Gopal Rao Ekbote, J.:— This is an appeal against the judgment of our learned brother Vaidya, J., given in S.A No. 734 of 1968 on 15th April, 1970 whereby the learned Judge dismissed the appeal.
2. The facts in outline are that the respondent herein instituted a suit for declaration that she was entitled to renovate the compound wall on the old foundations without obtaining any permission from the Visakapatnam Municipal Council. What happened was that the plaintiff gifted 12 feet of land for widening a road and wanted to construct certain sheds on the roadside. She applied for the necessary permission for the construction of the shed including compound wall on the eastern side of the site. The Municipality returned the plan for resubmission directing the shifting of the proposed shop rooms to 15 feet inside the acquisition line. The plaintiff instead of complying with the direction of the Municipality and resubmitting the plan constructed a compound wall which is admittedly of less than 8 feet in height.
3. The Municipal Council gave notice under Exhibit A-1, dated 31st October, 1964 asking the plaintiff to show cause as to why the compound wall constructed without obtaining the permission should not be demolished. The plaintiff instituted the suit and asked for an injunction against the Muncipality prohibiting it from demolishing the compound wall already constructed.
4. The defence set up by the Municipality was that even for the construction of such a compound wall, permission under section 197 of the Madras District Municipalities Act (hereinafter referred to as the Act) was necessary. Since no such permission was obtained, the construction of the compound wall was unauthorised and should be demolished under section 216 of the Act.
5. The trial Court negatived the defence by holding that for purposes of section 216 of the Act, the term “building” has to be understood in the light of what is defined in section 3(3) of the Act. The trial Court, therefore, decreed the plaintiffs suit.
6. On an appeal, the Additional District Judge, confirmed the view taken by the trial Court.
7. On second appeal to this Court, our learned brother also agreed with the same conclusion.
8. The principal contention of the learned Advocate appearing for the Municipal Council is that for purposes of section 216 of the Act the term “building” appearing therein has to be understood as is defined in the Explanation to section 197(1) of the Act and not as defined in section 3(3) of the Act.
9. Section 3(3) of the Act states:
“In this Act unless there is anything repugnant in the subject or context, “Building” includes a house, outhouse, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding eight feet in height) and any other such structure, whether of masonary, bricks, wood, mud, metal and any other material whatsoever.”
10. Section 197 of the Act then enjoins:
“(1) If any person intends to construct or reconstruct a building other than a hut, he shall send to the executive authority:—
(a) an application in writing for the approval of the site, together with a site plan of the land, and
(b) an application in writing for permission to execute the work together with a ground plan, elevations and sections of the building, and a specification of the work.”
11. To this sub-section (1) an Explanation was added by section 101 of the Act of 1930.
“‘Building’ in this section shall include a wall or fence of whatever height bounding or abutting on any public street.”
12. Then comes section 216. It is under the sub-heading “power of the executive authority”. The section relates to “demolition or alteration of building work unlawfully commenced, carried on or completed.” Section 216 of the Act, in so far as it is relevant, reads:—
“216. (1) If the executive authority is satisfied—(1) that the construction or reconstruction of any building or well—
(a) has been commenced without obtaining the permision of the executive authority or where an appeal or reference has been made to the council, in contravention of any order passed by the council, or
(b) is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based.”
13. We need not read the other portion of the section because nothing turns upon that in this case.
14. What appears from a reading of these three provisions is that unless there is anything repugnant in the subject or context the term “building” appearing in the Act would include a wall other than a boundary wall not exceeding 8 feet in height.
15. Section 197 of the Act, however, modifies the definition of this term by the Explanation to sub-section (1). That modification however is made applicable only to section 197 as is clear from the plain language of the Explanation itself. For purposes of section 197, therefore, the term “building” shall include a wall of whatever height bounding or abutting on any public street.
16. We have thus two definitions of “building” one given in section 3(3) which definition would ordinarily apply to all the provisions of the Act, unless there is any thing repugnant in the subject or context and then we have the definition of the same term as per the Explanation attached to sub-section (1) of section 197 of the Act. That definition is somewhat different, rather repugnant to the definition of building appearing in section 3(3). Whereas section 3(3) excludes a boundary wall not exceeding 8 feet in height, the Explanation for purposes of that section includes wall of whatever height, provided such a wall bounds or abuts any public street.
17. What follows is that the definition of the term “building” appearing in section 3(3), according to the governing “Words of section 3 would cease to apply to the extent it is repugnant with the Explanation given in section 197(1) of the Act. In other words, the term “building” as defined in section 3(3) would apply to section 197(1) with the alteration made by the Explanation in that definition.
18. One thing however is clear that the Explanation confines the operation of modified definition to that section only. According to that section, therefore, even a construction or reconstruction of a compound wall which bounds or abuts, any public street of whatever height would require permission of the competent authority obtained in accordance with the procedure laid down in that section.
19. Section 216 of the Act, however, uses the word “building” without suggesting as to what definition would apply to that term for purposes of section 216. While it is argued by the learned Advocate appearing for the Municipality that the modified definition according to the Explanation to section 197(1) would apply to section 216 of the Act, it is argued by the learned Advocate appearing for the respondent that the word “building” used in section 216 has to be understood in accordance with the definition of the term given in section 3(3) of the Act.
20. We find it extremely difficult to accept the contention of the Municipality. Firstly because section 216 merely uses the word “building” without expressly or by necessary implication stating that the term has to be understood in the special meaning attributed to that term in section 197(1). Secondly the definition given to that term in the Explanation attached to section 197(1) is confined to that section only. It does not expressly or by a necessary implication govern the term “building” used in section 216(1). And thirdly, section 3(3) which is a sort of dictionary giving meaning of various words used in that Act for purposes of understanding the provisions of the Act, defines the term “building”. It is therefore, in that meaning that one has to understand the word “building” used in section 216(1) of the Act. The Legislature clearly and expressly wanted the term “building” to be understood in the Act in accordance with the definition given of that word in section 3(3) of the Act, unless of course there is anything repugnant in the subject or context.
21. Now in order to find out whether the term “building” used in section 216(1) is repugnant either in the subject or in the context to the definition of that term given in section 3(3) of the Act, one has carefully to read section 216. We could not on such reading find in section 216 any repugnancy either in subject or context. The use of the simple word “building” necessarily means that it has to be understood in accordance with section 3(3). No question of any repugnancy therefore, can arise.
22. What follows therefore is that not only because of the express language used in section 3(3), the term “building” used in section 216 has to be understood, but the term “building” as explained in section 197(1) since its operation is confined to that section, cannot by judicial interpretation, be extended to section 216(1) of the Act.
23. It must be borne in mind that section 216 is a penal provision. Any contravention postulated by that section entails demolition of unauthorised construction or reconstruction of a building. It is now well settled that the penal provisions in general have to be construed strictly. It is not the function of the Court to bring in a case in the penal provision Which obviously was not brought in by the Legislature. It may be that while amending section 197(1) by inserting the Explanation the Legislature either has omitted to make suitable alterations in section 216(1) or it may also be that the intention of the Legislature was not to make unauthorised construction of a compound wall abutting or bounding the public street of whatever height as penal so as to attract the provisions of section 216. If it is a case of omission, we will not readily supply such a omission particularly a penal provision and if it was the intention of the Legislature not to demolish even if such compound walls are unauthorisedly constructed, then it is obvious that the Court would not construe section 216 to bring the case of such wall within the put view of section 216, because it will be contrary to the intention of the Legislature. In either case, there is no scope of applying the Explanation to section 197(1) to the provisions of section 216. The term “building” used in that provision has to be necessarily understood in the light of the definition given in section 3(3) alone.
24. So read, it was common ground that the construction of the compound wall by the plaintiff cannot be characterised as an unauthorised construction falling within the purview of section 216(1) of the Act. The Municipal Council, therefore, had no jurisdiction whatsoever to issue the notice directing the plaintiff to show cause as to why the compound wall unauthorisedly constructed should be demolished. The Municipality cannot demolish such a compound wall constructed, although no permission under section 197 of the Act was obtained.
25. We are aware of the result of this interpretation. No doubt section 197(1) would insist upon obtaining permission for construction of a wall of whatever height if it abuts or bounds a public street. But if a wall is constructed without obtaining any such permission the Municipality will be incompetent to demolish such construction carried on in the teeth of section 197(1). However regrettable the result may be, it could be remedied only by the Legislature. This Court is not competent either to supply the omission or lay down a different policy than what appears to have been laid down by the Legislature by merely inserting the Explanation in section 197(1) without amending in whatever manner section 216(1) of the Act. For the aforesaid reasons, the appeal must fail and we accordingly dismiss it with costs.
26. G.S.M
27. Letters Patent Appeal dismissed.