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PETITIONER: K. RAMADAS SHENOY

       Vs.

RESPONDENT: THE CHIEF OFFICERS, TOWN MUNICIPAL COUNCIL, UDIPI AND ORS.

DATE OF JUDGMENT09/08/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR 2177            1975 SCR  (1) 780  1974 SCC  (2) 506  CITATOR INFO :  R          1982 SC 149  (15)  E          1984 SC 516  (25)

ACT: Madras   Town   Planning  Act,  1920--Cinema  built   in   a residential  area--Excess  of statutory Power  if  could  be validated by acquiescence or by operation of estoppel.

HEADNOTE: The respondent was granted a licence for the construction of Kalyan  Mantapcum-Lecture  Hall  within the  limits  of  the municipality, subject to the provisions of the Madras Public Health Act, 1939 and the Scheme framed under the Madras Town Planning   Act,  1920.   The  Municipal  Committee,   by   a resolution,  approved  the  plan for  conversion  of  Kalyan Mantap-cum-Lecture  Hall  into  a  cinema  theatre.   In   a petition  under  article 22 6 of the Constitution  the  High Court held that the cinema theatre could not be  constructed in  a  place  other than the  specified  localities  without proper sanction, but since the third respondent had spent  a large  sum  of  money,  it  did  not  quash  the   impeached resolution. on  appeal  to this Court the appellant contended  that  the Town  Planning  Scheme forbade any cinema  building  at  the place asked for and, therefore, the resolution was invalid. A owing the appeal, HELD  : (1) The resolution of the municipality had no  legal foundation.   The illegal construction of a cinema  building materially affects the right to or enjoyment of the property by persons residing in the residential area.  The  municipal authorities  owe a duty and obligation under the statute  to see that the residential area is not spoiled by unauthorised construction.   A  scheme  in  the  residential  area  means planned  orderliness in accordance with the requirements  of the residents. [685H; 686E] (2)  The High Court was not correct in holding  that  though the  impeached  resolution  was in  violation  of  the  Town Planning  Scheme, yet it could not be disturbed because  the third respondent was likely to have spent money.  The excess of statutory power could not be validated by acquiescence in or  by  the operation of estoppel.  The  Court  declines  to

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interfere for the assistance of persons who seek its aid  to relieve them against express statutory provisions. [686D] Maddison V. Alderson [1883] 8 App.  Cases 467, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal Nos.  2232  of 1973. Appeal by Special Leave from the Judgment & Order dated  the 22nd  September, 1972 of the Mysore High Court in W. P.  No. 834 of 1972. S.  V.  Gupte with K. N. Bhatt and B. Krishna Rao,  for  the appellant. D.  V. Patel, R. B. Datar and G. N. Rao, for the  respondent No. 3. The Judgment of the Court was delivered by RAY,  C.  J.  This is an appeal by special  leave  from  the judgment  dated  22  September, 1972 of the  High  Court  of Mysore. Vidya  Varidhi Thirtha Swamiar of Shri Kanniyar Muth,  Udipi is the third respondent.  In 1968 he made an application  to the  Municipal  Council, Udipi for construction  of  Kalyana Mantap-cum-Lecture 681 Hall.   Licence  was  granted  on  8  April,  1969  for  the construction  of Kalyana Mantap-cum-Lecture Hall.   The  two main conditions of the above licence were that the  building to be put up was to be a Kalyan Mantap and the  construction was  subject to the provisions of Madras Public Health  Act, 1939  and the Scheme framed under the Madras  Town  Planning Act, 1920. On  20  March, 1970 there was an  application  under  Madras Place of Public Resorts Act, 1888 for using the building  as a  public resort.  The third respondent made an  application on  23 March, 1970 under the Madras Place of Public  Resorts Act  1888, to the Chief Officer, Town Municipal Council  for licence   to   use   the   building   for   exhibition    of cinematographic  films for public entertainment.  The  third respondent  also  applied under section 256  of  the  Mysore Municipalities Act to instal generators with oil engines. On  8 April, 1970 the third respondent applied to the  Chief Officer,  Town  Municipal Council to extend  the  period  of licence  dated 8 April, 1969 and for permission  to  convert the building into one for exhibition of films. On  18  April,  1970  the  first  respondent  rejected   the application on the ground that a cinema theatre could not be permitted  under the provisions of the Town Planning  Scheme in force.  On 29 April, 1970 the application for  conversion of Kalyana Mantap-cum-Lecture Hall into a cinema theatre was rejected by the first respondent. On 4 May, 1970 the third respondent filed an appeal  against the  order  dated 18 April, 1970 under the Madras  Place  of Public Resorts Act.  It should be noted here that the  third respondent did not prefer an appeal against the order of the first   respondent  dated  29  April,  1970  rejecting   the conversion of Kalyana-Mantap into a cinema theatre. Thereafter  the Municipal Council passed the four  impeached resolutions which are subject-matter of this appeal. The  first impeached resolution is dated 11 June, 1970.   By that resolution the Municipal Council considered the  appeal filed  by  the.  respondent Vidya  Varidhi  Thirtha  Swamiar against  the  proceedings  of  the  Chief  Officer  of   the Municipal Council dated 18 April, 1970 refusing licence  for exhibiting  cinematograph films in the building situated  in

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Moodanidambur  village.   The Municipal Council  decided  to grant the licence applied for the said respondent. The second impeached resolution is dated 18 June, 1970.   By that resolution the licence granted to Vidya Varidhi Thirtha Swamiar  for exhibiting cinematograph films in the  building was  made  subject to certain  conditions.   The  microphone should  be  played only inside  the  theatre.   Arrangements should  be  made to keep the level of the land area  of  the theatre  above  the  road  level so  that  water  might  not stagnate there.  The engine room where the oil engine  would be  kept  should  be  made in such a  way  that  sound  and, blasting  of  the engine would not disturb  the  neighbours. The  Chief  Officer of the Municipality was given  power  to impose other conditions from time to time. 682 The  third impeached resolution is dated 19 June, 1970.   By that  resolution the Municipality under section 256  of  the Mysore  Municipalities  Act  granted  permission  to   Vidya Varidhi  Thirtha  Swamiar for the installation  of  electric motors  and  an  oil engine in the building  for  running  a cinema theatre. The fourth impeached resolution is dated 19 June, 1970.   By that  resolution  the Municipality  considered  the  revised plans  filed  by  Vidya  Varidhi  Thirtha  Swamiar  for  the conversion of Kalyana Mantapa-cum Lecture Hall into a cinema theatre. On  2 April, 1972 the appellant filed Writ Petition No.  934 of 1972 and impeached the four resolutions.  The High  Court quashed  the  three  resolutions and said  that  the  fourth impeached resolution which approved the plan for  conversion of Kalyan Mantap-cum-Lecture Hall into a cinema theatre  was to   remain  undisturbed.   This  appeal  is  against   that judgment. It may be stated here that the appellant filed a suit on  31 October, 1970 in the Court of the Munsiff of Udipi for grant of  injunction against the third respondent from  installing cinematographic apparatus and using the building as a cinema house. On 7 December, 1971 Ananthakrishna Rao and two others  filed Writ  Petition  No. 4904 of 1970 before the  High  Court  of Mysore against the respondents.  The High Court granted stay of operation of the four impeached resolutions. The  appellant  obtained  special  leave  to  appeal  on  13 October, 1973.  An interim stay was granted on that day.  On 30 January, 1973 the interim stay was vacated.  On 14  March 1973  the Deputy Commissioner granted licence to  the  third respondent for exhibition of films under the Mysore  Cinemas Regulations Act read with Mysore Cinemas Regulations  Rules, 1971. The appellant on 15 March, 1973 filed Writ Petition No.  755 of  1973 before the High Court challenging the order of  the Deputy Commissioner.  The petition is pending  determination in the High Court. The  High Court in quashing the three impeached  resolutions said  that  the  Municipal Council had no  power  under  the Madras  Place of Public Resorts Act, 1888 because  that  Act ceased to be in force.  The resolutions dated 11 June,  1970 and  18 June, 1970 were quashed on that ground.   The  third impeached  resolution  dated  19 June,  1970  which  granted permission  to  the  third respondent  for  installation  of electric  motors  and oil engine was quashed on  the  ground that  no  such  licence was contemplated  under  the  Mysore Municipalities Act.  The High Court examined section 256  of the  Mysore Municipalities Act and held that  exhibition  of cinema films did not come within the ambit of section 256 of

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the  Act.   The High Court held that  the  respondents  were unable to show any provision under the Mysore Municipalities Act  whereby  a  licence  could  be  issued  for  installing electric motors or an oil engine. 683 As to the fourth impeached resolution which is now the  bone of  contention  between  the parties  in  this  appeal,  the following facts are found by the High Court.  The Government of Madras under the Madras Planning Act by an order dated 24 May, 1945 approved the Central Ward Town Planning Scheme  in Udipi.   Clause  15 of the Scheme provided  that  shops  and business premises might be permitted only in places shown as reserved  for  the purpose.  "Business premises"  under  the scheme  means  a building designed for use as an  office  or theatre  or for any business purpose but does not include  a petrol filling station, special industrial building, factory or  workshop.  The respondents contended in the  High  Court that  the  scheme  was intended to be in force  only  for  a period of 20 years and that it either lapsed or ceased to be in  force after the expiration of 20 years.  The High  Court rejected  the  contention that the scheme  lapsed  after  20 years  from 20 May, 1945.  The High Court  further  accepted the contention of the appellant that under clause 15 of  the Scheme  a cinema theatre which is regarded in the Scheme  as business  premises  cannot be constructed in a  place  other than  Badagapet  Road, Hanuman Office Road and  Post  Office Road  without the sanction of the responsible authority  and without  the  previous  approval of  the  Director  of  Town Planning. The High Court said that between the grant of permission  to convert the building into a cinema theatre and the issue  of interim cider in Writ Petition No. 4904 of 1972 there was an interval of more than five months.  The High Court took into consideration  the allegations of the third respondent  that he spent nearly the sum of Rs. 5 lakhs.  Taking into account the  circumstances of the case the High Court did not  quash the  fourth resolution dated 19 June, 1970,  permitting  the third  respondent  to  convert the building  into  a  cinema theatre.  The High Court however made it clear that  nothing said by the High Court in that order should come in the  way of  the  Licensing  Authority  under  the  Cinemas  Act   in considering  the  merits  of the application  of  the  third respondent  for a licence and the objections thereto by  the appellant. Apart  from clause 15 of the Town Planning Scheme which  has already been noticed, reference may be made to clause 14  of the Scheme.  Clause 14 provides that every part of the  area shall  be utilised for residential purposes  only,  provided Hotels,   Clubs   and  buildings  for  public   worship   or instruction  or places of social intercourse. or  recreation or  hospitals or dispensaries or for any other purposes  may be permitted by the responsible authority with the  previous approval of the Director. Counsel for the appellant rightly put in the forefront  that there  was  no  appeal preferred  by  the  third  respondent against  the order of the Municipality dated 29 April,  1970 when the Municipality refused permission for construction of a  cinema  theatre  building on  the  premises  forming  the subject  of appeal.  The appeal was only against  the  order dated   18  April,  1970  whereby  licence  for   exhibiting cinematographic films was refused under the Madras Place  of Public  Resorts  Act,  1888 read with Rule 15  of  the  Town Planning  Scheme.  Pursuant to this appeal the  Municipality on 11 June, 1970 granted licence to 684

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exhibit  films.  The High Court rightly quashed  that  order for the reasons indicated in the judgment. Counsel  for the appellant rightly submitted that  the  Town Planning  Scheme  forbade any cinema building at  the  place where the third respondent has asked for the cinema building and  therefore  the resolution is invalid.  The  area  where this  cinema  building is situate is a residential  one  and therefore  in the absence of the scheme sanctioning  such  a cinema building in that area, the authority of the Municipal Council to sanction it is rightly challenged. Counsel for the respondents contended that the appellant had pursued  alternative  remedies.  One was the suit  filed  in 1970 for injunction against the third respondent to restrain installation  of  cinematographic apparatus  and  using  the building as a cinema house.  The other is Writ Petition  No. 755 of 1973 challenging the order of the Deputy Commissioner dated  14 March, 1973 permitting exhibition of  films.   The suit  does not seek any relief in respect of  the  impeached resolution  which forms the subject-matter of  this  appeal. The writ petition also does not relate to any relief in that behalf.  The contention of the respondents fails. Another  contention on behalf of the respondent is  that  if there is any breach of a statutory duty, the appellant  will not be entitled to any relief without an injury.  The breach of a statutory duty created for the benefit of an individual or  a class is a tortious act.  Anyone who  suffers  special damage  therefrom is entitled to recover  damages.   Counsel for the third respondent rieled on Cutler v. Wandsworth Sta- dium  [1949]  A. C. 398.  In that case a  bookmaker  alleged that  he suffered damage in that the occupier had failed  to make available for bookmakers space on the track where  they could  conveniently carry on bookmaking in  connection  with dog  races run on the track under the Betting and  Lotteries Act,  1934.  It was held that the object of the Act  was  to provide   the  public  and  not  the  bookmakers  with   its requirements for the purposes of betting.  It was no  object of the Act to confer on individual bookmakers a privilege in furtherance  of  their business which they  never  possessed before.   Consequently  no  action  was  maintainable.   The question  whether  an individual who is one of a  class  for whose  benefit such an obligation is imposed can  or  cannot enforce performance by an action must depend on the  purview of the legislature in the particular statute.  Injury may be caused  either  by the fulfilment of the duty  cast  by  the statute  or by failure to carry it out or by  negligence  in its performance. In  order to succeed in an action for damages for breach  of statutory  duty  the plaintiff must establish  a  breach  of statutory  obligation which, on the proper  construction  of the  statute was intended to be a ground of civil  liability to a class of persons of whom he is one.  He must  establish an injury or damage of a kind against which the statute  was designed  to give protection.  The present case is  not  for pecuniary damages for breach of statutory duties. In  the  present  case  the  appellant  contends  that   the Municipality   has  illegally.  sanctioned  the   plan   for conversion into a cinema.  The 685 appellant  as  the  resident in the area has  the  right  to compel  the  Municipality  to perform duty  imposed  by  the statute.   The  appellant  has a right  to  insist  on  such performance of duty because he has an individual interest in the  performance  of the duty imposed by the  Act  that  the scheme  is not violated.  The appellant resides in the  area where  the  plan for conversion of the  Kalyana  Mantap-cum-

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Lecture  Hall  into a cinema has been granted.   This  is  a residential area.  The Municipality cannot act in  disregard of  the  scheme.  The Municipality is not the  authority  to vary  or modify the Scheme.  The Municipality on  29  April, 1970  refused to sanction a plan for construction of  cinema theatre building.  The construction of the building had been earlier  permitted as a Kalyana Mantap-cum-Lecture Hall  and not  for cinema theatre.  That was the reason given  by  the Municipality for refusal to sanction a plan for construction of the cinema theatre building.  The resolution of 11  June, 1970  on  appeal  against the order  dated  18  April,  1970 granting licence for cinema under the Madras Place of Public Resorts Act has been quashed by the High Court.   Therefore, there is no licence to exhibit films.  The other resolutions quashed by the High Court indicate that the installation  of the  electric motor and oil engine is not  sanctioned.   The Municipality has no power to convert the lecture hall into a cinema theatre.  No provision in the statute has been  shown to support such an exercise of power. Counsel  for the respondents contended that a mere grant  of licence  to  construct  a cinema causes no  injury  and  the appellant  would have no cause of action until the  building would  be  actually  used as a cinema.   The  appellant  can challenge  at the threshold when the Scheme which is  framed for the benefit of the residents in that area is violated by the  Municipality.   The Municipality acts  for  the  public benefit  in  enforcing the Scheme.  Where  the  Municipality acts in excess of the powers conferred by the Act or  abuses those  powers then in those cases it is not  exercising  its jurisdiction  irregularly  or  wrongly but  it  is  usurping powers which it does not possess.  The right to build on his own  land  is a right incidental to the  ownership  of  that land.   Within the Municipality the exercise of  that  right has been regulated in the interest of the community residing within  the  limits of the Municipal  Committee.   If  under pretence  of  any authority which the law does give  to  the Municipality  it goes beyond the line of its authority,  and infringes or violates the rights of others, it becomes  like all  other individuals amenable to the jurisdiction  of  the Courts.   If  sanction is given to build by  contravening  a bye-law  the jurisdiction of the Courts will be  invoked  on the  ground  that the approval by an authority  of  building plans  which contravene the bye-laws made by that  authority is illegal and inoperative [See Yabbicom V. King [1899] 1 Q. B. 444]. An  illegal  construction of a  cinema  building  materially affects the right to or enjoyment of the property by persons residing in the residential area.  The Municipal Authorities owe a duty and obligation under the statute to see that  the residential area is not spoilt by unauthorised construction. The  scheme  is  for the benefit of  the  residents  of  the locality.  The Municipality acts in aid of the scheme.   The rights 686 of  the  residents  in the area are invaded  by  an  illegal construction of a cinema building.  It has to be  remembered that   a  scheme  in  a  residential  area   means   planned orderliness  in  accordance  with the  requirements  of  the residents.  If the scheme is nullified by arbitrary acts  in excess and derogation of the powers of the Municipality  the courts  will quash orders passed by Municipalities  in  such cases. The  Court  enforces the performance of  statutory  duty  by public bodies as obligation to rate payers who have a  legal right  to  demand compliance by a local authority  with  its

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duty to observe statutory rights alone.  The scheme here  is for the benefit of the public.  There is special interest in the performance of the duty.  All the residents in the  area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction. The  High Court was not correct in holding that  though  the impeached  resolution  sanctioning plan  for  conversion  of building into a cinema was in violation of the Town Planning Scheme  yet  it  could not be disturbed  because  the  third respondent  is  likely  to have spent  money  An  excess  of statutory power cannot be validated by acquiescence in or by the  operation  of  an  estoppel.   The  Court  declines  to interfere for the assistance of persons who seek its aid  to relieve  them  against express  statutory  provision.   Lord Selborne  in Maddison v. Alderson [1883] 8 App.   Cases  467 said  that courts of equity would not permit the statute  to be made an instrument of fraud.  The impeached resolution of the  Municipality has no legal foundation.  The  High  Court was wrong in not quashing the resolution on the surmise that money might have been spent.  Illegality is incurable. For  the  foregoing reasons, the appeal  is  accepted.   The order  of the High Court leaving resolution dated  19  June, 1970  being Annexure ’D’ to the Petition undisturbed is  set aside.   The resolution dated 19 June, 1970  being  Annexure ’D’  to the Petition before the High Court is quashed.   The parties will pay and bear their own costs. P.B.R.                            Appeal allowed. 687