IN   THE   HIGH    COURT OF FIJI
AT LAUTOKA
(WESTERN   DIVISION)

Civil Action No.33 of 2024

BETWEEN: 
LAUTOKA CITY COUNCIL a duly incorporated
 body, having its registered office at 169 Vitogo
 Parade, Lautoka, Fiji, constituted under the
            provisions of the Local Government Act   1972
PLAINTIFF

AND: 
MANOJ KUMAR of 25 Mutlah Street, Lautoka.
DEFENDANT

BEFORE: Mr. A.M. Mohamed Mackie- J.
COUNSEL: Mr. W. Pillay- for the Plaintiff.
:	Mr. Anand V. for the Defendant - on 13th May 2025.
HEARING: Disposed by way of written submissions.
W. SUBMISSION: Filed by the Plaintiff on 06th March 2025.
: filed by the Defendant belatedly on 9th May 2025.
RULING: Delivered on 14th May 2025.

JUDGMENT

A.	INTRODUCTION:

1.	Before me is an Originating Summons preferred by the Plaintiff, Lautoka City Council (“LCC”) on 20th February 2024 against the Defendant, Manoj Kumar, seeking the following orders and/ or declarations.
1.	THAT the Defendant and/or the entity that is the current lessee of Lot 5 on Deposited Plan 7039 at 25 Mutlah Street, Lautoka and fully described and contained in Lease No.  337404 and/or his/their agent  and/or employees   and/or contractor and/or nominee  remove,  pull down  and/or   demolish and/or cause to remove, pull  down  and/or  demolish the illegal additions to the existing legal structure, namely the  car port constructed meaning  15.7 meters  by 2.5  meters constructed on Lot 5 on Deposited Plan 7039 at 25 Mutlah Street, Lautoka and fully described and contained in  Lease No. 337404  and together  with all other illegal development/structure ancillary and/or related therein AND that all costs associated with the said removal, pulling down and/or demolishing be borne by the Defendant and/or the entity that is the current lessee of Lot 5 on Deposited Plan 7039 at 25 Mutlah  Street, Lautoka and fully described and contained in  Lease No.   337404 and/or his/their agent.

2.	THAT the Defendant and/or the entity that is the current lessee of Lot 5 on Deposited Plan  7039  at 25  Mutlah Street,  Lautoka and  fully described  and contained in Lease  No. 337404  and/or his/their agent and/or employees  and/or contractor and/or nominee  remove, pull   down  and/or demolish and/or cause  to remove,   pull down and/or  demolish the illegal additions to the existing legal structure, namely the double story structure constructed meaning 12 meters by 2.5 meters  constructed on Lot 5 on Deposited Plan 7039 at 25 Mutlah Street, Lautoka and fully described and contained in Lease No.  337404 and together with all other illegal development/structure ancillary and/or related therein AND that all costs associated with the said Removal, pulling down and/or demolishing be borne by the Defendant and/or the entity that is the current lessee of Lot 5 on Deposited Plan 7039 at 25 Mutlah Street, Lautoka and fully described and contained in Lease No. 337404 and/or his/their agent.

3.	THAT the Court grant such further Orders that the Court deems just and necessary in the circumstances of this action and/or to give effect of the Orders of the Court. 

4.	THAT the costs of this action be paid by the Defendant to the Plaintiff on an
indemnity basis on the grounds that: 
A. In the affidavit of Mohammed Anees Khan, the Defendant has
and was given sufficient notice to comply and/or rectify the building   located at Lot 5 on Deposited Plan 7039 at 25 Mutlah Street, Lautoka and fully described and contained in Lease No.  337404 and specifically demolish the illegal additions to the existing legal structure, namely the car port constructed meaning   15.7 meters by 3.5 meters and the double story structure constructed meaning 12 meters by 2.5 meters constructed on Lot 5 on Deposited Plan 7039 at 25 	Mutlah Street, Lautoka and fully described and contained in Lease No. 337404; and.
B.    The Defendant has no legal defence as the Town Planning Act and the Regulation 18 (2) of the Town (Building) Regulations 1935   specifically states that clearly says that no written or verbal approval contrary to the law shall authorize the construction or alteration of any building.
2.	The originating summons is supported by the Affidavit of Mohammed 
 Anees Khan, the Chief Executive Officer of the LCC, and filed along with annexures marked as “MAK-1” to “MAK-5”.

3.	The Defendant on 12th September 2024 appeared in person,  who was granted 28 
days to show cause by way of filing his Affidavit in opposition as to why the said
 illegal/ unauthorized structures should not be removed or demolished. Accordingly,  
 on 1st   October 2024   he filed his Affidavit in with annexures marked as “MAK-1” &
 “MAK- 2”.

4.	However, when the matter came up for Ruling on 13th May 2025 as it had been
already fixed, Mr. Anand, representing the Defendant on behalf of Messrs. Iqbal
Khan & Associates informed the Court that they have filed written submissions for the
 Defendant belatedly on 9th May 2025. Accordingly, with the consent of the Plaintiff’s
 Counsel Mr. W. Pillay, the Ruling was re-fixed for today 14th May 2025 in order to
 consider the contents of the written submissions filed by the Defendant as well.

5.	Accordingly, this Ruling is pronounced by perusing the contents of the 
Originating Summons, those of the Affidavit in support thereof, the Affidavit in
opposition, the annexures thereto and the written submissions filed by both parties.

B.	 THE LAW:

6.	The Originating Summons states that the Plaintiff relies on relevant provisions of the        Town Planning Act of 1946, Public Health Act and The Town’s (Building) Regulations 1935, Order 7 of the High Court Rules and the Inherent   jurisdiction of this Court.

7.	 Section 27 of the Town Planning Act of 1946 states as follows:
		27. (1) Subject to the provisions of this section, the local authority may at any time-
			   (a) remove, pull down or alter, so as to bring into conformity with the provisions
                      of the scheme, any building or other work which does not conform with those
                      provisions or the removal, demolition or alteration of which is necessary for
                      carrying the scheme into effect, or in the erection or carrying out of which
                     any provision of the scheme has not been complied with; or
			  (b) where any building or land is being used in such a manner as to contravene
                     any provision of the scheme, prohibit it from being so used; or
			 (c) where any land has since the material date been put to any use which
                    contravenes any provision of the scheme, reinstate the land; or
			(d) execute any work which it is the duty of any person to execute under the
                    scheme in any case where delay in the execution of the work has occurred 
                   and the efficient operation of the scheme has been or will be thereby
                   prejudiced.
		(2)  Before taking any action under this section the local authority shall serve a
             notice on the owner and on the occupier of the building or land in respect of 
            which the action is proposed to be taken and on any other person who, in its
            opinion, may be affected thereby, specifying the nature of and the grounds upon
            which it proposes to take that action. (Emphasis mine)
		(3) The date stated in a notice served under this section as the date on or after
            which the intended exercise of the power therein mentioned is intended to be 
            begun shall not be less than three months when any building is affected and in
           any other event not less than one month after the service of such notice, and
           the local authority shall not do any act or thing in exercise of such power in 
            relation to the building or land mentioned in the notice before the said date.
		(4) If any person served with such a notice as aforesaid considers the period fixed 
            by such notice to be insufficient or desires to dispute any allegation or matter 
            contained therein, he may within twenty-eight days from the date on which he
            received such notice give notice of objection, and of the grounds thereof, in 
            writing addressed to the local authority, and such objections shall be submitted,
            heard, considered, and decided in the same manner as is provided in sections 
            21, 22 and 23.
			(Amended by 14 of 1961, s. 8.)	
		(5) Every person who uses any building or land in a manner prohibited under the
             provisions of this section, or obstructs or interferes with the exercise by the 
             local authority of any power vested in it shall in addition to any civil liability be
             guilty of an offence and liable to a fine of one hundred dollars.
		(6) Any expenses lawfully incurred by the local authority under the provisions of
            subsection (1) may be recovered as a civil debt from the person in default. (all
           emphasis mine).

		C. JURISDICTION OF THIS COURT:
	8. 	As per the Section 27 (5) of the Town Planning Act, though the Plaintiff had the
   	liberty of prosecuting the Defendant before the Magistrate’s Court, the Plaintiff
   	has opted to come before this Court for obvious reason. (Vide paragraph 17 of the
   	Affidavit in Support).
9.   In Lautoka City Council v Singh [2010] FJHC 106; HBC212.2008L (7 April 2010) 
 Hon. Justice A. Tuilevuka, as the then Master of the High Court, in paragraph
 10 and 11 of his judgment, by citing an English Judgment, stated as follows.
	“10. In such a situation, the High Court has often been called upon to exercise its
      reserve power [1] to enforce the applicable statute(s) and/or regulation(s)
      through the granting of an injunction or a declaration against a recalcitrant
      Defendant.
		11. In Stafford Borough Council –v- Elkenford Ltd [1977] 2 ALL ER, such a power
            was held to apply even if the local authority responsible for enforcing the
            statute(s)/regulations has not exhausted the remedies provided by the statute”.
10. The Defendant has not raised any issue in this regard. Thus, I find that this Court 
     is clothed with necessary jurisdiction to deal with this matter in order to enforce
     the provisions of the Town Planning Act of 1946 and other relevant statutes/ 
     regulations. Accordingly, I have no hesitation in exercising my jurisdiction and 
     granting the relief against the Defendants in this case, as prayed for in the
     Originating Summons, unless the Defendant convinces me not to do so.

 D. ORDERS SOUGHT BY THE PLAINTIFF:
11. The Plaintiff in its Originating Summons complains about two unauthorised
      structures, allegedly, erected by the Defendant in his Land depicted as lot 5 
      in deposited Plan No-7039 and situated at No-25 Mutlah Street, Lautoka, which
      is fully described and contained in Lease No- 337404. It moves for  2  Orders
      to remove, pull down and or demolish and / or cause to remove , pull down and/or
     demolish  said illegal  additions  , namely   , the Car Port  constructed in
     the extent of 15.7  X 2.5 Meters  and the double story  structure constructed 
      in the extent of 12X 2.5 Meters on the said Lot-5, which are  in addition to the
      existed legally approved  structures by the Water Authority Fiji on 27th February
      2013,  Housing Authority on 7th March 2013 and  Lautoka City Council on 2nd May 
     2013 as prayed for in its Originating Summons. 
12. Upon receipt of a complaint by a neighbour of the Defendant, the Plaintiff has
     caused an inspection done through its Building Inspector Mr. Roneel Ronish
     Kumar on 10th June 2020, who in turn furnished a written statement of his findings
     together with photographs of alleged illegal structures on the said lot-5, which are
      marked as “MAK-02” & “MAK-3”. Pursuant to this, the Plaintiff on 16th June 2020 sent 
      the Notice to the Defendant as required by Section 27 (2) of the Act.
13. A further complaint being made to the National Fire Authority (NFA) by a
      neighbour, having inspected the relevant premises on 27th January
      2022, the NFA, has submitted its “Fire Safety Inspection Report”  
     marked as “MAK-5”, contents of which and that of the photographs annexed  
     thereto clearly demonstrate the breach by the Defendant. 

	 E. DEFENCE:
14.The Defendant in the Affidavit in opposition sworn on 30th 
      September 2024 and filed on 1st October 2024, has not disputed, denied or 
      contested any of the averments contained in the plaintiff’s Affidavit in support.
      Instead, he has admitted the erection of the structures complained of by the 
      Plaintiff. 
15. The Defendant also states that he made a request to LCC to submit a plan to
     legalize the constructed structure. There is no evidence of making such a 
     request or for the submission of a Plan for the regularization of the unauthorised
     construction. The Defendant also alleges that there are   many other illegal 
     constructions in the area, and produced some photographs to demonstrate it. The
     Court cannot act on such unsubstantiated allegations until and unless it is moved by 	the Plaintiff supported by evidence. 
16. Such allegations by the Defendant may be true .However, as long as those 
    constructions, are condoned, tolerated and not complained by the people 
    who are concerned about or affected by it, such violations may go unreported and 
    unchecked.  However, it cannot be a ground for the Defendant to evade his 
    culpability in this matter. 
17. Finally, the Defendant claims that one of the structures is his Prayer house and he
     has the right to worship in it. This is not a defence for the defendant to justify his, 
     admitted wrongdoing and violation of the laws. 
18. The Defendant in his belated written submissions is in an attempt to pin the blame on
     the Fire Safety Inspection Report, mainly on the ground that it is not signed.
     However, the Defendant in his submissions has admitted the fact that there was an
     inspection. If he was not satisfied of the method as to how the inspection was done,
     he could have obtained an alternative Report with the inspection done with the view
     taken from his side of the premises and in his presence.
19. The said Report was a part of the Affidavit in support. If the Defendant was
     challenging the Report, its contents and other aspects of the Originating
      Summons, he could have objected to the mode of filing this action and moved for
      the action to   be converted as a writ action. He did not make such an Application.
      However, the Defendant in his Affidavit in opposition and in the written 
      submissions has admitted the violation committed by him. His submissions are with
      no merits.
20. The Defendant received the Notice under Section 27 (2) of the Act in June 2020.
      He has had nearly five (5) years’ time to have his unauthorized structures duly
      regularized or demolished. He has not complied with the Notice sent by the 
     Plaintiff and thereby violated the provisions of Town (Building) Regulations of 
     1935 .The Defendant has not shown any acceptable  defence and satisfied the Court
     to disallow the application . Thus, I have no reason to disallow the orders sought by
     the plaintiff.
 F. COSTS:
21. The Section 27 (5) of the Town Planning Act provides for the recovery of the 
      expenses caused to the Plaintiff during this process. The Plaintiff is moving for a
      sum of $ 17,800.00 on indemnity basis. The Defendant has had sufficient time
      nearly for last 5 years to have complied with the notice given or to have his alleged 
      structures regularised. For the reason/s best-known to him, he has not acted
      diligently and continues to violate the   relevant laws and regulations. 

	G. FINAL ORDERS:
a.	The Plaintiff’s Originating summons against the Defendant succeeds.

b.	Orders 1 and 2 of the Originating summonses are granted.

c.	Costs to the Plaintiff is allowed on an indemnity basis, to be taxed, if not agreed.

d.	However, the Defendant is given 6 weeks’ time from the date of service of this Orders to have the said unauthorized structures regularised to the satisfaction of the Plaintiff or to comply with the Orders granted above and  have the said unauthorised structures removed and/ or demolished.

e.	Failure on the part of the Defendant to comply with these Orders within the said period, will result in the Plaintiff having the Orders executed on further Costs to be borne by the Defendant. 

On this 14th Day of May 2025 at the High Court of Lautoka.

A.M. Mohamed Mackie.
Judge- High Court.
Lautoka.

SOLICITORS: 
For the Plaintiff:  Messrs Gordon & Company – Barristers & Solicitors.
For the Defendant: Messrs Iqbal Khan & Associates – Barristers & Solicitors.