disputed structure, there is a common roof or the floor, that is to say that the roof at of the top of the ground floor of the first floor separated the shop from the disputed portion. This would mean that the disputed portion was on the first floor while the shop was on the ground floor. The commissioner further stated that the roof of the shop was open from its back side and the way to go to the portion in dispute is only from that open space by a wooden staircase. I am unable to understand what is meant by the 'roof' of the shop being open from the back side'. It cannot mean that the shop itself below its roof was open from the back side. If it means that the shop was open from the back side for entry to the roof of the shop then the way was at the top of the roof and not below it. This would mean that the way led to the first floor and n3t to the ground floor.
(4) The learned Additional District Judge relied upon the definition of 'repairs' which excludes a loft inside the shop from the concept of construction or re-construction. The learned Additional District Judge has referred to the definition of 'repairs which includes Construction or reconstruction of lofts in shops, probably, with a view to show that no sanction was necessary for making such repairs. There is nothing, however, on the record to show that the disputed structure was a loft. The learned Additional District Judge has accepted the allegation made by the respondent to this effect as being a fact without there being the slightest evidence on the record. An order which is totally without evidence is without jurisdiction. 'I thereforee set aside the order of the Additional District Judge dated 6-3-65 and remand the case back to him with the direction to reconsider the same and decide it after giving an opportunity to both the parties to adduce such evidence as they may desire to do. Arguments should be heard thereafter and the appeal should be decided in accordance with law. Case Remanded
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