HANSRAJ TIRATHRAM Vs. ADMINISTRATOR MUNICIPALITY JAMMU

JUDGEMENT

(1.) THIS is a plaintiffs second appeal from the decision of the Additional District Judge at Jammu who on appeal reversed the decree of the trial court. The suit out of which this second appeal arises was instituted against the Administrator of the Municipal Committee, Jammu, for a permanent injunction to restrain him from causing the removal or demolition of the verandah of the plaintiffs shop building. The plaintiff previously owned a shop building. He applied to the Municipal Committee for sanction to re -erect it. His application was duly accompanied by a site plan of the proposed reconstruction. The Municipal Committee accorded sanction to...... reconstruct, subject to the condition that no part of the reconstructed building was to be within a distance of 22 feet from the centre of the public road which lay in front. In pursuance of this sanction, the plaintiff reconstructed the shop building. It is common ground that the old shop building was reconstructed from its very foundations. The basement of the building was substantially raised in height and other improvements of a radical nature were effected to the structure. The verandah which constituted but a subsidiary part of the building was also substantially raised in height so as to bring it to the level of the rest of the building. The wall as well as the pillars of the verandah were increased in height. Two new brick pillars were erected to prop the roof of the verandah which was also constructed anew. The building so reconstructed was found by the Administrator of the Municipal Committee to have contravened the condition subject to which sanction to re -erect had been granted to the plaintiff. The defendant therefore served a notice on the plaintiff calling upon him to remove the offending portion of the shop building, namely, the verandah. This led the plaintiff to file the suit for injunction against the defendant. The trial court confined its attention to the verandah and came to the conclusion that what was done to .it constituted only repair and not reconstruction or re erection, and therefore decreed the suit. On appeal by the defendant the Additional District Judge came to the conclusion that it was a case of reconstruction and dismissed the suit. The plaintiff has now come up to this court in second appeal.

(2.) THE main facts of the case are singularly simple and have been admitted by both sides. The dispute relates only to the legal inference to be drawn from the admitted facts. According to the plaintiff the verandah of the building was not re -erected or reconstructed but was only repaired. He therefore argued that even if the verandah stood within a distance of 22 feet from the centre of the public road, he cannot be asked to remove it, because the condition imposed by the Municipal Committee related to re -erection or reconstruction and not to repair. On the other hand, the... ...defendant vigorously urged that it was a clear case of reconstruction and material alteration involving a blatant violation of the condition subject to which sanction was accorded to the plaintiff and that, therefore, the plaintiff has no right to obtain an injunction against the defendant who is entitled in law to enforce obedience to the condition subject to which the plaintiff was permitted to re -erect the building. This controversy between the parties calls for a consideration of what constitutes repair in the eye of law. The expression repair signifies restoration to the original condition. Anything which substantially improves or materially alters a thing from its original condition cannot be said to be merely a repair of that thing: it will be bringing into existence an improved thing, an altered thing, a new thing for all intents and purposes. But it cannot be forgotten that repair involves an element of renewal; yet renewal of the whole or substantially the whole and not a lesser part of the whole cannot be said to be repair. The full implication of what constitutes in law repair has been brought out in a passage in the judgment of Buckley L. J. in Lurcott v. Wakely & Wheeler, (1911) I. K. B. 905 at pages 923, 924. Says Buckley L. J.: -

(3.) THIS passage has been regarded in later cases as the leading exposition on the subject of the difference between repair and renew see, for instance, Rhodesia Railway Ltd V. Income -tax Collector Bechuanaland (1933) A. C. 336 P. C. In this Privy Council case Lord Macmillan referred with approval to the decision in Highland Rly. Co V. Balderston, (1889) 2 Tax Cas 435 in which a distinction between what amounts to a repair on the one hand and an improvement of corpus on the other was pointed out. Although a replacement of worn out iron rails by new iron rails could be a repair, substitution of steel rails for iron rails was held to be a material alteration and an improvement in the corpus and therefore not a repair.