K. Ramadas Shenoy Vs. The Chief
Officers, Town Municipal Council, Udipi & Ors  INSC 140 (9 August
RAY, A.N. (CJ) RAY, A.N. (CJ) MATHEW, KUTTYIL
CITATION: 1974 AIR 2177 1975 SCR (1) 780 1974
SCC (2) 506
CITATOR INFO :
R 1982 SC 149 (15) E 1984 SC 516 (25)
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.
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 interfere for the assistance of persons who seek its aid to relieve
them against express statutory provisions. [686D] Maddison V. Alderson  8
App. Cases 467, referred to.
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
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
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
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 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
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
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 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
 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
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- 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  1 Q.
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
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 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  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.