# K. RAMADAS SHENOY v. THE CHIEF OFFICERS, TOWN MUNICIPAL COUNCIL, UDIPI AND ORS

- **Citation:** [1975] 1 S.C.R. 680
- **Court:** Supreme Court of India
- **Decided:** 1974-08-09
- **Case number:** CIVIL APPELLATE JURISDIOTION : Civil Appeal Nos. 2232 of 1973
- **Bench:** A. N. Ray C.J, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-ramadas-shenoy-v-the-chief-officers-town-municipal-council-udipi-and-ors-6223
- **Pages:** 7

## Headnote

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 esroppel.
The respondent was granted a licence for the construction of Kalyan Mantap ..
cum-Lecture HalI within the limits of the rnunicipaHty, 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
\Vithout 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 : (I) Tho resolution of the municipality had no legal foundation. The
illegal construction of a cinema building materially affects the right t_o or enjoy ..
ment 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 H.igh .court was not correct in holding that though the impeached re·
solution was in violation of the Town Planrung Scheme, yet it could not be disturb ..
. ed 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. [6860]
Maddison' V. Alderson [1883] 8 App. Cases 467, referred to.
CIVIL APPELLATE JURISDIOTION : 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,

## Text

680
K. RAMADAS SHENOY
v.
THE CHIEF OFFICERS, TOWN MUNICIPAL COUNCIL,
UDIPI AND ORS.
August 9, 1974
[A. N. RAY C.J. AND K. K. MATHEW, J.j
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 esroppel.
The respondent was granted a licence for the construction of Kalyan Mantap ..
cum-Lecture HalI within the limits of the rnunicipaHty, 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
\Vithout 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 : (I) Tho resolution of the municipality had no legal foundation. The
illegal construction of a cinema building materially affects the right t_o or enjoy ..
ment 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 H.igh .court was not correct in holding that though the impeached re·
solution was in violation of the Town Planrung Scheme, yet it could not be disturb ..
. ed 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. [6860]
Maddison' V. Alderson [1883] 8 App. Cases 467, referred to.
CIVIL APPELLATE JURISDIOTION : 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 Kaniyoor Muth, Udipi
is the third resp<mdent. In 1968 he made an application to the Municipal Council, Udipi for construction of Kalyana Mantap-cum-Lecture
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K. R, SHENOY v. MUN!C. COUNCIL (Ray, C.J,)
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 oflicence 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 re.
solutions 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 Vari.dhi 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
SUPREME COURT REPORTS
(1915) 1 S.C.R.
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-cumLecture 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 plaP for conversion of Kalyan Mantap-cum-Lccture
Hall into a cinema theatre was to remain undisturbed. This appeal
is against that judgment.
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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.
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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.
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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 nnder
the Mysore Cinemas Reglllations Act read with Mysore Cinemas
Regulations
Ru.le~, 1971. ·
The appellant on 15 March, 1973 filed Writ Petition No. 755 of
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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 motor&;
or an oil engine.
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K. R. SHENOY v. MUNIC. COUNCIL (Ray, C.J.)
683
As to the fourth impeached resolution which is now the boneof
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 order 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 e11hibiting 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
SUPREME COURT REPORTS
[1975] 1 S.C.R.
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 Stadium
[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 grcl<nd
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.
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In the present case the appellant contends that the Municipality
has illegally sanctioned the plan for conversion into a cinema. The
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K. R. SHENOY v. MUN!C. COUNCIL (Ray, C.J.)
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 aetually 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 no•
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-Jaw 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] I 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
SUPREME COURT REPORTS
(1975] 1 S.C.R.
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 convers'ion 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 woi;Id not permit
the statute to be made an instrument of fraud. The impeached resolution of the Municipality has no legal foundation. The 1Iigh 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.
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