Gopala Nayagar and Sons vs The Corporation of Madras

Anantanarayanan, J.—This revision involves a short point, though one possessing a certain degree of interest, regarding the interpretation of

Section 236 of the Madras City Municipal Act (IV of 1919), in conjunction with Section 362 of the same Act, and Section 3 of the Act, which

deals with definitions. The facts are not in controversy, and are briefly as follows:

The revision Petitioner certainly erected, or commenced the erection of, a compound wall or boundary wall, which was less than eight feet in

height, according to an admission in the cross-examination of a material witness (P.W. 1). Now, such a wall, regarded as a separate work or

construction, will not be a building within the definition of Section 3 (4) (a) of the Act, for that definition explicitly excepts from the term wall a

boundary wall-not exceeding eight feet in height. Section 236 of the Act runs as follows:

The construction or re-construction of a building shall not be begun unless and until the Commissioner has granted permission for the execution of

the work.

Section 362 is the punitive section, under which unauthorized constructions are liable to be visited with the penalty provided under the section.

Now, as I stated earlier, the revision Petitioner does not dispute that he commenced the construction of this wall, without authority, but his claim is

that it is less than eight feet in height, that it is a boundary wall, that, therefore, it is outside the definition of Section 3 (4) (a) hence, the construction

of it without the permission of the Commissioner, is not an offence u/s 236.

Normally, this objection would have to prevail, for the word, building as occurring in Section 236 would be ordinarily referable to the definition in

Section 3(4)(a). But Section 234(1)(b) of the Act, which deals with applications in writing for permission to execute a work together with a ground

plan, etc., gives a special explanation in the following terms:

''Building'' in this sub-section shall include a wall or fence of whatever height bounding or abutting on any public street.

Learned Counsel for the revision Petitioner (Sri Damodara Rao) argues, and I think with plausibility and force, that the special definition or

explanation for building provided in Section 234(1)(b), must be limited to that sub-section, and cannot be extended to cover the use of the word

building in Section 236. That is because the explanation is specifically to the effect that the definition embodied in it relates to the word building, as

occurring in that sub-section, Section 234(1)(b). Where the word building occurs anywhere else, clearly we have to refer only to the general

definition in Section 3, Sub-section 4(a). I was at first rather exercised by this apparent inconsistency, or contradiction;

It appeared to be a matter of a lapse on the part of the draftsman. But, I think that this could be explained or reconciled, on a different line of

reasoning. Section 234(1)(b) may conceivably relate to the situation in which a person is building a house together with the compound wall, at the

same time; in that contingency, he will necessarily have to apply for permission for the construction of the house. When he so applies, he must

include the particulars of the bounding wall, and obtain permission therefor, though the wall may be less than eight feet in height. But, where he is

separately constructing a boundary wall alone, the governing definition will be that in Section 3(4)(a), and it is only where the boundary wall is over

eight feet in height that the construction of it will be unauthorized, and an offence u/s 236, read with Section 362 of the City Municipal Corporation

Act.

Consequently, I allow the revision petition and direct the acquittal of the revision Petitioner. The fine, if paid, will be refunded.