Punjab-Haryana High Court
Brahma Saroop Sharma vs Municipal Committee, Delhi on 25 July, 1950
Equivalent citations: AIR1954P&H236, AIR 1954 PUNJAB 236
JUDGMENT Achhru Ram, J.
1. This second appeal raises a question of some-difficulty. It appears that on 10-8-1942, 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.
ORDER Achhru Ram, J.
3. The facts of this case are given in my order dated 20-2-1947, which should be read as a part of this order.
4. 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.
JUDGMENT Kapur, J.
5. The plaintiff is the owner of a house No. 5907 in Pahari Dhiraj, Old Delhi. Sometime, in August 1942, the roof of his upper room was damaged requiring re-roofing, and on 10-8-1942 he applied for permission to repair. Due to incessant rains, the roof of the room on the first floor also fell down as also portions of the wall which crumbled as a result of the rains. Accordingly to the plaintiff's contention by the force of circumstances and by the pressure which was exerted on him by his neighbours he effected extensive repairs to the wall, the room and the floor and he seems to have erected a 'chhajja'.
6. On 19-8-1942 an official of the Municipal Committee, one Baha-ud-Din made a report to the Committee that the height of the room had been increased by 2 feet, and on 1-9-1942 there was a second report that the rebuilt portion had fallen down and that the other portion of the house was in a dangerous condition, on the same day, the Naib Tehsildar made a report to the effect that a portion had fallen clown due to the rains and asked the Municipal Committee that [heir Engineering Department might inspect the spot and send their report. On 15-9-1942 Baha-ud-Din made a report that the wall towards the 'galli' (lane) was being erected without permission find that the house was otherwise in a dangerous condition. On the following day, the Engineering Department made a report that a major portion of the house had collapsed find some other dangerous portions had been removed but the rest of the house was safe, and on the same day, the Building Inspector made a report that portions of the wall on the north and east were being reconstructed.
7. A notice under Section 195 (A) of the Punjab Municipal Act was given on 22-9-1942 which was served on 29th of that month on the plaintiff requesting him to stop the construction, on 1st of October the plaintiff made a representation to the Municipal Committee saying that the house was in a dangerous condition and hence he had made repairs and requested that the notice be withdrawn. The report made by the Building Inspector on 6th of October was that two rooms and a 'chhajja' had been constructed and that the construction had finished. On 8-12-1942 the Naib Tehsildar reported that the 'chhajja' was projecting over the public lane. On 13-1-1943 the Naib Tehsildar made another report that the construction had finished and the building had been reconstructed and had been put in the same shape as it was before, and that whatever had fallen down had been reconstructed.
8. On 4-2-1943 two notices were sent by the Municipal Committee, one under Section 195 of the Municipal Act asking that a room and a verandah on the ground floor and a room, a 'saiben' and a verandah on the first floor which had been erected without permission and against bye-laws should be removed within thirty days. The second notice war, under Section 172 asking for the removal of the 'chhajja' which was porjecting on the road. As nothing seems to have been done by the plaintiff a notice under Section 220 was given to him on 20-4-1943, but before that on 8-3-1943 he made a representation to the Municipal Committee that he had only made repairs and that he should be given permission. On 10-4-1943 this was refused on the ground that the set back rule had not been observed.
9. On 15-5-1943 the plaintiff brought a suit for an injunction restraining the Municipal Committee from demolishing the construction mentioned in the notices on the ground that the order of the Municipal Committee was 'mala fide', wanton, oppressive, vague and 'ultra vires'. The Municipal Committee controverted the allegations of the plaintiff and pleaded that their action was neither 'mala fide', nor oppressive, nor vague, and that the construction in dispute amounted to re-erection or, at any rate, to material alteration and it contravened the bye-laws of the Committee and, therefore, the Committee was Justified in issuing the notices complained of. The learned trial Judge framed two issues: "I. Whether the notices in dispute are illegal, 'ultra vires' or otherwise not binding upon the plaintiff for the reasons given in the plaint?
2. Relief."
10. The trial Court held that the construction was only repairs and it did not contravene any of the provisions of the Punjab Municipal Act and, therefore, decreed the plaintiff's suit on the 29th of June 1945. The Senior Subordinate Judge allowed the appeal and held that the portions shown red in the plan Ex. D. 11 were reconstructed by the plaintiff and that they amounted to re-erection of a building within the provisions of the Municipal Act to which Section 172 and Section 195 Of the Act applied, and the notices issued, therefore, were perfectly valid. He, therefore, dismissed the plaintiff's suit. Against this decree the plaintiff has come up in appeal to this Court.
11. The plan shows that on the ground floor the whole of the verandah and the wall of the room and a projection have been constructed or reconstructed, and on the first floor a room, a projection and a verandah and a 'saiban' have been reconstructed. The question for determination is whether this amounts to erection or re-erection within the meaning of Section 3 (5) of the Punjab Municipal Act. Section 3 (2) of the Municipal Act defines "building" as follows:
" 'Building' means any shop, house, hut, outhouse, shed or stable, whether used for the purpose of human habitation or otherwise..... and includes a wall and a well."
12. Section 3 (5) defines "erection or re-erec tion" of any building. It includes:
"(a) any material alteration or enlargement of any building, * * *
(e) such alterations of a building as affect an alteration of its drainage or sanitary arrangements, or materially affect its security,
(f) the addition of any rooms, buildings, outhouses or other structures to any building, and
(g) the construction in a wall adjoining any street or land not belonging to the owner of the wall, of a door opening on to such street or land."
13. There are some reported cases under Municipal Acts of other States which in my opinion are of some assistance in construing the words in the Punjab Act. In -- 'Krishanji Narayan Pakshe v. Municipality of Tasgaon', 18 Bom 547 (A), the plaintiff had built a new wall on the site of an old wall including the old foundations and the Municipality had pulled down the wall. The owner thereupon brought a suit against the Municipalty for damages. It was held that the building of a new wall on the site of the old wall including the old foundations was not an addition to the existing building within the meaning of Section 33 of the District Municipal Act. In -- 'Emperor v. H. B. DeSouza', 35 Bom 412 (B), one of the side walls of the house of the accused fell down. He rebuilt it on its old foundation without previously obtaining the permission of the Municipality, and he was charged under S. 96, Bombay District Municipal Act, for erecting a building without permission. It was held that the accused committed no offence under this section, for it could not be said as a matter of law that the material reconstruction of a small wall must constitute the "erection of a building".
"Building" under Section 3(7) of that Act was similarly defined as in the present Punjab Act and the "erection of a building" was almost similar to the one in the present Punjab Act. Heaton J. at page 415 said:
"If we were dealing with a wall standing by itself we should bs dealing with a building. But where we have a complex building such as a house, it seems to me that the 'building' meant by Section 98 is the whole house and not a selected portion of that whole such as the southern, wall."
No doubt, he went on to remark that it may be a question of fact in any particular case whether the re-construction of any particular wall or portions of a building is substantially a re-construction of the building.
Scott C. J. dealing with Section 3(7) observed:
"Whether the re-construction of a wall of whatever importance forming part of a house is necessarily the 'erection of a building', depends upon whether the interpretation clause, Section 3(7), is to be taken as substituting impliedly for the word 'building' wherever it occurs in the Act not merely all erections falling within the ordinary comprehension of the term 'building' but also all other things included within the definition. It is recognized in England to be a rule with regard to the effect of interpretation-clauses of a comprehensive nature such as we have here that they are not to be taken as strictly defining what the meaning of a word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they should."
The learned Chief Justice there said that he did not think that the Court was precluded from giving to the word "building" its ordinary meaning which was intended by the Legislature.
14. A Full Bench judgment of the Patna High Court in -- 'Gaya Municipality v. Sham Lal Gupta', AIR 1917 Pat 6 (C) is of some assistance in deciding the present appeal. In that case, the pulling down and then putting up the whole of a balcony was held not to be a re-erection within the meaning of Section 240 of the Bengal Municipality Act. Chamier C. J. said at pp. 7-8:
"It appears to me that the question whether there has been an erection or re-erection of a house within the meaning of the Act depends upon the circumstances of the case. As I understand the finding of the Munsif which was accepted by the District Judge, no new structure was erected by the respondent. He intended to repair the upper storey or the roof of his house and in the course of making the repairs he found it necessary to renew some of the walls or parts of the walls of the upper storey and also to renew some of the woodwork of the balcony. In order to do this he had to pull down & put up again the whole balcony. In my opinion, he did not erect or re-erect his house within the meaning of Section 240. He carried out thorough repairs. * * * that there was no enlargement of the buildings. In ordi nary parlance the respondent cannot be said to have erected or re-erected a house."
It is, no doubt, true that Jwala Prasad J. was of a different opinion but even he held that where as a matter of fact no new structure is constructed there is no erection or re-erection. He referred to his own judgment -- 'Baldeo Lall v. Emperor', AIR 1916 Pat 3 (2) (D), that where there is re-erection of the whole front of the house it amounted to re-erection of the house within the meaning of the Act. But it is clear that the Full Bench decision did not agree with this interpretation as being applicable to the facts of that case.
15. A case which was strongly relied on by the appellant's counsel is an unreported judgment of Mahajan J. in -- 'Kallu Mal v. The Municipal Committee, Delhi', Second Appeal No. 71 of 1943 (Lah) (E). There the house was bounded by a street on its south and west and the wall of this house towards the south abutting on the lane having become dangerous was demolished by the owner up to the level of the plinth and reconstructed without obtaining the sanction of the Municipal Committee. The Committee gave notice under Section 195 requiring him to remove within thirty days 7 1/2 feet portion of the wall towards the lane as it had been erected without its permission and the plaintiff brought a suit for a permanent injunction to restrain the Committee from demolishing the wall. The finding of the first appellate Court was that the wall had beep demolished by the plaintiff up to the plinth and, therefore, its rebuilding amounted to its re-erection within the meaning of Section 3(5) of the Punjab Municipal Act. On appeal, the learned Judge held that the "reconstruction of one of the walls of a house did not amount to reconstruction of the huse itself".
The learned Judge observed:
"If the wall stood by itself and was not a portion of any house, then, as denned in Section 3, the wall itself would be a building and its re construction would be reconstruction of a building or a re-erection of it within the meaning of those words in Section 195 of the Punjab Municipal Act * * * * But, in my opinion, these provisions are not attracted when the wall rebuilt is one of the walls of a house, because in that case the point for consideration would be whether the house as such has been altered or materially changed by the reconstruction of this wall."
Reliance was placed by the learned Judge on -- '35 Bom 412 (B)'. The learned Judge went on to observe:
"The reconstruction of a portion of the southern wall of the house in suit did not constitute re-erection of a building within the meaning of Section 195 of the Act and that being so, no sanction of the Municipal Committee was needed to re-erect the wall that had been demolished up to the level of the plinth."
With these observations I most respectfully agree. In the present case it appears that due to circumstances beyond the control of the plaintiff the damage to the old building had become so great that portions of it fell down and other portions of the walls of the house had to be taken down to ensure safety of the building and there was a reconstruction of portion of the walls, but that, as observed by Mahajan J. did not amount to re-erection within the meaning of the word as used in the Municipal Act. Here we are dealing with what Heaton J. in -- '35 Bom 412 (B)' said was "a complex building such as a house".
16. It is true that Abdur Rahman J. in --'Municipal Committee, Delhi v. Mt. Sham Dei', AIR 1947 Lah 256 (F) has not agreed with the observations of Mahajan J. He seemed to be of the opinion that the word "wall' used in Section 3(2) would be included in the term "building" whether the wall stands by itself or forms part of a house. With very great respect, I am unable to agree with this definition and would prefer to follow Mahajan J. In the definition of the word "building" which existed in the corresponding Section 3(2) of the Act before 1923 the words were: "'Building' means the whole or any part * * ." By the amending Act, the Legislature deliberately removed the words "the whole or any part", and the counsel for the respondent rightly submitted that this deliberate change of expression must be taken to import a change of intention. He relied on -- 'Rickett v. Metropolitan Rly. Co.', (1867) 2 HL 175 (G) at p. 207.
17. Some cases were cited by the counsel for the respondent in order to show that what had happened in the present case did amount to "erection or re-erection of a building" within the meaning of Section 3(5) of the Act. 'Bandra City Municipality v. D'Monte', AIR 1923 Bom 407 (H) was a case where new foundations had been dug and this was held to be equivalent to "building" under the Act, but that is not what has happened here. 'Dave Harishankar v. The Town Municipality of Umreth', 19 Bom 27 (1) was a case where the plaintiff did not show in the plan that he wished to build a wall and he erected one. It was held that this was a contravention of the Act. As I have said before "wall" is included within the expression "building".
In -- 'Emperor v. Kalekhan', 35 Bom 236 (J), the accused living within the municipal limits of Bander reconstructed a 'kachha' wall of the house that had fallen without permission and he made an application to the Municipality for leave to reconstruct it, and on the ground that the expression "to erect a building" included any material reconstruction of a building the accused was convicted on appeal by the High Court. The facts of the case are not very clear and it does not appear as to what was the nature of the construction. Evidently a whole wall was rebuilt. Whether that would or would not amount to a reconstruction within the meaning of the Act is not possible to decide on the facts given in that case.
18. What seems to have happened in this case is that a portion of the wall on the north abutting on the lane and a portion abutting on the east of the lane had to be reconstructed, as also another wall on the west which went to constitute the front room, and if the intorpretation of the word "building" and the word "re-erection" as given by Mahajan J. is correct as in my opinion, most respectfully expressed, it is, then the action of the plaintiff does not come under Section 195 of the Municipal Act.
This section says:
"Should a building be begun, erected or re-erected. (a) without sanction as required by Section 189(1); or (b) without notice as required by Section 189(2); * * * (c) the committee may by notice * * * require the building to be altered in such maner * * * ."
As I have said before, the action of the plaintiff does not amount to erection or re-erection and what has been reconstructed by the plaintiff is neither a shop nor a house, nor a hut, nor a outhouse, shed or stable. The Legislature has deli-berately removed the words "whole or any part" and, therefore, the action of the plaintiff is not covered by Section 195 of the Municipal Act.
19. Another submission of the respondent's counsel was that by constructing the wall the plaintiff has deprived the Municipal Committee of its rights to enforce the set back rule regarding this wall. I may here say that the reconstructed wall is a continuation of a long wall which abuts on the south road and, as was said by Mahajan J., the Municipal Committee cannot enforce the set back rule regarding a portion of the wall, the rest of which could not be put back under the rules of the Committee.
20. I would, therefore, hold that this notice of the Committee is ultra vires. The learned Judge was in error in refusing to restrain the defendant Committee from demolishing the portions covered by the notice under Section 195 of the Punjab Municipal Act.
21. Coming to the notice under Section 112, it appears that the plaintiff has without the written permission of the Committee made an encroachment over the street. There is no proof and no evidence, at least none has been pointed out to me showing that there was already a 'chhajja' overhanging the street at this place. This certainly is a contravention of the Municipal Act and the rules of the Municipal Committee and they were justified in giving this notice. I would, therefore, uphold the decree of the learned Judge in regard to that portion of the plaintiff's house which is covered by the notice under Section 172 of the Act and would dismiss his suit to that extent.
22. In the result, the decree is partially modified and the suit is allowed to the extent mentioned above. As both the parties have only partially succeeded, I leave them to bear their own costs throughout.
Soni, J.
23. I agree.