EMPEROR Vs. BRAZ HDE SOUZA

JUDGEMENT

(1.) The question referred to me may be formulated thus :-Whether the reconstruction of a wall upon its own foundation is necessarily the erection of a building within Section. 96 of the District Municipal Act ? According to the explanation appended to that section the expression to erect a building throughout Chapter IX includes any material alteration, enlargement, or reconstruction of any building. Whether the reconstrution of a Wall of whatever importance forming part of a house is necessarily the erection of a building , depends upon whether the interpretation clause, Section 3 (7), is to be taken as substituting impliedly for the word building wherever it occurs in the Act not merely all erections falling within the ordinary comprehension of the term building but also all other things included within the definition. It is recognised in England to be a rule with regard to the effect of interpretation clauses of a comprehensive nature such as we have here that they are not to be taken as strictly defining what the meaning of a word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they should (see the judgment of Lord Denman in Queen v. The Justices of Cambridgeshire (1838)7 Act. & E. 480, 491 of Lord Selborne in Mem v. Jacobs (1885) L.R. 7 E, & lr, App. 481, 493 and of Lord Watson in the Mayor of Portsmouth v. Smith (1885) 10 App. Cas. 364, 375.

(2.) In the present case the only complaint is that a small wall was built on an old foundation without the permission of the Municipality. The Magistrate has held that in erecting this wall the accused was not erecting any building within Section 96, and this conclusion must, I think, be accepted unless it can be said as a matter of law that the material reconstruction of a small wall must constitute the erection of a building.

(3.) For the reasons above stated I do not think that the Court is precluded from giving to the word building in that section its ordinary meaning, a meaning which the neighbouring sections indicate as the sense in which the Legislature was using that expression in the group of sections of which Section 96 forms part. It is possible that the re-erection of a wall may (under certain circumstances) amount to the materialr reconstruction of a building under Section 96 But I do not think it necessarily does. In Emperor v. Kalekhan Sardarkhan (1910) 12 Born. L, R. 1060, referred to by Chandavarkar J., the applicant had treated the re-erection of his wall as falling within the section and had applied for leave to re-ercet it but did not wait to see if the permission would be granted or refused and there was no appearance on behalf of the accused. In the present case the wall is a small wall and has all along been regarded by the applicant as not a building within the Section 96. I concur with Mr. Justice Heaton in thinking that the application should be dismissed.