PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2025 >> [2025] FJHC 535

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

  Download original PDF

Lautoka City Council v Kumar [2025] FJHC 535; HBC213.2024 (15 August 2025)


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


CIVIL ACTION NO. HBC 213 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:
SATISH KUMAR
of 360 Sukanaivalu Road, Lautoka
DEFENDANT


BEFORE:
Hon. A.M. Mohamed Mackie - J.


COUNSEL:
Mr. W. Pillay- for the Plaintiff.
Ms. V. Cava for the Defendant.


HEARING:
Held on 25th April 2025


W. SUBMISSION:
Filed by the Plaintiff on 25th April 2025.
Filed by the Defendant 25th April 2025.


JUDGMENT:
Delivered on 15th August 2025.


JUDGMENT


  1. INTRODUCTION:
  1. The Plaintiff, Lautoka City Council (“LCC”) on 24th September 2024 filed the Originating Summons hereof against the Defendant, Satish Kumar, seeking the following orders and/ or declarations.
    1. THAT the Defendant being the current registered sub-lessee of Lot 52 on Deposited Plan 5640 physically located at 360 Sukanaivalu Road, Lautoka and fully described and contained in Lease No. 227725 and/or his 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 and/or all illegally constructed/developments on Lot 52 on Deposited Plan 5640 physically located at 360 Sukanaivalu Road, Lautoka and fully described and contained in Lease No. 227725, namely:
      1. Western side open shed measuring approximately 24 meters in length and 5.47 meters in width which further encroaches onto the side and front yard clearance requirements; and
      2. Font open shed addition (along Sukanaivalu Road) measuring approximately 10 meters in length and 5.47 meters in width which encroaches onto the front yard clearance requirement; and
      1. Eastern side open shed and water closet plus shower addition measuring approximately 10.5 meters in length and 4.1 meters in width which encroaches onto the side yard clearance requirement; and
      1. Double story enclosed structure at the rear measuring approximately 17.47 meters in length and 6.4 meters in width which encroaches onto the rear yard clearance requirements of a Residential 'B' Zoned site; and
      2. Illegal driveway constructed on the Plaintiffs Open Space along M N Naidu Road, Lautoka; And together with all other illegal development/structure ancillary therein AND that all costs associated with the said removal, pulling down and/or demolishing be borne by the Defendant as the current sub-lessee of Lot 52 on Deposited Plan 5640 at 360 Sukanaivalu Road, Lautoka and fully described and contained in Lease No. 227725 and/or his agent and/or employees and/or contractor and/or nominee.
    2. THAT the Defendant immediately cease and be permanently restrained from use of Lot 52 on Deposited Plan 5640 physically located at 360 Sukanaivalu Road, Lautoka and fully described and contained in Lease No. 227725 in a non- conforming manner namely the illegal use of a Residential 'B' zoned site/lot for packaging and bulk storage of fruits, vegetables and distribution and/or retail of fruits and vegetables to hotels and local market supplies.
    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:
      1. 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 52 on Deposited Plan 5640 physically located at 360 Sukunaivalu Road , Lautoka and fully described and contained in Lease No. 227725 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.
      2. 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-SK-01” to “MAK-SK-8”.
  3. The Defendant on 01st October 2024, having filed his Acknowledgement of service through Messrs. S. Nand Lawyers, filed his Affidavit in opposition on 7th February 2025, together with annexures marked as “SK-01” to “SKSK-4”. The Plaintiff on 18th March 2025 filed its Affidavit in reply sworn by the said Mohamed Anees Khan on 13th March 2025, together with the Town Planning Scheme marked as “MAK-SK-09”.
  4. The hearing was taken up on 25th April 2025, wherein counsel for both parties made oral submissions and also filed respective written submissions. Accordingly, this Ruling is pronounced by carefully perusing the contents of the Originating Summons, Affidavits , the annexures thereto, the Laws / Rule / Regulations that govern the subject and those of the written submissions filed by both parties.
  1. THE LAW:
  1. The Originating Summons states that the Plaintiff relies on relevant provisions of the Order 7 of the High court Rules , Section 6,7,10, 27 and 44 of the Town Planning Act of 1946, and Order 1,2 and 3 of Town Planning (Lautoka ) ORDER 1947 , Lautoka City Town Planning Scheme (1990) , Section 10,11,12,13, 17-39 Public Health Act and The Towns (Building) Regulations 1935, Clauses 9 and 10 of Lease No- 227725 Generally , Orders of the High court Rules and the Inherent Jurisdiction of this Court.
  2. 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.


  1. The Lautoka City Council is constituted and/ or established by and/ or under the Local Government act 1972 under which by Legal Notice number 181 of 1952 commencing on 1st January 1953, under the Town of Lautoka (Declaration and Boundaries) proclamation 1952, Lautoka was declared a town for the purpose of the Local Government Act. It reads;
    1. The Town of Lautoka shall be a town for the purpose of Local Government Act 1972.
    2. The boundaries of town of Lautoka shall be set out in in the schedule.
  2. By legal Notice number 30 of 1977 commencing on 25th February 1977, under the City of Lautoka Order 1977, the town of Lautoka was declared to be a city, which reads “The Town of Lautoka is declared to be a city”
  1. JURISDICTION OF THIS COURT:
  1. 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, it has opted to come before this Court as supported by the decided authorities shown below..
  2. 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”.


  1. The Defendant in this case 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, which has to be within the legal framework.
  1. ORDERS SOUGHT BY THE PLAINTIFF:
  1. The Plaintiff in its Originating Summons moves for Orders to remove, pull down and/ or demolish and/or cause to remove, pull down and/ or demolish, illegal addition to the existing legal structure and / or all illegally constructed / developments on Lot 52 on deposited plan 5640 physically located at 360 Sukunaivalu Road Lautoka and fully described and contained in lease No- 227725, namely;
    1. Western side open shed measuring approximately 24 meters in length and 5.47 meters in width which further encroaches onto the side and front yard clearance requirements; and
    2. Font open shed addition (along Sukanaivalu Road) measuring approximately 10 meters in length and 5.47 meters in width which encroaches onto the front yard clearance requirement; and
    1. Eastern side open shed and water closet plus shower addition measuring approximately 10.5 meters in length and 4.1 meters in width which encroaches onto the side yard clearance requirement; and
    1. Double story enclosed structure at the rear measuring approximately 17.47
      meters in length and 6.4 meters in width which encroaches onto the rear
      yard clearance requirements of a Residential 'B' Zoned site; and
    2. Illegal driveway constructed on the Plaintiffs Open Space along M. N Naidu
      Road, Lautoka; And together with all other illegal development /structure ancillary and orrelated.
  2. The Plaintiff also moves for that the Defendant immediately cease and be permanently restrained from use of lot 52 on Deposited plan No 5640 physically located at 360 Sukunaivalu Road, Lautoka and fully described and contained in Lease No- 227725 in a non- conforming manner namely the illegal use of a Residential ‘B’ zoned site/lot for packaging and bulk storage of fruits , vegetables and distribution and/ or retail of fruits and vegetables to hotel and local market supplies.
  3. The Plaintiff is before this Court seeking an order to compel the Defendant to demolish certain illegal structures constructed on lot 52 on Deposit Plan No- 5640 physically located at 360 Sukunaivalu Road, Lautoka fully described and contained in the Lease No- 227725.
  4. The fact that the Defendant is the sub-Lessee of lot 52 on Deposited Plan 5640 physically located at 360 Sukunaivalu Road, Lautoka described and contained in Lease No- 227725, is not in dispute (as per the annexure “MAK-SK-01”). It is also not disputed that the approval for building/ structure on the subject land was initially granted to one Chandra Wati , who was the Original sub- lessee on or about 24th February 1998. (as per the annexure marked as “MAK-SK-2”).
  5. The construction therein with approval is shown in the plan marked as “MAK-SK-03.
  6. It is on a complaint received by the Plaintiff about the illegal structure and/ or development by the Defendant on the said lot 52 on Deposited Plan 5640 located at 360, Sukunaivalu Road, Lautoka, fully described in Lease No- 227725 and after causing an inspection done by its Building Inspector Mr. Roneesh Kumar on 28th February 2024 and acting on his written Statement on his findings, the Plaintiff has prosecuted against the Defendant. The Statement by Roneesh Kumar and the photographs taken by him are produced before me as “MAK-SK-01” & “MAK-SK-05”.
  7. The Plaintiff, having sent a Notice dated 7th March 2024 marked as “MAK-SK-06” to the Defendant, and having done an inspection as aforesaid at the expiry of that Notice on 29th May 2024 has found that the aforesaid illegal structures and the illegal driveway remain as they were and the Defendant has done nothing to remove or demolish the same or to close the illegal driveway.
  8. The Plaintiff has also satisfied this Court by doing a mock site illustration overlaid on the part of the building for which the approval was granted to the Defendant on 11th November 2010. It has demonstrated the extent of the illegal structure / development on lot 52 (the subject matter land) as per the annexure marked as “MAK-SK-07”. I also find that in paragraphs 12 to 15 of the affidavit in support, that the Plaintiff has more fully described the said illegal structure/developments and the driveway created without the approval of the Plaintiff.
  9. On overall scrutiny and consideration of the Plaintiff’s complaint against the Defendant through the Originating Summons and the averments in the Affidavits filed, and on further consideration of the submissions made by the parties orally and writing, in the light of the relevant laws and regulations relied on by the Plaintiff, I find the Plaintiff has proved the unauthorized structures, the creation of a new driveway and that it is entitled for the Orders/ Declarations sought against the Defendant.
  1. THE DEFENCE:
  1. The Defendant in paragraph 5 of his ,purported, Affidavit in opposition filed on 7th February 2025, while admitting that he is the lessee and the registered owner of the subject land lot 52 in Deposited plan 5640 under Lease No-227725 located at No-360, Sukunaivalu Road , Lautoka, has not disputed or denied the applicability of the relevant Laws, Rules and Regulations relied on by the Plaintiff for the purpose of this Application, and instead simply alleges that that it is the duty of the Plaintiff to assist in new application for future Plans.
  2. In paragraph 5 of the Affidavit in support, what the Plaintiff states is that it is empowered to enforce the Town Planning Act, the Town (Building) Regulations 1935, Local Government Act amongst other Acts to bring this action against the Defendant. If the Defendant deny this averment, what the Defendant is expected to do is to satisfy this Court that his premises cannot be subjected to the Application of those Laws, Rules and Regulations pleaded and relied on by the Plaintiff. He cannot evade by merely calling for evidence on his violation, when the violation itself, as demonstrated by the Plaintiff through its approved plan, drawings on deviations, inspection report, stand as convincing evidence as to how the Defendant has violated and breached the relevant laws, rules and regulations. If the structure or development is not in conformity with the relevant Laws, Rules and Regulations according to Plaintiff’s own finding, there need not be any prohibition for the Plaintiff to act on it.
  3. When the paragraph 7 of the Affidavit in support clearly highlights the unauthorized structures in the subject land at No-360, Sukunaivalu Road, the Defendant in response thereto, as per in paragraph 9 of his Affidavit in opposition, states about his compliance to the Food and safety Act Regulations , Medical Services in relation to the environment and the new extension of his property, by annexing a copy of a License issued for his “Market Place Stall” marked as “SK-2”, which is in relation to his stall at the Market Place -Lautoka. This has nothing to do with the unauthorized structure at the subject matter land and the creation of the illegal driveway.
  4. Merely producing some letters written by him and signed by the neighbours marked as “SK-3”, as averred in paragraph 10 of his affidavit in opposition, will not absolve the Defendant from his wrongdoing and violations. However, those documents cannot be admitted as evidence in the Court of law. Those are only self-serving documents.
  5. The Defendant has admitted the receipt of the Notice sent by the Plaintiff as Per paragraph 11 of his affidavit in opposition. Notably, he has not disputed the contents of the said letter.
  6. In relation to the averments in paragraph 10 of the Plaintiff’s affidavit in support on the specific violation by the Defendant, the response that he has given in paragraph 12 of his affidavit in opposition is only a mere denial, and nothing has been adduced to show that those structures/ developments are done as per an approved plan or have been regularized subsequently.
  7. In relation to the averments in paragraph 11 of the affidavit in support, the response of the Defendant as per paragraph 13 of his Affidavit in opposition is only mere denial and the production of a receipt in proof of certain payment made for his Market Place stall and not in relation to the subject property.
  8. Further, by the averments in paragraphs 14 and 15 of his Affidavit in response, the Defendant has tacitly admitted the existence and the usage of the unauthorized structures adjacent/ annexed to his authorized structure. Further, the Defendant by the contents of paragraph 16 of his Affidavit in opposition, has admitted that there is a driveway that gives access to and from his house, and he or his family members are not dependent on the driveway descried by the Plaintiff as an illegal one, which he describes as an “open space”
  9. The Defendant takes up the position that the structures described by the Plaintiff “as unauthorized” is only an open shed. I am yet to come across any provision which states that “an open shed” does not fall within the meaning of an unauthorized structure. Thus, the stance taken by the defendant in paragraph 18 of his Affidavit in opposition cannot be accepted.
  10. The objection taken up by the Defendant with regard to the authority of the Chief Executive Officer of LCC, Mohamed Anees Khan, to swear Affidavits, will not hold water in view of the provision in section 135 of the Local Government Act.
  11. The propriety of the Defendant’s affidavit in opposition, as raised by the Counsel for the Plaintiff, is also questionable. However, for the sake of fair play and in the interest of justice, I have disregarded the objection thereto and proceeded to consider the merits of the purported defence advanced by the Defendant. The Defendant does not have any approval for this unauthorized erection/ development and for the creation of a new driveway.
  12. The fact that the Defendant has applied for rezoning itself, in my view, is a tacit admission on the part of the Defendant that he has violated the relevant Laws, Rules and Regulations that govern the subject. The unauthorized constructions, erections and additions to the existing authorized building and creation of a new driveway, as pleaded and particularized by the Plaintiff in its Originating Summons, Affidavit in support and annexures thereto, have been proved by the Plaintiff against the Defendant on preponderance of evidence.
  13. The Defendant, in his Affidavit in opposition and in the written submissions, has admitted the violation committed by him. His defence and submissions on it are with no merits.
  14. The Defendant received the Notice dated 7th March 2023 under Section 27 (2) of the Act. He has had sufficient time to have his unauthorized structures removed / demolished. He has not complied with the Notice sent by the Plaintiff and thereby violated the provisions of Town (Building) Regulations of 1935 and those of the other Laws, Rules and Regulations. The Defendant has not shown any acceptable defence and satisfied the Court to disallow the Plaintiff’s application. Thus, I have no reason to disallow the orders / declarations sought by the plaintiff.
  1. COSTS:
  1. 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 costs on indemnity basis. The Defendant has had sufficient time more than 30 months from the date of Notice to have complied with to have his alleged structures removed/ demolished. He has not acted diligently and continues to violate the relevant laws and regulations. Accordingly, the Court decides to grant the reliefs as prayed for in the Originating Summons.
  1. FINAL ORDERS:
    1. The Plaintiff’s Originating summons against the Defendant succeeds.
    2. Orders sought for in paragraphs 1 and 2 of the Originating summonses are granted.
    1. Costs to the Plaintiff is allowed as prayed for same to be taxed, if not agreed.
    1. However, the Defendant is given 6 weeks’ time from the date of service of this Orders to have the said unauthorized structures removed and/ or demolished.
    2. 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.

A.M. Mohamed Mackie
Judge


At the High Court of Lautoka on this 15th day of August, 2025.


SOLICITORS:
For the Plaintiff: Messrs. Gordon & Company, Barristers & Solicitors
For the Defendant: Messrs. S. Nand Lawyers, Barristers & Solicitors


PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2025/535.html