LADHA RAM Vs. KANPUR NAGAR MAHAPALIKA

JUDGEMENT

(1.) This is plaintiff's Second Appeal arising out of a suit filed by him for permanent injunction restraining the defendant-respondent Nagar Mahapalika, Kanpur, through the Administrator, Nagar Mahapalika, Kanpur, its employees, agents, and Inspectors etc. from demolishing the Chhajja of plaintiff's house situated in No. 124-A/53, Govind Nagar, Kanpur. The case taken by the plaintiff-appellant was that he had made the construction according to the approved and sanctioned plan but on 28th of July, 1967 two inspectors of the defendant along with two peons came and demolished the three Chhajjas of the plaintiff's house. He filed a criminal complaint and reconstructed the aforesaid three Chhajjas. It was alleged that no notice had been given to him by the defendant before demolishing the Chhajjas. The suit was contested by the defendant, inter alia, on the ground that "a notice under Section 10 of the U. P. Regulation of Buildings Operation Act of 1985 had been given to the plaintiff" but he refused to accept the same. It was also contended that the disputed Chhajjas had not been made according to the sanctioned plan. The trial Court framed several issues and held that the disputed Chhajjas bad not been authorised by the defendant and after the demolition of the same the plaintiff" could not re-construct the Chhajjas. On that finding the suit was dismissed. Being aggrieved the plaintiff-appellant filed an appeal and it was contended on his behalf before the lower appellate Court that since notice under the U. P. Regulation of Buildings Operation Act had not been served on him the disputed Chhajjas could not be demolished and secondly that the demolition could be made only under Section 327 of the Nagar Mahapalika Adhiniyam, hereinafter referred to as 'the Adhiniyam' but that was not attracted because the Chhajjas did not constitute any encroachment on the defendant's land. According to the plaintiff-appellant the case was not covered by Section 296 of the Adhiniyam. The learned Lower Court held 'that the service of notice under Section 10 of the Regulation of Buildings Operation Act had not been proved. However, in its opinion the case was covered by Section 296 of the Adhiniyam and since under that provision no prior notice was required, the view taken was that the defendant-respondent did not commit any illegality in demolishing the Chhajjas without any notice and that the plaintiff's suit had been rightly dismissed. Being aggrieved the plaintiff has filed this Second Appeal. It has been contended before me on behalf of the plaintiff-appellant that the view taken by the Court below that the disputed constructions were covered by Section 296 of the Adhiniyam was erroneous. According to the learned counsel it is Section 292 which is applicable and not Section 296 and since Section 296 requires the giving of a written notice in case some unauthorised projection upon streets is made and since no such notice was given in this case the action of the defendant-respondent in demolishing the disputed Chhajjas was illegal and the appellant was entitled to the relief of injunction claimed. After hearing counsel for parties I find that there is considerable merit in the above contention. Sections 292 and 296 both find place under the heading "projections and Obstructions". Section 292 provides for prohibition of projection upon streets etc. and in so far it is relevant for the present purpose reads as under; " (1) Except as provided in Section 293, no person shall erect, set up, add to, or place against or in front of any premises any structure or fixture, which will. (a) overhang, but or project into, or in any way encroach upon or obstruct in any way the safe or convenient passage of the public along any street, or (b ). . . . . . . . . . . . (2) The Mukhya Nagar Adhikari may, by written notice, require the owner or occupier of any premises to remove or to take such other order as he may direct with any structure or fixture which has been erected, set up, added to or placed against, or in front of, the said premises in contravention of this section or of any law in force in the city on the day immediately preceding the appointed day. " It would be seen that specific provision has been made in this section in regard to protection upon streets. Such projections must have been erected, set up, added to or placed against or in front of any premises, any structure or fixture which may overhang, but, or project into or in any way encroach upon or obstruct in any way the safe or convenient passage of the public along the street. The disputed constructions consist of projections on three sides of the plaintiff-appellant's house, and they overhang as also project into the public street and conveniently they will be covered by this provision. Section 296 makes provision for another situation. It says that the Mukhya Nagar Adhikari may, without notice, cause to be removed: " (a) any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or temporary nature or any fixture which shall be erected or set up in or upon or over any street or upon or over any channel, drain, well etc. " It is not necessary to mention clauses (b) and (c) of this section. The question is whether the disputed construction can be covered by the expression "other structure" because certainly they cannot be regarded as wall, fence, rail, post, step or booth. In my opinion the expression "other structure" should be read ejusdem generis with the words preceding it. In other words it sould be given the same meaning which is to be given to a wall, fence, rail, post, step or booth. There is another aspect and it is that these two provisions occur under the same heading. Section 292 makes provision for specific type of constructions which are in the nature of projections upon streets while Section 296 provides for removal of any thing which may have been erected, deposited or hawked or exposed for sale in contravention of the Act. Following the rule of harmonious construction, the two provisions have to be read in a manner so as to make both of them workable and not in a manner so as to make one of them otiose. If for the time being it may be accepted that the expression "other structure" can include projections of the nature as involved in the present case, then certainly Section 292 would be rendered nugatory and such a construction cannot be proved. Disagreeing with the Court below, therefore, I hold that the disputed projections would be covered by Section 292 and not Section 296 and since Section 292 requires giving of a written notice requiring the owner to remove or to take such order as the Mukhya Nagar Adhikan may direct and since no such notice was given, the demolition of the Chhajjas was not legal and the plaintiff-appellant is entitled to the relief of injunction claimed by him. It shall, of course, be open to the defendant-respondent to take such actioa as is permissible under the law because it has been found as a fact that the disputed Chhajjas had not been authorised by the defendant-respondent. In the result the appeal is allowed and the suit of the plaintiff-appellant is decreed for permanent injunction as claimed. This will, however, not prevent the defendant-respondent from taking such other action as may be permitted under the law. The plaintiff-appellant will get his costs of the Courts below from the defendant-respondent but in this Court the parties will bear their own costs. .