Hansraj Tirathram vs The Administrator, Municipality

K.V. Gopalakrishnan Nair, J.—This is a Plaintiff's second appeal from the decision of the Addl. District Judge at Jammu who on appeal

reversed the decree of the trial Court. The suit out of which this second appeal arises was instituted against the Administrator of the Municipal

Committee, Jammu, for a permanent injunction to restrain him from causing the removal or demolition of the verandah of the Plaintiff's shop

building.

The Plaintiff previously owned a shop building. He applied to the Municipal Committee for sanction to re-erect it. His application was duly

accompanied by a site plan of the proposed reconstruction. The Municipal Committee accorded sanction to reconstruct, subject to the condition

that no part of the reconstructed building was to be within a distance of 22 feet from the centre of the public road which lay in front. In pursuance

of this sanction, the Plaintiff reconstructed the shop building. It is common ground that the old shop building was reconstructed from its very

foundations. The basement of the building was substantially raised in height and other improvements of a radical nature were effected to the

structure. The verandah which constituted but a subsidiary part of the building was also substantially raised in height so as to bring it to the level of

the rest of the building. The wall as well as the pillars of the verandah were increased in height. Two new brick pillars were erected to prop the

roof of the verandah which was also constructed anew.

The building so reconstructed was found by the Administrator of the Municipal Committee to have contravened the condition subject to which

sanction to re-erect had been granted to the Plaintiff. The Defendant therefore served a notice on the Plaintiff calling upon him to remove the

offending portion of the shop building, namely, the verandah. This led the Plaintiff to file the suit for injunction against the Defendant. The trial Court

confined its attention to the verandah and came to the conclusion that what was done to it constituted only repair and not reconstruction or re-

erection, and therefore decreed the suit. On appeal by the Defendant the Addl. District Judge came to the conclusion that it was a case of

reconstruction and dismissed the suit. The Plaintiff has now come up to this Court in second appeal.

The main facts of the case are singularly simple and have been admitted by both sides. The dispute relates only to the legal inference to be

drawn from the admitted facts. According to the Plaintiff the verandah of the building was not re-erected or reconstructed but was only repaired.

He therefore argued that even if the verandah stood within a distance of 22 feet from the centre of the public road, he cannot be asked to remove

it, because the condition imposed by the Municipal Committee related to re-erection or reconstruction and not to repair.

On the other hand, the Defendant vigorously urged that it was a clear case of reconstruction and material alteration involving a blatant violation of

the condition subject to which sanction was accorded to the Plaintiff and that, therefore, the Plaintiff has no right to obtain an injunction, against the

Defendant who is entitled in law to enforce obedience to the condition subject to which the Plaintiff was permitted to re-erect the building.

This controversy between the parties calls for consideration of what constitutes 'repair' in the eye of law. The expression 'repair' signifies

restoration to the original condition. Anything which substantially improves or materially alters a thing from its original condition cannot be said to

be merely a repair of that thing: it will be bringing into existence an improved thing, an altered thing, a new thing for all intents and purposes. But it

cannot be forgotten that 'repair' involves an element of renewal; yet renewal of the whole or substantially the whole and not a lesser part of the

whole cannot be said to be 'repair'.

The full implication of what constitutes in law 'repair' has been brought out in a passage in the judgment of Buckley L.J. in Lurcott v. Wakely and

Wheeler (1911) 1 KB 905 at pages 923, 924. Says Buckley L.J.:

'Repair' and 'renew' are not words expressive of a clear contract. Repair always involves renewal; renewal of a part; of a subordinate part. A

skylight leaks, repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary

work is to replace the decayed timbers by sound wood: to substitute sound tiles or slates for those which are cracked, broken or missing; to make

good the flashings, and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and so far as

necessary, new bricks or stone. Repair is restoration by renewal or replacement of subsidiary parts of a whole. Renewal, as distinguished from

repair, is reconstruction of the entirety, meaning by the entirety not necessarily the whole but substantially the whole subject-matter under

discussion. I agree that if repair of the whole subject-matter has become impossible a covenant to repair does not carry an obligation to renew or

replace. That has been affirmed by Lister v. Lane (1893) 2 QB 212 and Wright v. Lawson. (1903) 19 TLR 203 on appeal P. 510. But if that

which I have said is accurate, it follows that the question of repair is in every case one of degree, and the test is whether the act to be done is one

which in substance is the renewal or replacement of defective parts, or the renewal or replacement of substantially the whole.

This passage has been regarded in later cases as the leading exposition on the subject of the difference between 'repair' and 'renew'. See, for

instance, (1933) 2 AWR 1152 (Privy Council) . In this Privy Council case Lord Macmillan referred with approval to the decision in Highland Rly.

Co. v. Balderston (1889) 2 Tax Cas 485 in which a distinction between what amounts to a repair on the one hand and an improvement of corpus

on the other was pointed out. Although a replacement of worn out iron rails by new iron rails could be a 'repair', substitution of steel rails for iron

rails was held to be a material alteration and an improvement in the corpus and therefore not a repair.

In the case on hand, it is not disputed that the entire shop building except the verandah in question was materially altered and improved in

structure and quality. The expression 're-erection' has been defined in the Municipal Act as including material alteration. The verandah is only a

subsidiary part of the building. When the rest of the building has been re-erected in the sense of its having been substantially improved and

materially altered from its original condition, it cannot be said that the verandah alone was merely repaired. We have to look at the building as a

whole as a single entity and not cut it up into minor parts and regard each little subsidiary part an integral whole by itself. If it were otherwise, there

would hardly be a case of reconstructing or re-erecting a building within the meaning of the provisions of the Municipal Act. Some material of the

old building might be used in the construction, or a little patch or part of the old building might be left intact and made to fit into the vast new

construction. In such a case one cannot say that the small patch so retained or the stray places where the old materials were used must be treated

as distinct and separate from the building as a whole; the entire effort was one of reconstruction and the object obviously was to bring into being

the reconstructed building.

The verandah in the instant case which is but a small subsidiary part of the entire building cannot be treated in isolation from the rest of the

building for the purpose of adjudging whether or not there has been a reconstruction of the building. The verandah has no independent existence

for this purpose and inevitably goes with the building of which it is a minor part. Therefore even if the verandah in question had been left without

any alteration whatsoever, there would still be no justification for saying that the verandah is a separate construction and has to be regarded

independently of the building as a whole. Even this aspect does not require to be expatiated upon at greater length in the present case because the

findings of fact of the Courts below show that the verandah has been materially altered and enlarged. Its height has been raised by at least 4 feet;

its wall has been correspondingly heightened; two new brick pillars have been built for the verandah and a new roof has been made to rest on

them. All this amounts to material alteration and improvement as part of the reconstruction of the house. On these facts I find it extremely difficult to

hold that there has been only repairs to the verandah, even if the verandah is treated as distinct and separate from the building.

It is not disputed that if this is held to be a case of 're-erection' within the meaning of Section 221 of the Municipal Act, the Plaintiff has to be

non-suited. I have already said enough for holding that the Plaintiff has 're-erected' the entire building including the verandah. His suit has therefore

to fail. This second appeal is dismissed with costs.