ALL.ES, J.-'-Dingiri Banda v. Gomez
Present: Alles, J.
A. P. DINGIRI BANDA, Appellant, and A. GOMEZ (Public HealthInspector), Respondent
S. C. 5-5S/70, with Application in Iicvision 601/70—HI. C.Kuliyapitiya, 35SS9
Housing "nil 'Vc.cn Irnjirovcrr.c.nt Ordinance (Cap. JCS)—Sections 6, 13 (/), 13 (?)—Contra cent inn of s. 5—Plea of gait!—Accuse'! unmetI and discharged—Ajiplica-ti/iii thereafter for demolition of the unauthorised building—Mdintctinnbiliti/—Ihthj of Magistrate to exercise discretion.
A plea of guilt nmonnfs to a conviction for the purposes of section IS i'2)of the Housing aval Town jTjnpir.voireni Ordinance, even if tho accusedlias been warned end discharged in terms of section 325 of tho CriminalrVoeod'_r<i Code,
'Alien r.n application for a mandatory order for the demolition of anunauthorised building is made under section 13 (2) of the .Housing andTown Improvement Ordinance, it is the duty of tho Mogistrnto to exercisehis discretion before ho makes an order for the demolition of the building.
_/-PPEAL, with application in revision, against an order of theMagistrate's Court, Kuliyapitiya.
P. Somalilakam, with B. Bodinagoda, for the accused-appellant andpetitioner.
Labshtnan Kadirgamar, for tho complainant-respondent.
Cur. adv. vult.
February 28, 1971. Aixks, J.—
Tho accused-appellant in this caso was charged under the Housing andTown Improvement Ordinance (Ch. 2CS) with having erected or causedto be erected a semi-permanent building with planks within thoadministrative limits of the -Narammala Town Council without plans,drawings and specifications approved in writing by the Chairman of thoCouncil, in contravention of Section 5 of the said Ordinanco and thereby-committing an offence punishable under Section 13 (1) of the saidOrdinance.
On 2nd December 1967 the appellant moved to withdraw his formerplea of not guilty and pleaded guilty to the chargo. Tho Magistratethereupon warned and discharged tho appellant and ordered him topay Rs. 5 to charily which sum he duly paid.
Over two years later, on 5th March 1970, tho present Chairman of thoCouncil moved Court to issue a mandatory order under Section 13 (2)of tho Ordinanco for a demolition of the building. Notico was issued ontho appellant for 27th April 1970 and on 19th May 1970, Counsel on
ALL.ES, J.—-Dingiri Banda v. Gamez
behalf of tho appellant stated that he had cause to show against thedemolition. At the inquiry on 3rd June 1970, Counsel for the appellantsubmitted that there was no conviction as contemplated under Section13 (2) of the Ordinance since (ho appellant had been dealt with underSection 325 of the Criminal Procedure Code. It was also his submissionthat tho plea of guilt was erroneously made. On 13th June 1970 thelearned Magistrate considered further submissions of Counsel and hold,following the decision of Garvin J. in Vandersmagt v. Pompeus thattho plea of guilt tendered by the appellant amounted to a convictionunder Section 13 (2) of the Ordinance. The teamed Magistrate thereafterissued a mandatory order on the appellant to demolish tho buildingwithin four months, failing which tho Chairman of (he Town Councilwas authorised to do so.
I am in agreement with the decision of Garvin J. that a pica of guiltamounts to a conviction for tho purposes of Section 13 (2) of tho Housingand Town Improvement Ordinance. Counsel’s submission on thispoint thereforo fails. However, the further point has been raised byCounsel for tho appellant that tho learned Magistrate in this case hasnor exercised his discretion before making the order for tho demolitionof the building. In the caso of Vandersmagt v Pompeus (supra), beforeGarvin J. dismissed the appeal, he considered the merits of the easeand held that tho learned Magistrate had correctly exercised his discretionbeforo ordering tho demolition of the building. As far as I have beenable to ascertain from the proceedings in the present case there is nothingto indicate that the Magistrate had exercised am' discretion beforeissuing the mandatoiy order for the demolition of the building. Counselfor the appellant has urged before mo that tho discretion that has to boexercised under Section 13 (2) is not an absolute discretion flowingfrom a conviction under Section 13 (1), but one in which the Magistratemust consider the merits of the case and lias cited several authorities insupport—21 N. L. R. 473; 27 N. L. R. S3 ; 7 C. XV. R. 27 and 109. InBartholomeusz v Fernando – Schneider J. has held that the word "may ’*in Section 13 (2) has not the force of the word “shall ” but is merelypermissive. In Borlholomeusz v. Perera 3 Sampayo J. said—
“ The mandatory order asked for is not a matter of course. Thoaccused person has the right to show cause against it and the niagistratois bound to exercise his discretion. ”
Sampayo J. followed the decision of tho Calcutta High Court in AbdulSamad v. Corporation of Calcutta 4 that it is discretions"y with thoMagistrate to pass an order for demolition or not. Said Sampayo J.—
“ It was maintained, however, at tho argument of this appeal,that if the Municipal Council was satisfied as to the necessity orexpedience of demolition, the magistrate himself lias no discretion inthe matter. Tho same argument was addressed to tho Calcutta
1 (192G) 4 Times GJ.
5 (1919) 7 c. ir. R. 109.
(1919) 7 C. W. R. 109 at p. 111.(1905) I. L. R. 33 Calcutta 257.
Superintendent, We-Oya Group, Yatiyantola v. Ceylon Estate*] sf)
High Court in the above case but without- success. I venture to agree-with the decision on that point. The question is then whet hoi- inthe circumstances of this case the magistrate has exercised his discretionproperly. As a matter of fact he exercised no discretion whatever,and I must therefore consider the circumstances myself. ”
The learned Judge thereupon proceeded to consider the-circumstancesof the case before him and held that the appellant ought not to becompelled to demolish the building in question.
In the present case too, there is nothing to indicate that the Magistrateexercised airy discretion whatever in making the order of demolition.The appellant in his connected application for revision of the Magistrate’sorder (S. C- 651/70) has stated tha t he demolished a portion of the buildingwhich encroached on the street lines and pleaded guilty to the charge inrespect of the rest of the building. Having regard to tire long delay inthe application for a mandatory order to demolish the building, one mayfairly assume that the building in question did not constitute an injuryor obstruction to the public and that the Council have hot beeninconvenienced in any way by the presence of tire unauthorised building.The learned Magistrate should have probed tire reason for the delayand investigated the sudden urge of tire Council'to take action against-the appellant,. This would necessarily have called for the exercise ofhis discretion under Section 13 (2). Since this has not been done, I setaside the Magistrate’s order and direct, that the case be remitted to tireCourt belowr for a consideration of tire merits of the case before decidingwhether the demolition order should be made effective or not.
Case sent back for further proceedings.
A. P. DINGIRI BANDA, Appellant, and A. GOMEZ (Publice Health Inspector), Respond