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Mayandi Chettiar Vs. the Madura Municipality Through Its Commissioner - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad259; (1940)2MLJ1032
AppellantMayandi Chettiar
RespondentThe Madura Municipality Through Its Commissioner
Excerpt:
.....on of the occupation of a gravedigger (section 285). permission of the local authority is required in certain cases such as the digging of a well, tank, pond or fountain. i have already stated the circumstances in which the executive authority can take action, and the completion of a building, as well as the, commencement of a building, are within the scope of the section......august, 1931, the provincial government superseded the madtira municipal council and appointed a special officer to carry out the functions of the council for a period of one year from the 14th august, 1931. this order was passed under the provisions of section 411(1) of the madras district municipalities act, 1920. on the 7th june, 1932, the special officer caused a building belonging to the appellant to be demolished. thereupon the appellant filed in the court of the district munsif, madura town, the suit out of which this appeal arises of the recovery of damages. the suit was subsequently transferred for hearing to the court of the district munsif, madura taluk, whtf held that the appellant's contention was well founded and gave him a decree for rs. 100 with costs. the respondent.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. By an order dated the 10th August, 1931, the Provincial Government superseded the Madtira Municipal Council and appointed a Special Officer to carry out the functions of the Council for a period of one year from the 14th August, 1931. This order was passed under the provisions of Section 411(1) of the Madras District Municipalities Act, 1920. On the 7th June, 1932, the Special Officer caused a building belonging to the appellant to be demolished. Thereupon the appellant filed in the Court of the District Munsif, Madura Town, the suit out of which this appeal arises of the recovery of damages. The suit was subsequently transferred for hearing to the Court of the District Munsif, Madura Taluk, whtf held that the appellant's contention was well founded and gave him a decree for Rs. 100 with costs. The respondent council appealed to the Subordinate Judge of Madura, who reversed the decree of the District Munsif on the ground that the Special Officer had acted within the law. The appellant now appeals to this Court and asks for the. restoration of the decree of the Court of the District Munsif.

2. Before referring to the sections of the Madras District Municipalities Act, 1920, which have application, it will be convenient to state the facts. On the 25th June, 1931, the appellant applied to the couneil for sanction to erect a building for the purpose of storing therein oil manufactured by him and submitted plans, as was required by the building regulations. On the 17th July the Sanitary Inspector reported that he had no objection to the erection of the building, but-without waiting for the sanction of the Executive Engineer the appellant commenced to build and completed the work. On the 20th July, 1931, the Executive Engineer called upon the appellant to submit a plan of the lay-out of the whole survey number. This lawful requirement was, however, not complied with until the 9th May, 1932. After the Executive Engineer had on the 20th July, 1931, called for a plan of the lay-out of the whole survey number no further communication was addressed to the appellant until the 5th May, 1932, when the Special Officer issued a notice, purporting to be pursuant to Sections 338 and 339, by which he required the appellant to demolish his building within four days on the ground that it had been erected 'without municipal licence'. This notice was tendered to the appellant, but he refused to accept it, although four days later he sent the plan of the lay-out as required by the Executive Engineer. On the 7th June, 1932, the Special Officer sent men to the site for. the purpose of demolishing the building and this work was carried out in the presence of officials of the municipality and the Circle Inspector of Police. These facts are not in dispute.

3. The case for the appellant is that the-local authority had no power to demolish his building without taking the steps contemplated by Section 216 of the Act. The case for the respondent council is that the Special Officer had full authority to do what he did by reason of the provisions of Sections 338 and 339. The appellant's reply is that Section 216 is a section which applies in the case of a breach of the building regulations and that Section 338 only applies when no special procedure is laid down. We consider that there is great force in the appellant's contention.

4. The building regulations are contained in Chap. X of the Act. This chapter comprises Sections 191 to 217. At, the time when the appellant applied for sanction to his plans the, executive authority was the Chairman, but he was displaced by the Special Officer as the result of the order of the Provincial Government of the 10th August, 1931. Section 197 states that if a person intends to construct or reconstruct a building, other than a hut, he shall send to the executive authority an application in writing for the approval of the site, together with a site plan of the land, and an application in writing for, permission to execute the work, together with a ground plan, elevations and sections of the building, and a specification of the work. Section 198 prohibits the executive authority granting permission until the approval of the site has been accorded and Section 199 says that construction shall not be begun until the executive authority has granted permission for the execution of the work.

5. Section 216 states the procedure to be followed where the executive authority is satisfied:

(1) that the construction of a building (a) has been commenced without obtaining the necessary permission, or (b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which the permission was based, or (c) is being carried on or has been completed in breach of any of the provisions of the Act, rule or by-law or of any lawful direction or requisition, or

(ii) that any alterations required by a notice issued under Section 205 have not been duly made, or

(iii) that any alteration of or addition to a building or work has been commenced or is being carried on or has been completed in breach of Section 215.

6. In any of these cases the executive authority may make a provisional order requiring the owner or builder to demolish the work done, or so much of it as has been unlawfully executed, or to make such alterations as may be necessary to bring the work into conformity with lawful requirements. These are the provisions of sub-Section (1) of Section 216. Sub-Section (2) directs the executive authority, when he has made a provisional order under sub-Section (1), to serve a copy of it on the owner of the building, together with a notice requiring him to show cause within a reasonable time why the order should not be confirmed. Sub-Section (3) says that if the owner fails to show cause to the satisfaction of the executive authority, the executive authority may confirm the order with any modification as he may think fit and that order shall then become binding on the owner. If an order under sub-Section (3) becomes effective it can be enforced by virtue of the provisions of Section 339.

7. Section 338 on which the respondent council relies is in these words:

If, under this Act, or any rule, by-law or regulation made under it, the licence or permission of the council or executive authority or registration in the municipal office is necessary for the doing of any act, and if such act is done without such licence or permission or registration or in a manner inconsistent with the terms of any such licence or permission, then-

(a) the executive authority may by notice require the person so doing such act to alter, remove, or, as far as practicable, restore to its original state the whole or any part of any property, movable or immovable, public or private, affected thereby, within a time to be specified in the notice; and further,

(b) if no penalty has been specially provided in this Act for so doing such act, the person so doing it shall be liable on conviction before a magistrate to a fine not exceeding fifty rupees for every such offence.

8. Section 339 which is the section which gives power to enforce default, reads as follows:

(1) Whenever by any notice, requisition, or order under this Act, or under any rule, by-law or regulation made under it, any person is required to execute any work or to take any measures or do anything a reasonable time shall be named in such notice, requisition or order within which the work shall be executed, the measures taken, or the thing done.

(2) If such notice, requisition, or order is not complied with within the time so named the executive authority may cause such work to be executed or may take any measures or do anything which may, in his opinion, be necessary for giving due effect to the notice, requisition or order as aforesaid; and further,

(3) if no penalty has been specially provided in this Act for failare to comply with such notice, the said person shall be liable on conviction before a magistrate to a fine not exceeding fifty rupees for every such offence.

9. Sections 338 and 339 art in Chap. XVI which is headed 'Procedure and Miscellaneous'.

10. The provisions of the Act with regard to licences are to be found in Chap. XII within which fall Sections 244 to 285. Licenses are required for the keeping of animals (Section 245), for theuse of premises for certain trades (Section 249), for the keeping of a slaughter-house (Section 255), for the carrying on of a milk business (Section 258), for the carrying of the trade of a butcher, fish-monger or poulterer (Section 259), for the keeping of a private market (Section 262), for the use of a place for the disposal of the dead (Section 279), and for the carrying on of the occupation of a gravedigger (Section 285). Permission of the local authority is required in certain cases such as the digging of a well, tank, pond or fountain. (Section 233), and the construction of a factory in which it is proposed to employ steam-power, water-power or other mechanical power or electrical power (Section 250). Registration may be required in respect of carriages let out for hire and for bicycles and tricycles kept within the municipal area,(Section 104) and for the keeping of carts (Section 105). The Act does not direct any special procedure to be followed for remedying breaches of the law with regard to licences, permissions and registrations, apart from that to be found in the chapter relating to building regulations. Therefore, except in the case of buildings, direct action may be taken under Sections 338 arid 339. The Subordinate Judge did not consider that Section 216 applied to a case where a person had completed a building without sanction, but this opinion is obviously untenable. I have already stated the circumstances in which the executive authority can take action, and the completion of a building, as well as the, commencement of a building, are within the scope of the section. As a matter of fact, Mr. Rama Rao Saheb has not attempted to support this part of the Subordinate Judge's judgment.

11. In our opinion the maxim generalia specialibus non derogant applies in this case. The effect of this maxim is concisely stated in Halsbury's Laws of England, Hailsham edition, Vol. 31, p. 526 in these words:

Where in the same or a subsequent statute a particular enactment is followed by a general enactment, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment is operative, and the general enactment is taken to affect only those other parts of the particular enactment to which it may properly apply.

12. Section 338 cannot be properly applied here because Section 216 specifically provides what shall be done when there is an infringement of the building regulations. The fact that the word 'may' is used in sub-Section (1) of Section 216 does not leave it to the option of the executive authority to proceed under Section 216 or Section 338. In Section 338 the word is also 'may'. The executive authority may not deem it necessary to take any action, but if he does he must proceed according to Section 216. Therefore the Special Officer's order was unlawful and his. action in demolishing the appellant's building without calling upon him to show cause was highhanded. It is true that the appellant had broken the law. He had built without having had his plans sanctioned by the executive authority and he had not complied with' the requirement, of the executive authority that he should submit a plan of the lay-out of the whole survey number. He was greatly in fault, but it has not bees suggested that the building which he erected was in any way contrary to the regulations of the respondent council. This Court asked Mr. Rama Rap Saheb what was the explanation which the Special Officer had to offer for the disregard of the provisions of Section 216 and he was unable to give one. The fact that the appellant had himself disregarded certain provisions of the Act, blameworthy though it was, did, not, as Mr. T.L. Venkatarama Ayyar has remarked, make him an outlaw. The action taken by the Special Officer in this case so far as the Court is able to gather from the record find the statements of fact made by. counsel (which are in no way in conflict) cannot be supported on any ground. There was no request for an explanation and if the building did in fact comply with the regulations - there is no evidence that it did not - the punishment was out of all proportion to the offence. But the main consideration is that the building ought not in any event to have been pulled down without the procedure set out in Section 216 being followed.

13. It has not been suggested that if the Special Officer's action was unlawful, which in our opinion it certainly was, the respondent council should not be called upon to pay damages. The appellant has suffered damage and his loss has been assessed by both the lower Courts at Rs. 100. Therefore the quantum of damages is not open to argument in this Court, and the respondent council must pay the amount.

14. The appeal succeeds and the decree of the District Munsif will be restored. The appellant will have his costs in the Subordinate Court and in this Court based on the amount of his decree.


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