Decided on July 25,1950



Achhru Ram, J. - (1.) This second appeal raises a question of some-difficulty. It appears that on 10-81942, the appellant submitted an application to the Municipal Committee of Delhi for permission to effect certain repairs in his house and for setting the roof right. On 19-8-1942 he was noticed by Baha-ud-din Jamadar relaying the roof of a room. By the time the Jemadar and the Naib Tehsildar went to the spot again, the entire structure, the building erected in place whereof Is the subject-matter of the present dispute, had fallen down. After some report ings and some proceedings, the Municipal Committee decided to issue a notice to call upon the appellant to demolish a room and a verandah in the lower story, a room, a 'saiban' and a 'chhajja' in the second storey and also a 'chhajja' on the roadway on the ground that the structures had been made without the permission of the Committee. The plaintiff brought a suit for an injunction restraining the Committee from demolishing the above mentioned structures alleging that the notices issued to him ware 'ultra vires' and illegal and that the act or the Municipal Committee in deciding to demolish his structures was capricious and 'mala fide'. The trial Judge decreed the suit but the learned Senior Sub-Judge on appeal reversed the decree passed by the learned trial Judge and dismissed the plaintiff's suit. Both Courts are agreed that two rooms, one over the other, and a verandah in the two stories and a projection in front have been reconstructed by the appellant. The trial Court was of the view that it was merely a case of repairs while the learned Senior Sub-Judge took the view that it was a case of reerection. One thing appears to be indisputable and it is that it was not a case of voluntary demolition of a portion of the house and substitution of another structure for it. It cannot be gainsaid that the appellant in the first instance started only to repair the house by reroofing a room. Unluckily, for him due to rainfall the two rooms one above the other, the verandahs in both the stories and the projection in front collapsed and in continuation of the repairs started by him he rebuilt the structure that had so collapsed. As I have pointed out above, me question whether this act of rebuilding should be considered to be re-erection within the meaning of the Municipal Act or mere repairs is a question of very considerable difficulty. During the course of the arguments it was suggested that it was yet open to the Municipal Committee to com-pound this matter by accepting compensation from the appellant, and I have been asked to adjourn the case to enable the parties to come to a settlement, if possible. I am accordingly adjourning it for a fortnight.
(2.) The facts of this case are given in my order dated 20-2-1947, which should be read as a part of this order.
(3.) In view of the fact that, as pointed out by me in my previous order, this case involves a question of considerable difficulty I refer it to a Division Bench. I have adopted this course because whatever decision I might have given on the question arising for determination, I must have allowed the party against whom my decision went to file a Letters Patent appeal. The papers of this case should be laid before my Lord the Chief Justice for constituting a Bench to hear this appeal.;

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