CORPORATION OF COCHIN v. VASUDEVAN — 1987 DIGILAW 320 (KER)

Judgment :- 1. This appeal has been directed against the judgment and decree in OS No. 125 of 1978 on the file of the Court of Third Addl. Subordinate Judge, Ernakulam. The said suit was filed by the respondent for recovery of damages from the appellant, the Corporation of Cochin towards the loss sustained by the respondent as a result of demolition of the building of the respondent at the instance of the Commissioner of Cochin Corporation. 2. The facts that led to the above suit are as follows: The respondent submitted a plan to construct a building in a plot in Survey No. 1/8 of Elamkulam Village on the northern side of the National Highway at Kaloor. The plan was approved by the Corporation on 1-2-1975. During construction it was noticed that there was deviation from the plan submitted which would violative the building rules. In the circumstances a notice Ext. A3 was served by the Commissioner on the respondent directing him to show cause why the unauthorised construction should not be demolished. The respondent submitted explanation Ext. A4 on 11-4-1975 stating that be may be excused if there was any variation in the construction. Thereupon the Commissioner issued an order Ext. A4 dated 3-5-1975 saying that the explanation was not satisfactory and directing the respondent to demolish the construction within 7 days from the date of the order. It was also stated therein that if the order was not complied with, further action will be taken by the departmental officers for demolishing the construction. The respondent filed Ext. A5 appeal before the Corporation Works Committee and a stay was obtained preventing the Corporation authorities from taking further action. Ext. A6 contains the stay order passed by the Chairman, Standing Committee, Works, Corporation of Cochin. The stay order was communicated to the respondent and Ext. A6 is the letter communicating the order of stay passed by the Chairman, Works Standing Committee Corporation of Cochin. It is the respondents case, that the stay order was taken to the Commissioner on 5-5-1973 but the Commissioner disregarded the order of stay. Thereupon the Chairman of the Works Committee directly wrote to the Commissioner intimating the stay order passed by the Committee. Despite the stay order and before the expiry of the period granted for demolition in the order Ext. Thereupon the Chairman of the Works Committee directly wrote to the Commissioner intimating the stay order passed by the Committee. Despite the stay order and before the expiry of the period granted for demolition in the order Ext. A4, the Corporation Building Inspector and some other officers of the Department came to the site in the company of some police officers on 9-5-1975 and forcibly demolished the building disregarding the protests raised by the plaintiff. The respondent's case is that the Commissioner issued such orders for demolition before the time limit out of personal grudge against him. The respondent alleged that the action of Commissioner in demolishing the constructions was beyond his authority. According to the respondent, because of the illegal act of the Corporation, he sustained a loss of more than Rs. 20,000/- and also sustained heavy loss by way of income that be could have derived from the building. Ext A7 is a complaint lodged by the respondent before the Chairman, Works Committee, about the demolition, notwithstanding the stay order issued by the Chairman in which the respondent requested him to take proper action in the matter. The respondent issued a lawyer's notice Ext. A8 to the Commissioner claiming Rs. 20,000/- towards damages sustained by him on account of demolition and calling upon him to pay the amount within one month from the date of the said notice and informing him that on his failure proper legal action would be taken against the corporation as well as the Commissioner for appropriate relief. To this the Commissioner sent Ext. A9 reply dated 19-5-1975 pointing out that the Building Inspector reported that the respondent was constructing the building in violation of the Building Rules and therefore a notice under S.263(1) of the Kerala Municipal Corporation Act was issued to the respondent requiring him to show cause why the provisional order should not be confirmed and it was served on him on 7-4-1975 and still on 9-4-1975 when the Building Inspector inspected the site be found that the party pas proceeding with the construction ignoring the above provisional order and accordingly another stop memo was issued on 10-4-1975 and the work was stopped with police help on 11-4-1975. It was further stated that the reply to the provisional order dated 5-4-1975 was not satisfactory and on 4-5-1975 the Town Planning Officer informed him that the party was carrying on the roof concreting of the building on that day in utter defiance and disregard of the prohibitory order issued and therefore in order to prevent the continuance of the unauthorised act, demolition of the unauthorised construction was ordered and effected under S.405(1)(b) of the Kerala Municipal Corporations Act. It was also stated therein that be was not aware of an appeal petition and the order of stay before demolition on 9-5-1975 and that the Standing Committee Chairman had no power to issue a stay against the order of the Commissioner. He disclaimed the liability to pay the damages either in his official capacity or in his personal capacity. On receipt of this, the respondent again caused to send a lawyer's notice pointing out that the demolition was before expiry of the period granted to him and in violation of the stay order issued by the Chairman and bringing to his notice that the Corporation Council itself had resolved to compensate the respondent. 3. In the written statement filed on behalf of the appellant it was contended that the suit was not maintainable and it was barred by limitation under S.424(2) of the Kerala Municipal Corporations Act and that no suit for damages or compensation would lie against the Corporation in respect of any act done in pursuance or in execution or intended execution of the said Act and that therefore the plaintiff bad no cause of action to file the suit. It was also stated in the Written Statement that the reply sent by the respondent was unsatisfactory and the respondent carried out the roof concreting of the building in spite of the notice and therefore the demolition was effected under S.405(1)(b) of the Act. The quantum of damages claimed also was disputed in the written statement. 4. The trial court found that the suit was not barred by limitation and the action of the Commissioner in demolishing the construction before the expiry of the period granted and despite the stay order issued by the Chairman, Works Committee is illegal and therefore the defendant is liable to pay compensation which the lower court assessed at R.7,250/-. Accordingly a decree for recovery of Rs. Accordingly a decree for recovery of Rs. 7,525/- as damages from the Corporation together with interest at 6 per cent from the date of the suit, was granted by the trial court. In this appeal also two contentions were raised by the counsel for the appellant namely (1) the suit is barred by limitation under S.424(2) of the Kerala Municipal Corporation Act, and (2) since the building was constructed in deviation from the approved plan, demolition under S.405(1)(b) of the Act is justified and no question of damage or compensation can arise under such circumstances. 5. We will first deal with the question of limitation raised by the counsel for the appellant. Sub-sections 1 and 2 of S.424 read as follows: 1. No suit for damages or compensation shall be instituted against the corporation or any municipal authority, officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance or in execution or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye-law, regulation or order made under it until the expiration of one month after a notice has been delivered or left at the municipal office or at the place of abode of such officer, servant or person, stating the cause of action, the relief sought, and the name and the place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left. 2. Every such suit shall be commenced within six months after the date on which the cause of action arose or in case of a continuing inquiry or damage during such continuance or within six months after the ceasing thereof." It was strenuously argued by the counsel for the appellant that sub-section (2) prescribes a period of limitation of six months after the date on which the cause of action arose and that since the suit was filed after six months, it is hopelessly barred. It is true that in the instant case the cause of action arose on 9-5-1975 on which date the demolition was effected and the suit was filed only on 22-3-1978. It is true that in the instant case the cause of action arose on 9-5-1975 on which date the demolition was effected and the suit was filed only on 22-3-1978. The Counsel for the respondent, however argued that the resolutions passed by the Corporation evidenced by Ext. A15, A16, A17, A18 and A19 would amount to acknowledgement of their liability under S.18 of the Limitation Act and that the date of the last resolution was on 20-8-1977 and that therefore the limitation will run only from that day. It was also contended by the counsel that one month's notice period also has to be excluded as provided under S.15 of the Limitation Act for computing the period of limitation. S.18 of the Limitation Act provides that "where before expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed or by any person through whom be derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. The Corporation Council met on 14-5-1975 and had discussed the action of the Commissioner in effecting the demolition before the expiry of the due date and in violation of the stay order passed by the Works Committee Chairman and ultimately resolved that the action of the Commissioner during the pendency of the exemption application before the Government was illegal. Accordingly it passed a resolution on 15-5-1975 to the effect that the Corporation would be liable to pay damages sustained by the party. It was also resolved as per the said resolution that the loss should be realised from the Commissioner after getting necessary sanction from the Government. Pursuant to this sanction of the Government was sought for only for the purpose of realising this damages personally from the Commissioner. Accordingly the matter was recommended to the Government. But on the basis of some petition filed by the Commissioner the matter was returned to the Council for reconsideration on the ground that this resolution was passed without including the matter in the agenda of the meeting. The acknowledgement referred to above was made by the Council on 15-5-1975, that is within the period of limitation provided under S.424(2). But on the basis of some petition filed by the Commissioner the matter was returned to the Council for reconsideration on the ground that this resolution was passed without including the matter in the agenda of the meeting. The acknowledgement referred to above was made by the Council on 15-5-1975, that is within the period of limitation provided under S.424(2). The order of the Government was passed only on 21-4-1976. The Council again met on 27-4-1976 and passed the resolution acknowledging the liability of the Corporation to give compensation to the plaintiff and then to realise the same from the Commissioner after obtaining sanction from the Government. The Government again considered the matter and finally cancelled the resolution passed by the Council on 15-5-1975. The resolution was cancelled only as per the order dated 5-7-1977. Ext. A18 was passed by the Council again acknowledging the liability to compensate the respondent. Finally Ext A19 resolution dated 20 8-1977 was passed by the Corporation Council acknowledging the liability and resolving to bring into effect the previous resolution dated 27-4-1976 with the sanction of the Government. It can be seen that each of these acknowledgements was made during the subsistence of the prior acknowledgement and the last one was dated 20-8-1977. Within six months of that date, that is to say, on 17-2-1978 the suit notice was issued to the defendant which was acknowledged by the defendant on 21-2-1978.19th and 20th of February were holidays and hence the notice was served on 21-2-1978. The notice period also has to be excluded as stated above. The suit was filed on 22-3-1978 which was perfectly within the period of limitation. This submission of the counsel for the respondent has been found favour with the trial court. However, the learned Counsel for the appellant strenuously argued that the provisions of the Limitation Act are not applicable to limitation prescribed in a special enactment like the Kerala Municipal Corporations Act 1961. He alternatively contended that in any event application of the provisions of the Limitation Act in respect of period or limitation prescribed under S.424(2) of the Municipal Corporations Act, 1961 has been excluded by necessary implication. 6. He alternatively contended that in any event application of the provisions of the Limitation Act in respect of period or limitation prescribed under S.424(2) of the Municipal Corporations Act, 1961 has been excluded by necessary implication. 6. S.29(2) of the Limitation Act 1963 provides as follows: 'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule the provisions of S.3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. the provisions contained to S.4 to 24 (inclusive) shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law." A Division Bench of this Court had occasion to consider the scope of application of S.29(2) of the Limitation Act, 1963 to the period of Limitation prescribed under S.120 of the Major Port Trust Act, 1963, in the ruling in Cochin Port Trust v. Associated Cotton Traders Ltd. and Others (1983 KLT. 562), The Division Bench held that in view of the provisions of S.29(2) of the Limitation Act, S.4 to 24 of the Limitation Act will be applicable to the period of limitation prescribed under S.120 of the Major Port Trust Act, in the absence of an express exclusion of the application of S.4 to 24 of the Limitation Act. The Division Bench further held that an implied exclusion is not sufficient for the purpose of S.29(2) of the Limitation Act. In this view of the matter the Division Bench held that in computing the period of limitation of six months provided under S.120 of the Major Port Trusts Act, the period of notice has to be excluded. We are in respectful agreement with the view expressed by the Division Bench in the above ruling. Applying the same reasoning to the facts of this case, it has to be held that the provisions of S.4 to 24 of the Limitation Act are applicable in computing the limitation prescribed under S.424(2) of the Municipal Corporations Act. We are in respectful agreement with the view expressed by the Division Bench in the above ruling. Applying the same reasoning to the facts of this case, it has to be held that the provisions of S.4 to 24 of the Limitation Act are applicable in computing the limitation prescribed under S.424(2) of the Municipal Corporations Act. Mention has already been made regarding the periods of exclusion available to the respondent under S.15 and 18 of the Limitation Act in computing the period of limitation under S.424 (2) of the Municipal Corporations Act. Therefore the suit is not barred by limitation. 7. The next question to be considered is whether the appellant is liable to pay compensation for demolishing the building constructed. As per Ext. A2 Memo, the plaintiff was directed to stop the work on the ground that the construction was in deviation of the plan. Dws.1 and the then Executive Engineer of Cochin Corporation dw. 3 have deposed that they inspected the site while the work was in progress and they found that the construction was made in deviation of the plan approved by the Corporation of Cochin. The Commissioner issued Ext. A3 order on 5-4-1975 under S 263(1) of the Municipal Corporations Act directing the respondent to demolish the building for unlawful work done and to show cause why the said provisional order should not be confirmed and why the unlawful work carried out should not be demolished. The plaintiff filed his explanation on 11-4-1975 stating that the work was entrusted with a contractor and that he became aware of the slight deviation from the approved plan only after receipt of the memo issued from the Corporation Office and requesting that the building should not be demolished on the basis of such a minor deviation. But the Commissioner issued Ext.A4 0.3-5-1975 directing the respondent to demolish the construction within seven days of the receipt of that order. It was also stated in Ext. A4 that on failure to comply with the order the construction will be demolished. Thereupon the respondent filed Ext. A5 appeal and also obtained a stay order staying all further proceedings from the Chairman, Standing Committee, Works, Corporation of Cochin, which is evidenced by the endorsement in Ext. A5 and A6. It was also stated in Ext. A4 that on failure to comply with the order the construction will be demolished. Thereupon the respondent filed Ext. A5 appeal and also obtained a stay order staying all further proceedings from the Chairman, Standing Committee, Works, Corporation of Cochin, which is evidenced by the endorsement in Ext. A5 and A6. pw.1 deposed that this stay order was sent to the Commissioner on 3-8-1975 itself and officers of the Corporation before the date of demolition and in disregard of the stay order the Corporation Officers demolished the building with the assistance of the Police Officers. Ext. A4 had given seven days' time to demolish the construction. But the demolition was effected on 9-5-1975 a day before the expiry of the specified time. The appellant had a contention that the stay order was not communicated to the Commissioner and it was not with his knowledge. But in the circumstances of the case it is difficult to believe that the Commissioner was not aware of the order passed by the Chairman. Standing Committee, Works, Corporation of Cochin, staying further proceedings pending disposal of the appeal filed by the respondent. In any event the demolition before the expiry of the period shown in Ext. A4 is clearly unjustified and therefore it has to be held that the demolition of the building by the Commissioner is an illegal act in any view of the matter, in the circumstances of the case. The learned Counsel for the appellant argued that under S.405(1)(a) and (b) of the Municipal Corporations Act the Commissioner has been empowered to require a person who is doing an act without the required licence or in a manner inconsistent with the terms of such licence or permission, to alter, remove or restore to its original state the whole or any part of the property affected thereby within a time to be specified in the notice and also to enter into or on any building or land where such act is done and take all such steps as may be necessary to prevent the continuance of such act. Subsection (2) of S.405 has also been pressed into service in support of the contention that no claim shall lie against the Commissioner or other persons for any damage caused by the exercise of the power given under the Section or by the use of force necessary for the purpose of carrying out the provisions of that Section. 8. Clause (b) of Sub-section (1) of S.405 of the Act would clearly indicate that the power is limited to preventing the continuance of offence and does not extend to demolish the construction. The immunity from claim for damages provided in sub-section (2) of S.405 is only in respect of the power exercised under clauses (a) and (b) of sub-section (1) of S 405. In the instant case, the demolition of the building was effected before the expiry of the period granted in Ext. A4 for removal of illegal construction and in disregard to the order of stay issued by the Chairman, Standing Committee, Works, and such act can be termed only as illegal and is not protected under sub-section (2) of S.405 of the Act so as to claim immunity from a claim for damages. It is also to be noticed that an appeal filed by the respondent against the order of the Commissioner and an application submitted by the respondent for necessary exemption for the deviation was pending consideration. It can be seen from Exts. A16, A17, A18 and A19 that the Corporation has practically conceded the liability to pay damages to the appellant for demolishing the building by the Commissioner. Therefore this question has to be answered in favour of the respondent and against the appellant. 9. It is not shown that the amount of Rs. 7525/- fixed by the lower court as compensation is in any Way excessive. The respondent has filed a cross-objection claiming a higher sum, but in view of the Commissioner's report Ext. Cl we do not find any justification to allow the cross-appeal filed by the respondent. In the result, the appeal and cross appeal fail and they are accordingly dismissed. However, in the circumstances of the case, there will be no order as to costs.