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1990 DIGILAW 172 (ORI)

ORISSA STATE ROAD TRANSPORT CORPORATION v. EXECUTIVE OFFICER, DHENKANAL MUNICIPALITY

1990-05-03

G.B.PATNAIK, J.M.MAHAPATRA

body1990
JUDGMENT : G.B. Patnaik, J. - This writ application involves the interpretation of definition of "building" occurring in Section 3(1-a) as well as the meaning of "building" for the purpose of Chapter-XVII in view of the explanation to Section 264 of the Orissa Municipal Act. The question comes up for consideration in the following circumstances. The Orissa State Road Transport Corporation, the Petitioner, has its bus stand in Dhenkanal Town and without making any application for permission a compound wan was constructed in the year 1983. Since the municipal officer, namely the Executive Officer of Dhenkanal Municipality came to know that the compound wall at the bus stand had been constructed without permission, a notice was issued to the Petitioner in exercise of power u/s 273A of the Orissa Municipal Act on 24-6-1983 requiring the Petitioner to show cause within three days from the date of receipt of the notice, as to why the order u/s 273A shall not be confirmed. This notice has been annexed as Annexure-2. The said order subsequently was confirmed on 29-6-1983 under Annexure-4. The Petitioner thereafter made some correspondence with the District Collector and the District. Collector as a sign of good gesture directed the Petitioner to reduce the height of the compound wall. But even then the Petitioner did not conform to the order of the District Collector. Finally the Additional District Magistrate issued the order under Annexure-11 on 16-3-1984 stating therein that in view of the attitude of the Corporation, the Executive Officer would be compelled to demolish that portion of the compound wall which would be above three feet in height unless the Corporation complied with the request of the Collector by 31-3-1984. Against the order of confirmation under Annexure-4, the Petitioner appears to have filed an appeal and though according to Mr. Rath, the said appeal is still pending, but according to the learned Counsel for the Municipality, the said appeal has been dismissed for default. At any rate, we are not concerned with the said appeal in this writ application and that will have its own fate. After receipt of Annexure-11, the Petitioner approached this Court and urged that the provision of Section 273-A would not apply to the construction of a compound wall which is admittedly less than ten feet in height in view of the definition of "building" contained in Section 3(1-a) of the Act. After receipt of Annexure-11, the Petitioner approached this Court and urged that the provision of Section 273-A would not apply to the construction of a compound wall which is admittedly less than ten feet in height in view of the definition of "building" contained in Section 3(1-a) of the Act. The said definition of 'building' in Section 3(1-a) is extracted herein below in extenso: 3. Definition. In this Act unless there is anything repugnant to the subject or context xx xx xx (1-a) 'building' includes a house, outhouse, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding ten feet in height) and any other such structure, whether of masonry, brick, wood, mud, metal or any other material whatsoever. In support of the aforesaid contention reliance has been placed on the decision of a learned Single Judge of this Court in the case of Shyam Sundar Das Vs. Municipal Council, Baripada and Another. The learned, counsel appearing for the Municipal Council, on the other hand, contends that so far as the building regulations contained in Chapter-XVII are concerned, Section 263 provides that no building shall be constructed otherwise than in accordance with the provisions of the Chapter and the rules and Jaws made thereunder and Section 264 provides that an application in writing for approval has to be made when a person intends to construct or re-construct a building. The explanation to Section 264 stipulates that "building" in Sub-section (1) of Section 264 shall include a hut, wall, foundation, plinth or fence of whatever height bounding or abutting any public road and Section 273A is the power of the Executive Officer to direct demolition or alteration of a building wall unlawfully commenced, carried on or completed. In view of the aforesaid specific definition of "building" as contained in the explanation to Section 264, the learned Counsel for the opposite parties contends that a fence abutting the public road irrespective of its height would be a building for the purpose of building regulations and for construction of such a fence or boundary wall necessary permission is required and if a construction has been made without any such permission, then Section 273A will squarely be attracted. The short question for our consideration, therefore, is whether the general definition of "buildings" contained in Section 3(1-a) would also apply to a case of a boundary wall which comes within the definition of "building" within the ambit of the explanation to Section 264 contained in. Chapter-XVII which provides building regulations. In the Orissa case on which Mr. Rath for the Petitioner has placed .reliance, this point had never been brought up for consideration and, on the other hand in paragraph 6 of the judgment his Lordship had merely quoted to be not dispute that no permission was necessary for construction of a boundary without exceeding 10 feet in height obviously referring to definition of "building" in Section 3(1-a) of the Act. In view of the definition of "building" contained in the explanation to Section 264 which occurs in Chapter-XVII and 'provides for the building regulations, the general definition of "building" contained in Section 3(1-a) will have no application .where the provisions of the building regulations are under consideration. In other words, if a boundary wall or a fence comes within the expression "building" as given in the explanation to Section 264, then notwithstanding the general definition in Section 3(1-a), the provisions of the building regulations will apply to such wall and necessarily, therefore, Section 273A of the Orissa Municipal Act will apply to such a case. It is a cardinal principle of construction of a statute that where a specific definition has been provided for in a specific Chapter then that specific definition would apply so far as that Chapter is concerned even though a general definition in respect of the said provision is contained in the Act itself. Accordingly, while construing whether the building regulations contained in Chapter-XVII of the Orissa Municipal Act would apply for the construction of a boundary wall or a fence the expression "building" as defined in the explanation to Section 264 has to be looked into and if that explanation is applied to the present case the conclusion is irresistible that it would apply to the boundary wan that has been constructed by the Petitioner-Corporation. In that view of the matter there is no infirmity in initiating a proceeding u/s 273A of the Orissa Municipal Act since admittedly, no application had been made nor any permission bad been obtained for construction of the said boundary wall or fence abutting the public road. In that view of the matter there is no infirmity in initiating a proceeding u/s 273A of the Orissa Municipal Act since admittedly, no application had been made nor any permission bad been obtained for construction of the said boundary wall or fence abutting the public road. In that view of the matter, we do not find any force in the contention of Mr. Rath for the Petitioner that Section 273A has no application to the facts and circumstances of the present case. The writ application accordingly fails and is dismissed, but in the circumstances, without any order as to costs. The interim order stands vacated. J.M. Mahapatra, J. I agree. Writ application dismissed. Final Result : Dismissed