AKBAR J.—Bartholomeusz v. Deen.
i931Present: Akb&r J.
BARTHOLOMEUSZ t>. DEEN.
613—M. C. Colombo, 3,078.
Housing and Town Improvement Ordinance—Application for mandatory order
to demolishbuilding—Buildingnot abutting on street—Specialrule for
tenements—Exerciseof Chairman'sdiscretion—OrdinanceNo.19 of
1915, s. 18 (1) and rule 7 (a) in the schedule to Ordinance.
Where an application was made for a mandatory order for the demo-lition of a buildingontheground that thebuilding did not ■conform to
section 18(1)(6)oftheHousing andTown ImprovementOrdinance,
which requiresthat everynewbuilding must eitherabut upona street
or have all the land between one face of the building and the streetreserved for its use,—
Held, thatthe sectionhadno application totenements for which
special provision is made under rule 7 (a) of the schedule to the Ordinance.
A mandatory ordershouldnot be askedfor unless the Chairman or
some superior officeroftheMunicipality, towhom his powershad been
delegated, is •satisfied thattheorder for demolitionis justifiedin the
particular circumstances of the case.
^^PPEAL from an order of the Municipal Magistrate of Colombo.
The facts appear from the judgment.
H. V. Pereta (with him Iyer and Haniffa), for accused, appellant.
N. Nadarajah (with him Abeysekera), for complainant* respondent.November* 2, 1931. Akbar J.—
This is an appeal from an order of the Municipal Magistrate orderingthe accused to demolish the building on premises No. 109/5 at Marad&nabelonging to him under section 13 (2) of Ordinance No. 19 of 1915. Underthat section when any person is convicted under sub-section (1)
AKBAR J.—Bartholomeusz v. Dccn.
the rhairman may apply to the Magistrate for a mandatory orderand the Magistrate may on such application order the demolition of the-building. It will be seen from the section and from certain cases decidedby the Supreme Court, namely, Anthonis v. Fernando1, and Bartholonieuszv. PereraJ, that such demolition order does not follow as a matter ofcourse on the conviction of the accused for an offence under sub-section(!) of that section. As Mr. Justice de Sampayo stated, “ A mandatoryorder asked for is not a matter of course. The accused person has a rightto show cause against it and the Magistrate is hound to exercise hisdiscretion.” The question in this appeal is, as was pointed out in thesecond case mentioned above, whether the Magistrate had exercised hisdiscretion properly. In the case of the Chairman, Local Board, Kuru-negala v. Meera Saiho3 it was held that no mandatory- order for thedemolition of a building should issue where a building does not contravenesome provision of the law, or even where by some alteration it could bebrought into accordance with the law. If we apply these principles tothe present case we find the following facts proved: —The accused waaconvicted and was fined Rs. 25 for erecting the building in questionwithout the pel-mission of the Chairman. The prosecuting inspectorstated that the main objection against the building was that the buildingdid not abut on a street as required by section 18, sub-section (1) (6), whichstates that every building erected after the commencement of thatOrdinance was either to abut upon a street or to have all the land between-one face of such building and the street reserved for the use of the building.The prosecuting inspector admitted that except for this objection the-building complied with all the other requirements of the Ordinance. Healso, admitted that the old building was of wattle and daub and the newbuilding was of masonry. He further admitted that the building was 35to 36 feet in length and .that it was a block of tenements and that it wouldprobably be used by the labouring classes. He further admitted that theChairman had not visited the spot. It was pointed out to the MunicipalMagistrate that section 18 (1) (b) was a section of general application butthat the effect of it was relaxed in the case of “ ranges or blocks of build-ings wholly or mainly adapted to be inhabited in tenements by personsof the poorer or of the labouring classes ” in the sense set forth in rule-7 (a) in the schedule to the Ordinance. The Magistrate states in hisjudgment that although he is not prepared to agree that rule 7 in anyway over-rides or supersedes the provisions of section 18, it is merelysupplementary to that section. I cannot understand his reasoning as Ithink rule 7 (a) applies to the present case. If it is supplementary itcannot be ignored. It is a well known principle of law that when thereis a general provision of law and a later provision applying to a special,case .the later provision will be regarded as an exception and applicableto the special case mentioned. I have no doubt in my mind that rule7 («) ir. the schedule is applicable to the building in question on theadmissions of the prosecuting inspector. Rule 7 (a) is as follows: —“ The following special provision shall apply to ranges or blocks ofbuilding wholly or mainly adapted to be inhabited in tenements by persons,»f Jhe poorer or labouring classes: Every face of any such range or block> 7 G. W. R. 58.* 27 N. L. R. 83.* 7 C. W. R. 109.
AKBAR J.—Bartholomeusz t. Been.
which ib less than 100 feet in length shall be provided with adequatedirect access to a public street from each tenement to the satisfaction ofthe Chairman.'*
As I have stated, the inspector admitted that these tenements were 35to 36 feet in length. Therefore the ground on which the prosecutinginspector applied for a mandatory order, namely, that the building doesnot abut on a street or have all the land between one face of such buildingand the street reserved for the use of the building, does not apply andthe application for a mandatory order fails at the very beginning. Theevidence shows that rule 7 (a) was not even thought of by the Municipalauthorities as affecting the present case. The Magistrate was taken bythe parties to show that there was adequate access, but he seems to h&vebeen satisfied that the access being over lands of others it was not directaccess as required by rule 7 (a). But this surely is the wrong test toapply. It is the Chairman who must be satisfied and not the Magistrate;and the Chairman never thought of rulfe 7 (a). The demolition orderwas of serious consequence to the accused as it means the destruction ofvaluable property and the total loss of the ground on which the buildingsstand; and such an order should not have been allowed, when as in thiscase the only ground on which the Municipality asked for such an orderwas shown to have failed. The prosecuting inspector admitted that theChairman had not visited the place and the fact that the Municipalauthorities never thought of applying rule 7 (a). Their view that onlysection 18 (1) (b) applied was entirely wrong. I cannot see how in thesecircumstances the demolition order can be allowed to stand. Owing tothe serious consequences of such an order such an application has to beapplied for by the Chairman under section 13 (2 It Is true that undersection 242 of Ordinance No. 6 of 1910 the Chairman is authorized todelegate any of his duties or powers to be peformed and exercised byany other officer generally authorized thereto in writing by the Chairman.Mr. Nadarajah contended that as the application for the demolition orderbore these remarks at the bottom :—
“ 1 authorize this application.
(Sgd.) H. E. Newnham,
Chairman, Municipal Council,and Mayor of Colombo."
this was a sufficient compliance of section 13 /2) of Ordinance No. 19 of1915. That may be so but even in the matter of this plaint the Magis-trate states as follows:—“ It will be noticed that the plaint in thi*s casehas been carelessly framed; the number of the case in which the accusedwas convicted and the number of the premises in question having beenomitted." These facts mentioned by the Magistrate coupled with theadmission that the Chairman had not visited the spot and the absence ofany evidence to prove that the Chairman had ever delegated his .powersunder rule 7 (a) to some one to see that there was adequate and directaccess to a public street in the case of tenements show, to my mind, thecareless manner in which this demolition order has been applied for.Such orders having serious consequences should not be asked for unlessthe Chairman or some superior officer of the Municipality to whom his
AKBAR J.—Suniaram e. KanakapuIU.
powers had been delegated is satisfied that the demolition order is justifiedin the particular circumstances of the case. What we find here is asapplication faulty in material respects signed by a person who callshimself the prosecuting surveyor of the Municipality and the applicationauthorized by the Chairman. As I have already pointed out, it neverentered the minds of the Municipal authorities that rule 7 (a) had anyapplication at all to the present case. In fact the admissions had to beextracted from the surveyor in cross-examination. I think the mandatoryorder issued in this case is not justified on the facts or the law and thatthe Magistrate has not exercised his discretion properly. I would set itaside and allow the appeal.
BARTHOLOMEUSZ v. DEEN