KAKINADA MUNICIPALITY Vs. B V V SUBRAHMANYAM

JUDGEMENT

(1.) The Appellant herein is Kakinada Municipality, which was the defendant in O.S.No.759 of 1972 on the file of the Court of the 1st Additional District Munsif, Kakinada. The correctness of the Judgment of the 2nd Additional Subordinate Judge, Kakinada, in A.S.No. 172 of 1976 is questioned in this appeal.

(2.) The facts found by the Courts below, on a critical examination of the pleadings, may be briefly stated. The respondent is the owner of a building bearing No.34-1- 10 situate in Temple Street, Kakinada. He made an application under Section 209 of the Andhra Pradesh Municipalities Act, 1965 (6 of 1965) (for short 'the Act') on 1.5.1970 (received by the appellant Municipality on 2.5.1970) seeking sanction of the appellant/Municipality for converting the tiled roof of the building into R.C.C. slab and also for making extensions to the existing building. On 14.5.1970 during the course of his official rounds, the Town Planning Officer noticed that the respondent had demolished the old building and was proceeding with the construction of a new building in its place. Finding that the construction was commenced unauthorisedly without the sanction of the Municipality, the Town Planning Officer sent a report on 14.5.1970 to the Municipality that action should be taken to stop the unauthorised construction. In the meantime, on 20.5.1970, a Building Inspector of the Municipality, on his usual rounds, found the respondent proceeding with the construction of the building. He also sent a report to the Municipality pointing out the unauthorised construction by the respondent. Thereupon, a notice dated 20.5.1970 issued under Section 228 of the Act was served on the respondent requiring him to stop the unauthorised construction and calling upon him to show cause why the construction so far made should not be demolished. This notice had no effect on the respondent who quickly proceeded with the construction and completed. On 19.7.1970, the Municipality rejected the application dated 1.5.1970 filed by the respondent seeking permission to convert the old tiled roof into R.C.C. slab and to make extensions to the existing building. The application of the respondent was rejected on the ground that the plan submitted by him is not in accordance with the Building Rules and that, in particular, it did not conform to the requirements of Rule 9 (2) (i) (a) of the Buildings Rules in Schedule III, treated as part of the provisions containing in Chapter IV of the Act. Following the rejection of the application dated 1.5.1970 of the respondent, the appellant-Municipality issued a notice under Section 228 (3) dated 24.7.1970 requiring the respondent to show cause why the building constructed unauthorisedly by the respondent should not be demolished under Section 228 (1) (a) and (c) of the Act. It would appear that action was also taken to prosecute the respondent for constructing the building in violation of the Building Rules. The respondent made an application seeking exemption of the provisions contained in Rule 9 (2) (i) (a) of the Building Rules and this application was rejected by the Director of Town Planning and it was duly communicated to the respondent. In view of the refusal of the respondent's request for exemption, a suit bearing No.759 of 1972 was filed in the Court of the 1st Additional District Munsif, Kakinada, seeking a permanent injunction restraining the appellant/Municipality from removing any portion of the respondent's building. For the sake of completeness of facts, it may also be mentioned that, in the proceedings initiated for prosecuting the respondent, the respondent admitted the construction of the building contrary to the Building Rules and it appears he was fined Rs.10/- for the offence committed.

(3.) The main plea of the respondent in the trial Court was that he made an application under Section 209 of the Act seeking permission for reconstruction of the old building and for making new extensions on 1.5.1970, Section 213 of the Act provides that, within sixty days after the receipt of the application made under Section 209, the Commissioner shall, by written order, either approve or refuse sanction on one or more of the grounds mentioned in Section 215. It is pointed out that there was no communication from the Municipality within the period of sixty days provided under Section 213 rejecting the respondent's application dated 1.5.1970. It is claimed that Section 214 of the Act provided that, if, within the period prescribed by Section 213, the Commissioner has neither given nor refused permission to execute the work according to the plan submitted, such permission shall be deemed to have been given and the applicant may proceed to execute the work. The respondent/plaintiff contended that, as no communication refusing permission to execute the work as per the plan submitted on 1.5.1970 was received within the stipulated period of sixty days, permission should be deemed to have been given to him under Section 213 and therefore, there was no obligation on the part of the respondent to wait for the communication sanctioning permission by the Municipality. It was further claimed that the respondent had only remodelled the old building by converting the tiled roof into R.C.C. slab and did not proceed with the extensions, as originally proposed by him. It was further claimed that the remodelling of the old building by conversion of the old tiled roof into R.C.C. slab could not be considered to the "reconstruction" for purposes of law and, therefore, the permission of the Municipality was not at all necessary and the respondent committed no offence in remodelling the old building by putting on R.C.C. slab. On the above grounds, the respon- dent/pjaintiff contended that the notice dated 18.4.1972 under Section 228 (3) , calling upon him to show cause why the building should not be demolished was illegal and the appellant/Municipality should be restrained from demolishing any part of the building.