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2001 DIGILAW 297 (JK)

Jaideep v. Jammu Municipality

2001-11-26

T.S.DOABIA

body2001
1. The petitioner was served with a notice under Section 9(3) of the Municipal Act Samvat 2008. He was called upon to remove the unauthorised construction within 7 days. This notice was challenged before the J&K Special Tribunal, Jammu. He admitted that he had taken a plot measuring one kanal on rent and that he has constructed a temporary community hall. This is said to be made of Bamboos and Tarpalulin (Canvass cloth). The plea taken by the petitioner was that this construction would not fall within the definition of building as occurring under Section 229(3) of the Municipal Act. It was further stated that the petitioner had spent lot of money and had booked it for-marriage purposes and if structure which consists of a temporary community hall is ordered to be removed then he would be put to great loss. 2. The Tribunal was of the view that the material which has been used by the petitioner for the construction of temporary construction is highly inflammable and the incident where a temporary hall constructed at Dabwali in Haryana State caught fire and several lives were lost was recalled. The Tribunal was of the view that this could occur to this accommodation raised by the petitioner. Ultimately direction was given to the Municipality that as the petitioner has already accepted bookings upto 26th of Jan 1999, the Municipality would demolish the same only after 27th of Jan 1999. This decision was given so that the petitioner is not reduced to a state of financial bankruptcy and may not have to face litigation in the court from his customers. It is this order which is subject matter of challenge in this petition. 3. The basic argument which has been raised is that the accommodation in question does not fall within the definition of building. Such is the plea taken in paragraph "6(B)" of the petition. It is accordingly, pleaded that if the accommodation in question does not fall within the definition of building then a notice could not be issued. Further plea was taken that the accommodation in question was set up with the consent of the Municipality and, therefore, Municipality cannot before proceeding further it would be apt to notice definition of building as contained in Section 3(3) of the Municipal Act. Further plea was taken that the accommodation in question was set up with the consent of the Municipality and, therefore, Municipality cannot before proceeding further it would be apt to notice definition of building as contained in Section 3(3) of the Municipal Act. This reads as under:- Building means any shop, house, hut, out house shed, superstructure and stable whether used for the purpose of human habitation or otherwise and whether of masonry, bricks, wood, mud, thatch metal or any other material whatever, and includes a wall and a well, a boat and a house boat used for residential or commercial purposes.� Some judicial presendents be also noticed. Lord Atkinson in Victoria City V. Bishop of Vancouver Island, (1921) 2 AC 384 pointed out that the word "Building" in ordinary parlance "comprises not only the fabric of the building, but the land upon which it stands�. In the Concise Oxford Dictionary the word "building" is annotated at page 144 of the Third Edition as equivalent to "house, edifice." And "Edifice" is at page 363 annotated as equivalent to "building (especially a large one)". In Baldwins Edition 1928) of Bouviers Law Dictionary at page 141 "building" is annotated as meaning "an edifice erected by art and fixed upon or over the soil composed of stone, brick, marble or wood or other proper substance connected together and designed for use in the position in which it is so fixed. "This will be seen, is even comprehensive .annotation which does not insist of a roof for the structure or on brick or stone in its composition. Then in Whartons Law Lexicon at page 130 of the 13th Edition although it is first stated that the word has been "defined by Lord Esher in Moir V. Willians (1892) IQB 264 as an enclosure of brick or stone covered by a roof and said by Parke J, in "Rex V. Gregory" (1833) 5B and AD 555 not to include a wall", it is further pointed out that the "definition depends on circumstances and may include a reserviour, see Moran and Sons Ltd. Vs. Marsland, (109) 1 KB 744. The definition of Lord Esher M.R. is only a working definition and is not intended to exclude in all cases structures other than those made of brick or stone or covered by a roof. Marsland, (109) 1 KB 744. The definition of Lord Esher M.R. is only a working definition and is not intended to exclude in all cases structures other than those made of brick or stone or covered by a roof. The learned Lord himself observes that what is a building must always be a question of degree and circumstances and then proceeds to state that its "ordinary and usual meaning is a block of brick or stone work covered in by a roof. This definition of Lord Esher M.R. has come up for adverse criticism in England in Waites Executors V. Inland Revenue Commissioner, (1914) 3 KB 196. 4. The word building is a more generic word than, house. A building need have no roof while a house must have. A house is, according to Tomms Law Dictionary, a place of dwelling or habitation which means ordinarily that there must be a roof over it, which provides shelter. Of course neither building nor house need be of brick or stone. It seems that even, if "building" generally indicated a structure of brick or stone and with a roof as defined by Lord Esher M.R. it may be that definitions under special Acts contemplate a building without a roof and a building not made of brick or stone. Such was the case for instance so far as the need of a roof is concerned in the decision reported in Public Prosecutor V. Kalia Perumal Naidu, 8 Mad LT 431 where in it was pointed out that by section 3 of the Madras District Municipalities Act, Act IV of 1884 "building" was defined as including a wall. So it was held that the word "building" in clause (5) of section 180 of the Act included mere walls built for the purpose of erecting a house and the construction of such walls without the licence of the Municipality rendered persons constructing them liable to the penalty prescribed in section 263, even though the house, to support which the walls were designed had not been built. "Building" in the etymological sense means "any thing built," and there is no reason why if that is the intendment of the legislature in connection with a particular enactment, compound walls with the space inside may not be regarded as a building. 5. "Building" in the etymological sense means "any thing built," and there is no reason why if that is the intendment of the legislature in connection with a particular enactment, compound walls with the space inside may not be regarded as a building. 5. Then so far as the need of stone about the structure is concerned there is the case in "Nadhu Lal V. Municipal Committee Simla, AIR 1925 Lah 252 which is rather instructive. Therein facts were as follows: The petitioner constructed a wooden shed in the limits of the Simla Municipality. The shed was roofed by tin sheeting, was mounted on wheels, and was used for sleeping purposes at night. No notice of intention to erect it was given to the Municipal Committee. The Committee served the petitioner with notice under section 195 of the Punjab Municipal Act, demanding demolition of the shed. The petitioner thereupon moved the shed a distance of six feet, but did not demolish it. The petitioner was prosecuted under section 219 of the Act, and fined Rs. 10/-. It was held, "that a wooden shed mounted on wheels and intended to be a permanent fixture to the site is a "building" within the meaning of section 3(2) of the Punjab Municipal Act, and that the fact that its construction permits it to be moved from one part of that site to another does not render inapplicable to it the description any hut or shed." 6. Decision show that ordinary meaning of building is a walled super structure with a roof, but in some cases wooden super structure with a roof has also been held to be a building. A vacant site enclosed on three sides by walls of houses and on fourth by a Kacha wall which had fallen down cannot be held to be a building Jonda Ram V Shadhu, AIR 1953 Punjab 109. 7. Building has been the subject-matter of several decisions. In Mir V. Willian,s (1882) 1 QB 264 at page 270, Lord Esher M.R. observed as follows : If the words new building" are taken themselves without reference to the other part of the Act they would be taken to apply, to what is ordinarily called a building. 7. Building has been the subject-matter of several decisions. In Mir V. Willian,s (1882) 1 QB 264 at page 270, Lord Esher M.R. observed as follows : If the words new building" are taken themselves without reference to the other part of the Act they would be taken to apply, to what is ordinarily called a building. Such an ordinary building is an enclosure of brick or stone work covered in by a roof.� In Wals Executors V. Commissioner of Indian Revenue, (1914) 3 KB 196, an embankment was held not to be a building which was there in dispute. No doubt in this case Swinfen Eady L.J. did say that the construction placed upon the meaning of the word building in Moir V. Williams, (1892) 1 QB 264, was too narrow, but the learned Lord Justice was there referring to the observations of Collian M.R. in Long Eaton Recreation Grounds Co. V. Middland Ry. Co, (1962) 2 KB 574 at p. 581 and he observed, Cottages built of wood would certainly be included as buildings so also would the barn and stables of a farm though built only of wood and thatched with straw. But wherever the line defining, building is to drawn I am of the opinion that embankment must be outside it.� Building is a structure permanently fixed to the land and is immovable property. Muni Lal V. Kishore Chand, AIR 1927 Lah 133. Any super structure which is intended for the use and occupation for purposes of trade, manufacture or of commerce or some other structure constitutions a fabric or edifice will be deemed to be a building. Chandramani V Collector, AIR 1959 A.P. 869. An unroofled vehra with a small gate locked adjoining the occupied room is a building, AIR 1926 Lah. 28. Walls of a room erected on roof of a single storyed building upto lintel is a building. 1965 BLR 520. A wall is included in the term building because the definition does not say that the wall should necessarily be detached from the building or should stand by itself. A wall will therefore, fall within the definition of building whether it forms part of the house or not. Municipal committee V Sham Dei, AIR 1947 Lah 256. 1965 BLR 520. A wall is included in the term building because the definition does not say that the wall should necessarily be detached from the building or should stand by itself. A wall will therefore, fall within the definition of building whether it forms part of the house or not. Municipal committee V Sham Dei, AIR 1947 Lah 256. A wooden shed of the dimensions 10 x 18 and which is roofed by tin sheets would fall within the definition of building though it is mounted on wheels and it is permitted to move from one part of the site on which it stood to another. Such a place when used for sleeping purposes at night would fall within the term building. Nandu Mal V. Municipal Committee, AIR 1925 Lah 25. A cow shed is also a building, Marata Rao V. M.C. Nagpur AIR 1926 Nagpur 281. In Emperor V Hassan Bhai AIR 1924 Bombay 94 a wire fence 6 feet in height and consisting of wooden plank attached to posts embedded in earth on the boundary of the property was held not to be a building. A building includes a structure whether covered or not and made of any material whatsoever. Wali Mohammad V Emp. 111 I.C. 459 AIR 1929 Sind. 17(2). 8. A perusal of the above legal and factual position would make it apparent that the term building would include any structure which is used for habitation or otherwise. It would include an accommodation which is constructed of mud or any material whatever. If this be the position, then to say that the accommodation constructed by the petitioner where marriage functions are held and which are covered by bamboos and canvas would not fall within the definition of building cannot be accepted. With regard to other argument that the Municipality permitted the construction and this cannot be ordered to be demolished, all that is required to be said is that the Tribunal has already taken a compassionate view. The Municipal Committee was directed not to remove the structure before 27th of Jan 1999. Now more than 21/2 year has been passed. As the basic argument raised by the petitioner is that the accommodation in question does not fall within the definition of building and that has been repelled, there is no merit in the submission made by the petitioner. Now more than 21/2 year has been passed. As the basic argument raised by the petitioner is that the accommodation in question does not fall within the definition of building and that has been repelled, there is no merit in the submission made by the petitioner. In view of the above, this petition is found to be without merit and is dismissed. The respondents Municipality would take action in terms of the directions given by the Tribunal on 12.11.1998.