1. The plaintiff appellant installed three wooden almirahs in Block A Connaught Place, New Delhi, near Wangers Restaurant. It appears that on 16th July, 1956, some member of the staff of New Delhi Municipal Committee inspected the site and made a report dated 18th July, 1956. Exhibit D/2, which inter alias recites 'during my round on 16th July 1956, I ntoiced that Sh. Hira Lal has gto constructed three wooden almirahs, two in the corner and one on the wall in the verandah of Block `A' Con. Place, near 'Wangers', without the permission of the Committee. In pursuance of this report, the respondent New Delhi Municipal Committee, issued a ntoice to Hira Lal under section 195 of the Punjab Municipal Act requiring the appellant to demolish the said Almirahs.
2. The ntoice recites the description of the almirahs as 'two wooden almirahs measuring 6'x 5' each in the corners and one wooden Almirah measuring 6'x 3' along with the puce walls in the verandah of Block `A' ... ' On 18th December, 1966, the appellant filed a suit for a declaration that the said ntoice under S. 195 of the Punjab Municipal Act was illegal and void and for an injunction restraining the respondent from dismantling the said almirahs. It was alleged by the plaintiff that the said almirahs had been fixed in the year 1954 and no ntoice could be issued after the expiry of six months from the date of construction. It has nto been disputed by the respondent that if the construction had been set up six months before the date of the ntoice, the respondents would nto be competent to demolish the same.
3. The lower Appellate Court on proper appreciation of the evidence came to the conclusion that the almirahs were installed in July, 1956. This pure finding of the fact being based on evidence, it is nto open to me to review the same. I consequently hold that the ntoice under section 195 of the Punjab Municipal Act was within time. Two toher contentions raised by the plaintiff before the lower Appellate Court were:
1 The almirahs did nto fall within the definition of the word `building' in Section 3(2) of the Punjab Municipal Act.
2 Fixing of the almirahs did nto amount to erection or re-erection of a building within the meaning of Section 3(5) of the said Act.
(2) buth these contentions were repelled by the lower Appellate Court, which came to the conclusion that the expression `building' includes 'any shop' and since the almirahs were being used for selling goods, they constituted `building' within the meaning of the said provision. In my opinion, the lower Appellate Court suffered itself to be led astray into treating the carrying on of trade as per se evidence of its being `building' within the meaning of section 3(2) of the said Act. No doubt, the expression `building' includes 'any shop', but carrying on of trade is nto decisive of every place of business being a building. Whether a premises is a building or nto, the answer must depend on the nature of the structure and nto the nature of the business carried on.
4. If the contention of the New Delhi Municipal Committee were to be upheld, it would mean that even fixing a book rack in a room of a house for keeping books would need the permission of New Delhi Municipal Committee. I am unable to subscribe to that view. The words shop, house, hut, out-house, shed or stable are indicative of the nature of the structure and all these words lead me to only one conclusion, namely, that a small wooden almirah would nto amount to a building. Section 189 of the said Act forbids the erection or re-erection of the Committee. The expression 'to erect or re-erect any building' is defined in S. 3(5) of the said Act and that further indicates that almirahs are nto within the prohibition of the statute.
5. In Emperor v. Hasanbhai Rehmathbhai Vinawala Air 1942 Bom 94, wire fence or a fence 6 feet in height and consisting of wooden plank attached to posts embedded in earth on the boundary of the property was held nto to be a building. Similarly an enclosed space of canvas screen was held outside the definition of building in Kamla Nath v. Municipal Board of Allahabad (1905) 28 All 199. These cases may nto be of any direct assistance in deciding the question but surely indicate the nature of structures that are treated as building. It is obvious that no one would in common parlance, style said almirahs as building and I do nto think the definition of the word as given in the Act extends the meaning so far as to permit one term such like almirahs as 'building'.
6. It is nto disputed that the applicant had set up these almirahs with the permission of the owner of that place. Mr. Bishamber Dayal, the learned counsel for the respondent then drew my attention to paragraph 5 of the plaint and said that the plaintiff's main grievance was about the bar of limitation in issuing the ntoice under Section 195 of the Punjab Municipal Act and the question whether the almirahs were 'building' or nto had nto been raised in the plaint and should nto have been permitted to be agitated by the courts below. It appears from the perusal of the judgments of buth the Courts below that the point was raised and decided there on the basis of the description given in the report and the ntoice under Section 195 of the Punjab Municipal Act. In these circumstances, I do nto feel inclined to accept Mr. Bishamber Dayal's suggestion.
7. Mr. Bishamber Dayal then pointed out that the verandas in the Connaught Place have recently been declared public streets and it was, thereforee, open to the New Delhi Municipal Committee to demolish the said unauthorised structures. That question does nto arise before me and it may be open to them to demolish the structures on that ground. But I am really nto called upon to answer that question at this stage. In this view the appeal must be allowed and the judgments of the two Courts below set aside. The plaintiff, is thereforee granted a declaration that the ntoice under section 195 of the said Act was illegal and an injunction restraining the New Delhi Municipal Committee from demolishing the almirahs in pursuance of the said ntoice. It may, however, be open to New Delhi Municipal Committee to take such action in the matter of demolition as may now be open to them under any provision of law. In the circumstances of the case, however, the parties will bear their own costs throughout.
8. Appeal allowed.