ABDUL LATHEEF Vs. CORPORATION OF COCHIN

JUDGEMENT

(1.) In the dispute between the appellant (writ petitioner) and the third respondent, the question that arises for consideration is whether the boundary wall put up by the latter is one which abuts a public street. Contention of the appellant is that though it is only a boundary wall separating two plots, it really abuts the public road. A contrary stand is taken by the third respondent and the Cochin Corporation. To the south of the plots belonging to the appellant and the third respondent there is a road which leads to M.G. Road. On the western side of the appellant's property is the boundary wall. Only the southern tip of the boundary wall touches the public road on the south. Appellant's contention is that in the Explanation to S.242 of the Municipal Corporations Act building includes a wall or fence of whatever height bounding or abutting on any public street and hence for the construction of the same necessary plan has to be obtained from the Corporation and as that has not been done the Corporation authorities ought to have directed the third respondent to demolish it.

(2.) Under S.244 of the Act construction or reconstruction of a building shall not be begun unless and until the Commissioner granted permission for the execution of the work. On the basis of the said section appellant contended that even though the wall in question is only a boundary wall, permission under S.244 was really necessary. The said contention is not tenable as the boundary wall separating the two plots does not abut on any public street. The Explanation under S.242 makes the position clear that only with respect to wall bounding or abutting on any public street, permission under S.244 is necessary. Merely because the southern end of the boundary wall touches the road it cannot be considered as a wall bounding or abutting on the public street. Essentially it is a boundary wall separating two plots. As it cannot be said that it bounds or abuts on public street on the southern side permission as contemplated under S.244 is not necessary. Such a wall will not come under the definition of the building as provided under the Explanation.

(3.) S.3(4) defines the building. Building includes a house, out-house, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding eight feet in height) and any other structure, .whether of masonry, bricks, wood, mud, metal or any other material whatsoever. From the above definition it is apparent that a boundary wall not exceeding eight feet in height is excluded. Thus the position is that only in eases where the boundary wall exceeds eight feet in height permission of the Corporation is required. As boundary wall has been specifically excluded under S.3(4) it cannot beheld that it would come under the Explanation to S.242.