THE VIJAYAWADA MUNICIPALITY Vs. NAGANATH RAMACHANDRA ROWLWAR

JUDGEMENT

(1.) This is an appeal by the defendant Vijayawada Municipality, from the Judgment and Decree dated 15th March, 1955, of the Subordinate Judge Vijaywada, confirming the decree, draft dated 31st July, 1954, of the District Munsif Vijayawada, by which the plaintiff was granted a preventive injunction against the defendant.

(2.) The plaintiff is the owner of the plaint schedule property, bearing D. No, 10/104 in the defendant-Municipality. On the western side of the property, which abuts the main road, there was a godown consisting of one big hall. On the eastern side of the property, which abuts the Bhavanarayana street, there was a latrine and a two roomed out-house. The plaintiff informed the Commissioner of the Municipality by a petition, Exhibit B-4, dated 9th February, 1953, that he was replacing the windows of the hall by door frames and effecting necessary repairs with mortar. But actually he also erected there three partition walls inside the hall so as to convert it into four rooms with separate entrances, which he could let separately as he found no demand for the single big hall. Besides, he effected repairs to the latrine and to the out-house by plastering the walls and replacing the zine sheet roof of the out-house by a tiled roof. The Commissioner of the Municipality issued a provisional order under section 216 (1) and (2) of the Madras District Municipalities Act (V of 1920) (hereinafter called the Act), Exhibit A-1, dated 5th March, 1953, stating that he (plaintiff) had commenced the construction of shop rooms without licence and calling upon him to remove the unauthorised construction within two days. Upon the plaintiff's representations, the premises were inspected by the Building Inspector and the Town Planning Officer. Then the Commissioner issued the final order Exhibit A-3, dated 31st July, 1953, under section 216 (3) of the Act, stating that the three partition walls in the western building and the latrine and two shop rooms (i.e., out house) on the western side were all new constructions which offended rule 9 (2) (a) of the Revised Building Rules and calling upon the plaintiff to remove them within three days, falling which they would be removed departmentally at his cost. The plaintiff preferred an appeal to the Municipal Council, Exhibit B-5, dated 7th September, 1953, against the order Exhibit A-3. While the appeal was pending, he instituted the suit on 11th Exhibit A-3. While the appeal was pending, he instituted the suit on 11th September, 1953, basing his cause of action on Exhibits A-1 and A-3 and praying for the relief of a permanent injunction restraining the defendant Municipality from demolishing or interfering with the plain schedule building in any manner.

(3.) The plaintiff's case was that his replacing the doorways and erecting partition walls for the hall did not require permission to a 'construction or reconstruction of a building, that the work did not require permission and rule 9(2) (a) was not applicable, that the latrine and the two roomed out-house which he repaired had been in existence for 40 years and were not new construction and that the defendant's notice requiring demolition was therefore illegal. Rule 9 (2) (a) of the Revised Building Rule prohibits the construction of any building within 4 feet, of the boundary of a public or private street; an exception being made in favour of a plinth, steps and other similar structure and fence not exceeding 8ft., in height. The defendant's case was that the latrine and the two rooms on the cast were entirely new constructions, that the plaintiff did not apply to the Municipality for prior permission to construct them and the partition walls, that permission could not have been given even if he had applied as they were within 4ft., of the road margin and that the plaintiff had flagrantly violated the Building Rules. The issues framed in the suit were: