The construction of a boundary wall abutting on any public street, regardless of its height, requires permission under the Kerala Municipal Corporation Act, 30 of 1961.

1. The petitioner was prosecuted in Summary Trial No. 1533 of 1965 before the Additional I Class Magistrate, Trivandrum, for offences punishable under Ss.263 (1), 378 and 383 of the Kerala Municipal Corporation Act, 30 of 1961, as amended by Act 13 of 1964, hereinafter called the Act, in that she constructed a compound wall on the boundary of her property without getting the permission of the Commissioner of the City Corporation. The petitioner contended that the wall in question was constructed 71/2 links within her compound, that the wall is not abutting on any public street and is less than 8 feet in height and so no permission was required under the law for the construction of the wall. The trial court convicted the petitioner and sentenced her to pay a fine of Rs. 30/-, in default to undergo simple imprisonment for one month. This petition challenges the validity of that order.

2. Counsel for the petitioner submitted that by constructing the boundary wall, the petitioner has not committed any offence as the boundary wall was not 8 feet in height and that by constructing such a wall he cannot be said to have constructed a'building' within the meaning of S.3 (4) defining "building". S.242 (1) of the Act reads:

"(1) If any person intends to construct or re-construct a building he shall send to the Commissioner,

(a) an application in writing for 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.

Explanation "Building" in this sub-section shall include a wall or fence of whatever height bounding or abutting on any public street."

S. 244 of the Act runs as follows:

"The construction or re-construction of a building shall not be begun unless and until the commissioner has granted permission for the execution of the work".

It is clear from the two sections that a person who intends to construct a "building' must make the necessary applications for the approval of the site and for executing the work and that construction shall not be begun until the Commissioner has granted the permission to execute the work. It was argued by counsel for the petitioner that the word 'building' in S.244 means a 'building" as defined in S.3 (4) of the Act, which says:

"'building' includes a house, out-house, stable, latrine, shed, hut, wall (other than a boundary wall not exceeding eight feet in height) and any other structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever."

and therefore, the construction of the boundary wall in question which is below 8 feet in height was not an offence. I cannot agree. In S.242, the explanation to sub-section (1) is clear that the word 'building' in that section includes a wall or fence of whatever height bounding or abutting on any public street. No doubt, the explanation says that the definition is for the purpose of that sub-section. But, when we look at the scheme of S.242 to 248 it would be clear that the word 'building' as used in S.244 is intended to bear the meaning of that word as defined in the explanation to sub-section (1) of S.242. Otherwise, it will reduce itself to an absurdity. A person has to make applications in writing for the purposes mentioned in S.242 if he intends to construct a boundary wall abutting on any public street, whatever be its height as that would be a 'building' within the meaning of the explanation to sub-section (1) of S.242, and get permission to execute the work. If applications are necessary, the permission referred to in S.244 must be for construction of a 'building' as defined in the Explanation to S.242(1). Otherwise, it would amount to this: A person proposing to construct a boundary wall abutting on a public street of whatever height has to make an application for permission to execute the work under S.242, but there is no sanction if he constructs the wall