Karnataka High Court
Ramachandrachar vs Commissioner, Mysore City Corporation on 1 September, 1995
Equivalent citations: ILR1996KAR1494, 1996 A I H C 2024, (1996) 2 KANT LJ 312
JUDGMENT Hari Nath Tilhari, J.
1. This is plaintiff's Second Appeal arising from the judgment and decree dated 8th of March, 1985, in Regular Appeal No. 13/85 (M.P. Ramachandrachar v. Commissioner, Mysore City Corporation) delivered by the I Additional Civil Judge, Mysore dismissing the plaintiff's appeal and affirming the judgment and decree dated January 31, 1985, passed by the I Additional Munsiff, Mysore in Original Suit No. 377/82, dismissing the plaintiff's suit for decree for permanent injunction.
2. The plaintiff-appellant's case has been that the plaintiff has been the owner of property mentioned in the schedule attached to the plaint. That the plaintiff-appellant wanted to effect certain petty repairs to the latrine and bath room portion in his house and therefore obtained a licence from the defendant. The plaintiff further alleged that while repairing work was being done, the roof of the latrine and bath room came down and so the plaintiff submitted a modified plan and applied for licence to put up R.C.C. roof covering an area of 5 ft. x 10 ft, as a protection from rain and sun. According to the plaintiff-appellant, the modified plan was submitted on 11th March, 1982 and acknowledgment was received from the defendant-respondent. That according to the plaint case, on 20th March, 1982, the defendant sent an endorsement directing the plaintiff to remove the roof put up on the latrine and the bath room. The plaintiff alleged that he had not put up any roof on the date of receipt of acknowledgment and therefore the plaintiff sent a letter on 27.3.1982, stating that he had not done any work of construction of the roof and also requested the defendant to give sanction to the modified plan which had been submitted on 11th of March, 1982. The plaintiff-appellant's case is that plaintiff did not hear anything from the defendant nor did get or receive any communication from the defendant granting or refusing the permission within 30 days period from the day of submission of the application to the defendant. Plaintiff further alleged that thereafter he completed the R.C.C., roofing to provide a cover to the bath room and latrine in place of one that had fallen down. According to plaintiff's case on July 7, 1982, the defendant issued a notice asking the plaintiff-appellant to remove the R.C.C., roofing put up by the plaintiff, failing which defendant-respondent would themselves get that removed through its labourers and servants. The plaintiff's case is that the plaintiff had not done any encroachment, he had only placed roof of latrine and bath room. He took the plea that when for 30 days no communication was issued to the modified plan, it was deemed that the Corporation did grant the licence and therefore the plaintiff proceed with the construction work. The plaintiff further alleged that in case R.C.C. roofing is demolished, plaintiff would be subjected to irreparable loss and injury.
3. After having made these allegations the plaintiff-appellant claiming himself entitled to the grant of relief in the form of decree for permanent injunction against the defendant-respondent, restraining them from demolishing or removing the R.C.C. put up by the plaintiff-appellant over the latrine and bath room portion of his house as well as to recover the costs.
4. The defendant filed the written statement and contested the plaintiff's suit, According to the defendant's case, the plaintiff was not entitled to put that roofing, without obtaining the sanction. Defendant's case is that plaintiff had filed an application for grant of petty licence for effecting certain repairs and the petty licence was granted to the plaintiff. The defendant denied that the tiles roof of the lavatory and the bathroom did come down while effecting repairs. According to the defendant, the plaintiff with an intention to put up a terrace on bath room and the lavatory, purposely did not take licence and he showing petty licence for repairs, carried out the work of putting up of R.C.C., roofing. The defendant admitted that plaintiff had submitted an application with the modified plan for permit of sanction of modified plan, but that was done by the plaintiff, according to the defendant's case after completing the roofing, The defendant admitted that plaintiff gave an application on 11.3.1982, but an endorsement was issued to the plaintiff on 20.3.82. According to the defendant, the plaintiff purposely produced a plan which was not readable and it was not the approved plan sanctioned to the plaintiff. The defendant's case is that on 8.4.82, an endorsement was given to the plaintiff. The defendant's further case is that on 8.3.82, a Junior Engineer of the defendant visited the property in question and found that the plaintiff had illegally constructed the R.C.C. roofing of both bathroom and lavatory, after obtaining the petty licence for repairs. The Junior Engineer on 8.3.82 reported to the officials of the defendant and they visited the spot and after inspection they were satisfied that plaintiff had put up R.C.C., roofing without licence and therefore to demolish the unauthorised construction notice was issued to the plaintiff. The case of the defendant is that plaintiff had constructed the R.C.C., roofing on the basis of petty licence and that was against the provisions of law. On 8.4.82 the defendant gave a direction to the plaintiff to produce the original licence, but it was not furnished. All other allegations made in the plaint have been denied and it has been asserted plaintiff's suit was liable to be dismissed.
5. The Trial Court on the basis of the pleadings of the parties framed the following two issues:-
1. Whether the plaintiff proves that he is entitled for permanent injunction?
2. To what reliefs is he entitled?
6. After having considered the evidence on record, the Trial Court i.e., the Additional Munsiff, dismissed the plaintiff's suit. While dismissing the suit held that the theory set up by the plaintiff that after moving the application for sanction of modified plan, he waited for 30 days and nothing having been communicated to the plaintiff by the defendant that the licence was to be deemed to have been granted, was without substance and was not supported by any provision of law. The Trial Court held that waiting for 30 days after submission of the modified plan to the Commissioner by itself could not entitle to the plaintiff to go ahead with the construction of the R.C.C., roofing on the deemed licence. The Trial Court held that plaintiff did not precisely understand the scope of law under Sections 299, 301 and 302 of the Karnataka Municipal Corporations Act. It held that in the present case, it is not at all the case of the plaintiff that he did wait for 30 days after submitting the modified plan to the defendant and thereafter he submitted a written request to the Standing Committee, on the ground that nothing was heard from the defendant. The Trial Court held that the plaintiff-appellant had already put R.C.C., roofing on the lavatory and bathroom on 8.3.82. The Trial Court on the basis of the above findings dismissed the plaintiff's suit for decree for permanent injunction.
7. That having felt aggrieved from the judgment and decree of the Trial Court dated 31.1.1985, the plaintiff-appellant filed Regular Civil Appeal No. 13/85 in the District Court and the learned Additional Civil Judge, Mysore by judgment and decree dated 8.3.85, dismissed the plaintiff's appeal holding the plaintiff not to be entitled to an order of injunction or to decree for permanent injunction.
The lower Appellate Court affirmed the findings of the Trial Court.
8. Having felt aggrieved from the judgment and decree of the Lower Appellate Court offering the decision of the Trial Court dismissing the plaintiff's suit, the plaintiff-appellant has come up in Second Appeal.
9. I have heard the learned Counsel for the appellant Smt. H.R. Vasudha and Sri M. Papanna assisted by Smt. Geetha Devi Iyyappa for the respondent.
10. On behalf of the appellant Smt. H.R. Vasudha submitted that no construction and reconstruction work had been done. She submitted that only repairs of the latrine and bathroom was being done and had been done and in course of the repair work as the roof of the latrine and bathroom had fallen down, the same was put, may be that R.C.C., roof had been done to cover the latrine and bathroom as before for protection and safety, from rain and the sun. She submitted that no work of construction or reconstruction was done, nor any addition has been made in that part of the building i.e., latrine and the bathroom portion of the building and the work that had been done was in the nature of repairs and not reconstruction nor was any alteration or addition done therein. It is simply to cover the latrine from the above by placing the roofing in place of the one that had fallen down and no work was done as may be termed as construction or reconstruction of the building nor there was any work of addition or the like. So there was no need for any special permit, but as a matter of precaution the plaintiff-appellant had obtained a permit for the repairs and when the roof had fallen down, applied for sanction of the modified plan. Smt. Vasudha further submitted that when the plaintiff had applied for sanction of the modified plan and when he did not hear any thing for a period of 30 days from the Commissioner or authorities, the plaintiff-appellant considered as if the permission should be deemed to have been granted.
11. The contentions made on behalf of the appellant have been hotly contested by Sri Papanna appearing for the respondent. Sri Papanna submitted that placing of R.C.C. roofing in place of titles roofing, was really a case of reconstruction or it may be said to be an act of alteration or addition. He submitted in any case placing of roofing with a different material than the one of which the original roofing was done, was an act of reconstruction of the roofing and as such it was the duty of the plaintiff to have obtained the necessary sanction as the roofing with new material cannot be said to be an act of repair. He urged it is an act of reconstruction. Sri Papanna further submitted that the appellant was not entitled to the protection of the deeming clause, as the necessary ingredients of the deeming clause did not exist. He submitted that really deeming clause will come into operation in case a person applies for permission to construct, before the authorities concerned and then he waits for 30 days and if no order is issued sanctioning or refusing sanction, then in that case it was for the applicant to have moved the Standing Committee for approval, or if there was no Standing Committee, than the Administrator and if the Standing Committee or Administrator would have also failed to determine the question within 30 days of the receipt of the written request under Section 302 of the Karnataka Municipal Corporation Act, 1976, whether the approval be granted or not, then the person applying for permit may be deemed to have been granted requisite permission or licence. He submitted that in the present case no written request had been made to the Standing Committee or the Administrator. He submitted that as no written request had been made to the Administrator or the Standing Committee after expiry of the 30 days period from the date of the plaintiff moving the Commissioner, permission cannot be deemed to have been granted in this case.
I have applied my mind to the contentions of the learned Counsel for the appellant and the respondent. I first propose to deal with the last contention of the learned Counsel for the appellant and to deal with the question whether there could be a deemed permission or doctrine of deemed permission could be applied to the present case.
13, Section 301 of the Karnataka Municipal Corporations Act, 1976, provides for the period within which the Commissioner is to grant or to refuse to grant permission to execute any work. Sections 301 and 302 of the Act are being quoted herewith:-
"Section - 301 - Period within which Commissioner is to grant or refuse to grant permission to execute work. - Within thirty days after the receipt of any application made under Section 299 for permission to execute any work or of any information or of documents or further information or documents required under this rules or bye-laws the Commissioner shall, by written order, either grant such permission or refuse on one or more of the grounds mentioned in Section 303 or Section 304 to grant it."
Section: 302 - Reference to standing committee if Commissioner delays grant or refusal of approval or permission - (1) If, within the period laid down in Section 301, the Commissioner has neither given nor refused his approval of a building site, or his permission to execute any work, as the case may be, the standing committee shall be bound, on the written request of the applicant, to determine by written order whether such approval or permission should be given or not.
(2) If the standing committee does not, within one month from the receipt of such written request, determine whether such approval or permission should be given or not such approval or permission shall be deemed to have been given and the applicant may proceed to execute the work, but not as to contravene any of the provisions of this Act or any rules or byelaws made under this Act."
14. A reading of these Sections perse shows that on an application being made for construction or reconstruction of a building, the Commissioner is required to pass a written order, either granting or refusing such permission on one or more of the grounds under the law and as mentioned in Sections 303 and 304 of the Karnataka Municipal Corporations Act and in case the Commissioner fails to pass any order either granting or refusing to grant the permission, for a period of 30 days from the date of receipt of the application, the applicant for permission is required to make a written request to the Standing Committee and on the written request being made by the applicant, according to the provisions of Section 302 of the Act, the Standing Committee is bound to determine by written order whether such an approval or permission is to be granted or not, but in case this Standing Committee does not determine that point within a period of 30 days, the law provides that the permission in such a case only is to be deemed to have been granted.
15. This being the position of law, in my opinion as by the plaintiff in the present case, as very fairly admitted by the Counsel for the appellant Smt. Vasudha, after the expiry of 30 days period from the date of moving of the application to the Commissioner, no written request had been made to the Standing Committee under Section 302 for determining the question as to whether permission should be granted or not, The protection of deemed provision contained in Section 302, cannot be made available to the plaintiff-appellant, if for a moment it is taken that the present had been the case of construction or reconstruction, though that point is to be considered later on. But in case permission could be required or in case permission is required for construction or reconstruction and the person concerned applied to the Commissioner waits for 30 days, Commissioner does not pass the order, then unless and until the Committee has been approached and request has been made for the purpose and the failure of Committee to determine the point and to pass order, the deeming clause would not be applied and protection thereof could not be available to the plaintiff-appellant or to persons like plaintiff-appellant.
16. As regards the second question is concerned - whether placing of the R.C.C., roof over the latrine and bathroom in the place of tiles, amount to construction or reconstruction or any material alteration or addition in the building which may necessitate for taking written permission for the purpose. The facts of the case are as admitted by both the parties the R.C.C. roofing had been done by the plaintiff-appellant in place of tile roofing that had fallen down during the course of repairs. Now the question is whether it can be said to be reconstruction as asserted.
17. Sections 299 and 300 of the Karnataka Municipal Corporations Act, reads as under-
"299. - Application to construct or reconstruct building - (i) If any person intends to construct or reconstruct a building, he shall send to the Commissioner an application in writing for permission to execute the work together with a site plan of the land, ground plan, elevations and sections of the building, a specification of the work and such other documents as may be prescribed.
Explanation - 'Building' in this sub-section shall include a wall or fence of whatever height bounding or abutting on any public street.
(2) Every document furnished under Sub-section (1) shall contain such particulars and be prepared in such manner as may be required under rules or bye-laws.
"300. Prohibition against commencement of work without permission - The construction or reconstruction of a building shall not be begun unless and until the Commissioner has granted permission for the execution of the work."
18. Reference was also made on behalf of the respondents to the provisions of Section 320 of the Karnataka Municipal Corporation Act. Section 320 of the Act makes the provisions of the Act, Rules and Bye-laws relating to construction or reconstruction of the buildings or huts applicable to any alteration of the building or hut or addition to the building or hut. Section 320 of the Karnataka Municipal Corporations Act, reads as under:
"320 . - Application of provisions to alterations and additions - (1) The provisions of this Chapter and of any rules or bye-laws made under this Act relating to construction and re-construction of the buildings or huts shall also be applicable to any alteration thereof or addition thereto:
Provided that works of necessary repair which do not affect the position or dimensions of a building or hut or any room in a building therein shall not be deemed an alteration or addition for the purpose of this section.
(2) If any question arises as to whether any addition or alteration is a necessary repair not affecting the position or dimensions of a building or hut or room in a building therein, such question shall be referred to the standing committee, whose decision shall be final."
19. In the course of arguments, it has been contended by respondent's Counsel that where there is question of addition, alteration is a necessary repair not affecting the position or dimension of the building or hut or room in the building, such a question can be decided only by the Standing Committee and by none and the decision of the Committee is to be final. Referring to these provisions Sri Papanna submitted that in this case whether putting of R.C.C., roof amounted to reconstruction or repairs or alteration would amount to necessary repair not affecting the position or dimension of the building or the hut, could be decided by the Committee and the Civil Court had no jurisdiction in matter and its decision is final. As such this Court should not go into that question. A reading of these provisions per se shows that provisions relating to obtaining of necessary sanction apply to the cases of construction of building or reconstruction of building and the law is that no construction or reconstruction work has to be begun unless the necessary permission for execution of that work has been granted by the Commissioner and these provisions do also apply to the case of alteration of the building or to the case of addition to the building or hut etc., and whether the work in question of necessary repairs does or does not amount to alteration. The material thing to be considered firstly is when does the act or work amounts to construction or reconstruction or an alteration thereof or addition thereto. Because in those cases whether it may amount to a construction or reconstruction or it may amount to alteration or addition, it is beyond doubt that such work cannot be commenced and undertaken without necessary permission or sanction. It is one of the settled principles of law of interpretation that the terms and phrases which have been defined by the Legislature in the Act itself have got to be understood and interpreted in the manner as defined in the Act, unless context otherwise requires. The term 'building' has been defined in the Act and it has been defined as under:-
"Section - 2(1) "building" includes -
(a) a house, out-house, stable, privy, shed, hut, wall, verandah, fixed platform, plinth, doorstep and any other such structure, whether of masonry, bricks, wood, mud metal or any other material whatsoever;
(b) a structure on wheels simply resting in the ground without foundations;
(c) a ship, vessel, boat, tent and any other structure used for human habitation or used for keeping or storing any article or goods;"
Explanation to Section 299 of the Act further provides that 'Building' in Sub-section (1) shall include a wall or fence of whatever height bounding or abutting on any public street. The expressions construction or reconstruction or alteration or addition have not been defined in the Act itself. That being the position, the external aid has to be taken. Let us take the Dictionary meaning first.
20. The expression 'Construct' at page - 312 of the Black's Law Dictionary, has been defined to mean - To build; erect; put together, make ready for use. On the same page the expression amounting to construction has also been given. With reference to expression 'construction', it has been defined that construction is the process of bringing together and correlating a number of independent entities, so as to form a definite entity. It further provides while defining the expression construction as - "The creation of something new, as distinguished from the repair or improvement of something already existing."
In Law Lexicon by Sri T.P. Mukherjee, with reference to Webster's New World Dictionary, it reads as under:
"Construction according to Webster's New World Dictionary means:
1. the act or process of constructing;
2. the way in which something is constructed; manner or method of building;
3. something constructed; structure; building; whereas the word 'construct' in the same dictionary means;
"to pile up build, to put together systematically build, frame, or devise..
'something built or put together systematically'. Therefore, it will be apparent that whenever any part of a building is erected afresh, it would fall within the phrase 'construction'.
It is further mentioned in that Dictionary at page-403 as under:-
"Construction and reconstruction are interchangeable terms and the only difference is that the phrase 'construction' will be used where a new building is put up where none existed before, but reconstruction will apply to a building which is rebuilt in place of an existing building.
21. From these definitions of 'construction' it appears construction refers to building put on, a new building which did not exist at all or if part of building that did not exist at all, means new construction i.e., construction of a new building or new part of the building. Reconstruction means rebuilding of a building, may be after demolition.
In Black's Law Dictionary, the expression reconstruction has been defined at page - 1272 to mean - "Act of constructing again. It presupposes the nonexistence of the thing to be reconstructed, as an entity; that the thing before existing has lost its entity."
The expression re-construct has been defined or its meaning has been given as to construct again, to rebuild, either in fact or idea, or to remodel. To form again or anew as in the imagination or to restore again as an entity the thing which was lost or destroyed.
In Words and Phrases Permanent Edition, Volume 36A, at page -25, dealing with the expression 'reconstruct' or reconstruction, it has been described -
"To 'reconstruct' means to construct anew, to rebuild, to remodel, to form again or anew."
It further provides -
"A building is properly said to be reconstructed when it is rebuilt or restored to its original condition after having been wholly or partially demolished.
At page - 28 of the said Edition, it has been provided that -
"Reconstruct" is not equivalent to 'repair'. Drawing a distinction between 'reconstruction' and 'repair' at page 31 of Words and Phrases Permanent Edition, Volume - 36A, it had been so observed -
"To repair presupposes the existence of the thing to be repaired; thus we say the thing needs repairing; the thing is out of repair, and so when we speak of repairs, we assume that the thing to be repaired is in existence and the word repair contemplates an existing structure or thing which has become imperfect by reason of the action of the elements , or otherwise ... ....in other words, we supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be. "Reconstruction" presupposes the nonexistence of the thing to be reconstructed as an entity; that the thing before existing has lost its entity; and "reconstruction" is defined as follows: "To construct again; to rebuild; to restore again as an entity the thing which was lost or destroyed."
It is further provided and defined as under:-
"To "reconstruct" means to construct again, to repair, to form again or anew, while to 'repair' means to restore to a sound state after decay, injury, dilapidation, or partial destruction, to mend. The only sense in which the two terms may be used together concerning a work is that, in those places where decay or dilapidation is so complete as to require a total reconstruction or forming anew, the work may be said to be reconstructed, while at other points where the decay is only partial, the work is merely mended or repaired."
What 'repair' means, in the same Volume at page - 749, it has been stated "'Repair' means restoration after decay, waste, injury or partial destruction; supply of loss, reparation; and does not mean alteration or addition ...... There roofing of a house constitutes "repairs" and not "alterations", within meaning of penal ordinance requiring permit for alterations but not for repairs."
At Page - 753 of Words and Phrases Permanent Edition, 36 -A, it has been observed -
"The word "repair" contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be."
Alteration has been defined in Black's Law Dictionary at page - 77, to mean -
"Variation; changing, making different. A change of a thing from one form or state to another; making a thing different from what it was without destroying its identity."
In Stroud's Judicial Dictionary (of Words and Phrases) Fifth Edition at page - 2191, it has been observed. -
"The word 'reconstruct' is not satisfied by a change of identity; there must be a rebuilding of the premises or of a substantial part thereof and the thing that is being constructed must already have been wholly or partially demolished."
In Stroud's Judicial Dictionary at page-2239 it reads -
"To "repair" means to make good defects, including renewal where that is necessary, i.e. "patching, where patching is reasonably practicable; and, where it is not, you must put in a new piece" (per Lord Blackburn, ibid. 579)................But "repair" does not connote a total reconstruction..............To repair is to remedy defects or to put back into good condition something that, having been in good condition, has fallen into bad condition."
22. Dealing with the question what idea the expression repair carries with itself, Their Lordships of the Supreme Court in the case of SIR SHADI LAL AND SONS, SHAMLI v. COMMISSIONER OF INCOME TAX, KANPUR, 1988(Supp) SCC 42 has been pleased to observe as under: -
"The idea of 'repair' may include replacement or even a renewal. But the converse may not be true. All replacements or renewals need not necessarily be 'repairs'. In the case of a building, restoration of stability or safety of a subordinate or subsidiary part of it or any portion of it can be considered as repair while the reconstruction of the entirety of the subject matter may not be so regarded."
23. From a reading of the definition of the Expressions -Alteration, Construction, Reconstruction and Repairs, it comes out as under :-
Construction or the act to construct refers to and applies to construction or erection or building of something new which did not exist at all. To construct means to construct something which did not exist. The act of reconstruction nodoubt carries with it the idea of construction, but it differs in one respect, that in case of reconstruction there is element of something which is being reconstructed. That, that thing or building or element that did exist at one time and thereafter it was destroyed or was demolished before the work of reconstruction being taken out, that is in the case of construction there is no such thing which is to be constructed had been in existence, really a new thing is constructed. But in case of reconstruction there must have been something in existence and thereafter it is being destroyed or demolished and then construction afresh of the new thing in its place. In case of repairs the act of repair presupposes existence of the thing to be repaired. The word 'repair ' contemplates an existing structure or thing which has become defective or imperfect while reconstruction presupposes non existence of the thing to be reconstructed as an entity, in case of repair to the original existing structure, something is supplied to that existing building or structure which has been lost or destroyed and which is necessary to be supplied to keep it in perfect good condition for use. But in case of reconstruction the thing to be reconstructed loses its entity that it had to be when it had been in existence and according to the Supreme Court case, in case of a building, restoration of stability or safety of a subordinate or subsidiary part of it or any portion of it can be considered to be repair.
24. Applying that test whether the placing or replacing of new roofing for the old that is dilapidated or lost or had fallen down, in the course of repairs could be said to be an act of construction or reconstruction, has to be considered. This had to be taken into cnsideration by the authorities before they having issued any notice for demolition. The roof of the latrine and bathroom being in a bad condition and old roofing having fallen down and having been replaced by re-roofing of the latrine and bathroom measuring, 3' x 8' or 3' x 9', can be said to be an act only of putting the latrine and bathroom into perfect order of being used, it can be said to be an act only of supplying the element of roof without which there would have been no safety from rain and sun. The replacing of the roof of the latrine and bathroom, which can be said to be subsidiary or supporting part of the big building i.e., the house or portion of that house, in my opinion on the test mentioned above, cannot term to be an act of construction or reconstruction, because it is not the case that the building or the latrine and bathroom had been demolished or the building of which they are a part had been demolished and thereafter they were constructed again. So that cannot be termed to be construction or reconstruction, but it may be a simple case of repairs.
25. The alternative that has been urged before me on behalf of the respondent is that it may be a case of alteration, Unless and until it is shown to be that the work of necessary repair that had been done, did not affect the position and dimensions of the building or hut or room in the building, because it is only the works of necessary repairs which do not affect the position or dimensions of a building or hut or any room in the building, they are not deemed to be an alteration or addition for the purpose of Section-320 of the Karnataka Municipal Corporations Act and that such a question according to respondent's Counsel when arises it had to be referred to the Standing Committee and whose decision on that point shall be final. It is beyond doubt that this question had never been raised as to whether such work of repair would amount to alteration, except at this stage of Second Appeal, in the course of arguments by respondent's Counsel.
26. Under Section- 321 of the Karnataka Municipal Corporations Act, 1976, it is provided for demolition or alteration of buildings or well-work unlawfully commenced, carried on or completed. Section 321 of the Act reads as under :-
"321. Demolition or alteration of buildings or well-work unlawfully commenced, carried on, or completed.-
(1) if the Commissioner is satisfied,-
(i) That the construction or reconstruction of any building or hut or well,-
(a) has been commenced without obtaining his permission or where an appeal or reference has been made to the standing committee, in contravention of any order passed by the standing committee; or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or
(c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or
(ii) that any alteration required by any notice issued under Section 308, have not been duly made; or;
(iii) that any alteration of or addition to any building or hut or any other work made or done for any purpose into, or upon any building or hut, has been commenced or is being carried on or has been completed in breach of Section 320, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner has been unlawfully executed or make such alterations as may in the opinion of the Commission, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or orders was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well or hut.
(2) The Commissioner shall serve a copy of the provisional order made under Sub-section (1) on the owner or builder of the building or hut or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.
(3) If the owner or builder fails to show cause to the satisfaction of the Commissioner, the Commissioner may confirm the order, with any modification he may think fit and such order shall then be binding on the owner.
(4) If the construction or reconstruction of any building or hut is commenced contrary to the provisions of Section 300 or 314 and the Commissioner is of the opinion that immediate action should be taken, then notwithstanding anything contained in this Act, a notice to be given under Sub-section (2) shall not be of less duration than twentyfour hours and shall be deemed to be duly served if it is affixed in some conspicuous part of the building or hut to which the notice relates and published by proclamation at or near such building or hut accompanied by beat of drum, and upon such affixation and publication, all persons concerned shall be deemed, to have been duly informed of the matters stated therein."
27. Under Section 321 the power has been given to the Commissioner to make certain provisional orders requiring demolition of the work done and so much thereof as has been unlawfully executed. He can also order making up alteration and the like. Before making any provisional order the Commissioner has to be satisfied about either of the things mentioned in Sub-section (1) namely that either construction or reconstruction of a building or well or hut has been commenced without obtaining permission, or in contravention of the order passed by the Standing Committee or it has been so carried on and completed otherwise than in accordance with the plan or particulars on which permission is based or that it is being carried ort or has been completed in breach of any provisions of the Act or Bye-law or against any direction or requisition lawfully given or made under the Act.
28. So in cases of construction and reconstruction if the Commissioner is satisfied prima facie of breach or violation as referred to in Clauses (a) (b) or (c) of Section 321 he can issue the notices or where he is satisfied that an alteration required by notice under Section 308 of the Act has not been made, then he can pass provisional orders and thereafter confirm the same after giving reasonable opportunity and showing cause against it. The third is the category of cases of alterations or additions. That category has been separately characterised and classified. In cases where the Commissioner is satisfied that any alteration or addition to the building or any other work to the building has been commenced or being carried over or has been completed in breach of Section 320 of the Act, then also, he can issue provisional orders and serve the copy on the owner or the builder, to show cause why the order be not confirmed.
29. A reading of the Section reveals that firstly the condition precedent to issue of notice is that Commissioner should be satisfied that the case is covered by some specific category of cases in which notice can be issued. He should be satisfied primarily that either it is a case of construction or reconstruction or that it is a case of alteration and addition referred to in Section 321 of the Act and on being satisfied about the specific nature he has to pass specific provisional orders indicating whether he is satisfied that the work in question is of the nature of construction or reconstruction of building or hut or he is satisfied that the work is of the nature of alteration or addition to the life of the building. If he is so satisfied then notice must indicate under what clause of Section 321 of the Act it is being issued and the particulars of the notice must indicate the category with particulars thereof under which the case has been or is being taken by the Commissioner to be covered prima facie so as to enable the party to give a specific reply to the notice. Giving of vague notice does not amount to giving of reasonable opportunity to show cause or to explain the charge.
30. In the present case the notice only says that the plaintiff has replaced the tiled roofing and in its place has placed R.C.C., roofing and so it is in breach of the provisions of the Act and the Rules. The notice does not indicate, if he has taken that work to be a work of construction or reconstruction or it comes within repairs only. Works of necessary repair can amount to alteration or addition. If the work of repair do not affect the position or dimension of the building or hut or the room in a building, then under Proviso to Section 320 of the Act, it is not to be deemed to be an alteration or addition for the purpose of Section 320 of the Act. So unless a notice is issued in case of alterations being made in breach of Section 320 of the Act, specifying nature of breach, in the sense whether in the opinion of the Commissioner, the work amounts to construction or reconstruction or it only amounts to an act of alteration coming within the four corners of either of the Clause (a) to Sub-section (1) or of Sub-sections 2, 3 of Section 321, the person to whom notice is given is always kept in dark and such a notice definitely if issued can never be said to be a notice giving proper reasonable opportunity to show cause and if on the basis of such a notice an order for demolition is passed, as in the present case, such an order of demolition itself can be said to be illegal and bad, as being tantamount to an order passed in breach of the provisions of the Karnataka Municipal Corporations Act and in particular to the provisions of Section 321 of the Act itself.
31. If it would have been the case of defendant that it was a case of alteration to the building and not of reconstruction and that case should have been put that he had made alterations within the meaning of Section 320 of the Act and committed breach of provisions of Section 320 of the Act, there would have been a case for the plaintiff to have given a specific reply. Notice being communicated as such would amount to no notice and order dated 7.7.82 for demolition would tantamount to an order which is illegal and without jurisdiction as law provides certain things to be done in certain way. The thing or act has got to be done in that manner and the power has to be exercised in that manner alone and not otherwise. Had the case been put of alteration of the building in the notice itself and the party would have replied that it is not an alteration but simple repair or necessary work of repair and it does not affect the dimensions, position etc., there would have been some substance in the contention of the Counsel for the respondent that such a matter has to be decided by the Standing Committee, keeping the basic principles of law, which distinguish construction, reconstruction, repair, alteration or addition from each other. That has not been the position in this case. As notice dated 16/20.3.82 and the order dated 7.7.82 prima facie appear to be not in consonance with the provisions of law, the authorities are not entitled to implement that order as it is without jurisdiction. Further it is beyond doubt that placing of R.C.C., roof in place of old roof for latrine and bathroom, cannot be termed to be an act of construction or reconstruction, it may only amount to supply of something to make the condition of latrine and bathroom good for being used and safe from rain and sun as it is nobody's case that latrine and bathroom had been demolished or the like nor it is the case of defendant that dimensions etc., had been affected by that work of replacing of the roof with the present one. As regards repairs for ordinary repairs under law, there is no requirement of taking licence or permit, but where the act amounts to an act of construction or reconstruction or alteration within the framework of the provisions of the Act, no doubt permit is required. So if the plaintiff had at an earlier stage applied for permit for minor repairs only, he might be acting in a bonafide manner thinking that for repairs also permit is required. Although the permit that had been granted and which is on record also indicates that permit is granted to erect, re-erect or add or to alter and to execute the work which may amount to erection, re-erection addition or alteration, but it does not indicate that for repairs also sanction is needed.
32. Having thus considered and having found that in the present case the work in question of putting the roof, may be R.C.C., roof, in place of the one that had fallen down, was an act of replacing to make the latrine and bathroom safer for use and it is an act of repair only which did not require licence, unless it had been found that it had effect of changing the dimensions.
33. Having found the notice dated 16/20.3.82 Exh. P-3 and the order dated 7.7.82, Exh. P5 not being in accordance with law, in my opinion, the defendants are not authorised nor entitled to remove or demolish the roof concerned and that in my opinion the plaintiff-appellant has been entitled to the grant of decree for injunction as prayed for. The Courts below have refused the injunction on the ground that the plaintiff had put the roofing on or before 8.3.82, without obtaining licence and made application for modified plan on 11.3.83 and without exhausting remedies under the Karnataka Municipal Corporations Act, he had filed the suit. So according to the Courts below plaintiff had not come with clean hands. In my opinion the basic aspect of the case having not been considered by the Courts below as to whether the notice Ex.P3 did form the basic for notice of demolition of the building and whether it was issued in accordance with law, after having followed the requirements of law and whether the Commissioner was satisfied as to the nature of the category under which the case did come in his opinion under Section 321 of the Act itself, whether it was a case of construction or reconstruction or whether it was a case of alteration and breach of Section 321 of the Act. This not having been mentioned in the notice and this aspect not having been considered, blame cannot be put on the plaintiff-appellant, simply on the ground that he had put the R.C.C., roofing in place of the old one, without demolishing the latrine or bathroom etc., as it is nobody's case that bathroom and latrine was demolished. The plaintiff might have applied for modified plan thinking that repair by way of roofing may also require a licence, but on that count it cannot be said that plaintiff had not come to the Court with clean hands.
34. In that view of the matter, I am of the opinion that the Courts below committed substantial error of law in refusing to grant the relief for decree for injunction prayed for by the plaintiff-appellant. Thus considered, in my opinion, the Appeal deserves to be allowed and is hereby allowed.
35. The decree of the Courts below, whereby the Courts below have dismissed the plaintiff's suit is hereby set aside. The plaintiff's suit for injunction restraining the opposite parties from demolishing the plaintiff's roofs of the latrine and bathroom, on the basis of the notice dated 16/20.3.82, issued by defendant i.e. the respondent. Let no demolition of the plaintiff's building particularly the roofs of the latrine and bathroom be done, in pursuance of the above notice issued by defendant respondent.
Appeal is allowed with costs throughout.