Present: Garvin S.P.J. and Akbar J.
JANSZ v. MUNICIPAL COUNCIL OF COLOMBO.
31—D. C. Colombo, 44,050.
Housing and Town Improvement—Premises abutting on lane with street lines—-Alterations and additions to building—Owner’s right to compen-sation—Ordinance No. 19 of 1915, s. 18 (4).
The owner of certain premises which abutted upon a lane in regard towhich street lines had been laid by the Municipal Council applied forpermission to make certain alterations and additions to his premisesby: erecting pillars adjacent to and outside the existing walls and uponthem to erect a new structure. He was informed that the proposedbuilding must be set back twenty feet from the centre of the sanctionedstreet line. He then instituted the present action to recover compen-sation for the damage sustained by him by reason of the refusal to permithim to carry out his building operations.
Held, that the proposed alterations and additions did not constitutea re-erection of an existing building within the meaning of sction 18 (4)of the Housing and Town Improvement Ordinance and that the ownerwas not entitled to compensation.
Held, further, that compensation is payable under the section inrespect of damage actually sustained by acting in compliance with therequirement of the law and setting the building back.
LAINTIFF was the owner of premises bearing Nos. 13/115 and14/115, Santiago street, Kotahena, abutting upon a lane in regard
to which the Municipal Council had laid down street lines. The plaintiff,who desired to make certain alterations and additions to his premises,submitted a plan showing them to the propef authority. On receiptof this application the plaintiff was informed that his plan could not besanctioned and that the proposed building must be set back 20 feetfrom the centre of the sanctioned street line. The plaintiff theninstituted the present action claiming that he was entitled to compen-sation as he was not permitted to carry out the building operations.He claimed a sum of Rs. 2,000 which was awarded to him by theDistrict Judge.
H. V. Perera, for defendant-appellant.—The plaintiff cannot compelus to be vested with title when we cannot in fact become so vested.
As to the question of the cause of action, there is a statutory rightto compensation in certain cases. The cause of action is the non-performance of a statutory duty imposed upon the Chairman. TheChairman is only the officer appointed by the law to see that certainrequirements are carried out. The requirement of the section underconsideration is not the asking of a particular thing to be done, butrather a condition.
Compensation will be payable to plaintiff only in connection with are-erection and if there is a set-back. If the building is demoblished,plaintiff will not be entitled to compensation.
Jansz v. Municipal Council of Colombo.387
GARVIN S.P.J.—Jansz v. Municipal Council of Colombo.
The word “ thereby ” in section 18 (4) may refer to the “ setting-back ”or to the “ requirements
The Judge’s basis of assessing damages is clearly wrong.
N. E. Weerasooria, for plaintiff-respondent.—The effect of the amend-ment in the Ordinance of 1917 with regard to re-erection is to widenthe meaning of the term “ re-erection ”.
Re-erection of a part of a building is an “ alteration ”, not a** re-erection ”.
[Garvin S.P.J.—Can a building not be “ re-erected ” in part ?]
It. was to meet this difficulty that the amendment of 1917 was made.The phrase “ Chairman may require ” was intended to give a discretion.Cf. Public Health Act, 1875, where a discretion is given. “ May require ”means may require or may not require.
The value of the land must be considered as a fair assessment ofdamages.
tf. V. Perera, in reply.
January 27, 1933. Garvin S.P.J.—
This is an appeal from an award of compensation which purports tohave been made under the provisions of section 18 (4) of the Housing andTown Improvement Ordinance, No. 19 of 1915. The plaintiff is the ownerof premises bearing Nos. 13/115 and 14/115, Santiago street, Kotahena.These premises abut upon a lane which branches off Santiago street inKotahena. The plaintiff says that he desired to make certain “ addi-tions and alterations ” to his premises. He accordingly submitted aplan showing the proposed additions and alterations to the properauthority. It would seem that at this date, in pursuance of the powersvested in them, the Municipal Council had laid down street lines with aview to widening this lane and one of these lines passed through theplaintiff’s premises, so that a certain portion of it now lies between thesenew street lines. On receipt of this application the plaintiff was informedthat his plan could riot be sanctioned, and upon further inquiry, he wasinformed that the proposed building must be set back 20 feet from thecentre of the sanctioned street line. The plaintiff then brought thepresent action claiming that he was entitled to be compensated forwhat he says is the damage he has sustained. His position is thatinasmuch as he is not permitted to carry out the operations which hecontemplated and since, to comply with the requirement to get his build-ing -back to a point 20 feet from the street line is impossible for thereason that he has no room left, his premises have become useless to himfor the purpose which he contemplated when he proposed to carry outthese additions and alterations, and he claimed that the measure of theCompensation payable to him should be the full value of the premiseswith the buildings standing /thereon. He accordingly claimed a sum ofRs. 2,000 and this sum the learned District Judge has awarded him.
The Council now appeals and it is urged in support of the appeal thatthe plaintiff has wholly failed to prove that this is a case in which he isentitled to the compensation prescribed by statute. It is urged that theonly provision which applies to a case such as this is the first proviso
GARVIN S.P.J.—Jansz v. Municipal Council of Colombo.
to section 18 (4) which is in the following terms:—“Providing that inthe case of a public street, where on the re-erection of any building whichprojects over any line so defined such building is required to be set backto such line, the local authority shall make compensation to the ownerof the building for any damage he may thereby sustain”. Counsel forthe respondent admits that this is a case in which the plaintiff is merelyseeking the compensation provided by that section, and that it is notan action for damages based upon any other ground. It is essential,therefore, to the success of the plaintiff’s action that he should show thatcompensation is payable to him by law and that that compensation hasbeen withheld from him. He can only do so by proving that theoperations proposed were the “ re-erection ” of a building, that he wasrequired to set it back, and that he thereby sustained damages.
Now what the plaintiff proposed to do is set out by him in his evidencein the following words:—“I produce the actual plan I sent up with myapplication P 4. On the right hand top of P 4 will be found the sites ofthe pillars in red which I proposed to raise in concrete or in cement,and it is on these pillars that I propose to put up the upstair, the old wallsremaining while the pillars would take the weight of the upstair ”. Itwas not proposed by the plaintiff to demolish the existing building or tobuild upon it but merely to remove the roof and then upon a number ofpillars, which he proposed to erect around the building and adjacent tothe walls, to raise an upper storey. The question which arises is whetherwhat he proposed to do was to re-erect a building within the meaningof section 18. The plaintiff himself as I have said earlier describedthe operations, which he proposed to undertake as “ additions andalterations ”.
In Ordinance No. 19 of 1915 as originally drawn, building operationsare considered under three distinct heads, the erection. of buildings,the re-erection of buildings, and the alteration of buildings, and in thatOrdinance in its original form there are a number of sections in whichthese terms appear sometimes in immediate contradistinction to eachother which are helpful in arriving at a decision as to what is meant bythose terms where they have not been defined. In section 5 we have thewords “ No person shall erect or re-erect any building ”. So in section18 we have the direction that every building “ erected or re-erected shallbe erected upon the line of an existing street not less than 20 feet inwidth, &c”. What is contrasted then is the erection of a building withthe re-erection of a building. Then we have in section 6 a prohibitionagainst the making of any alteration to any building without the writtenconsent of the Chairman and a definition of the term “ alteration ”, whichtaken together indicate that the term means and includes buildingoperations which do not amount to the erection or re-erection of a building.I would specially invite attention to the section 6 (2) (k) where in the term“ alteration ” is included “ the re-erection of any part of the buildingdemolished for the purpose of such re-erection or otherwise destroyed”.It would seem, therefore, that the re-erection of the part of a buildingwas not a re-erection but was treated as an alteration to an existingbuilding. These considerations lead to the conclusion that the word“ re-erection ” in the provisions of section 18 in its original form has
GARVIN S.P.J.—Jansz v. Municipal Council of Colombo.
reference to the replacement of an existing building by another, sub-stantially similar in structure to the one which it replaced. It was uponthe re-erection of such a building that, as the Ordinance originally•stood, the question of compensation arose. But by a later Ordinance No. 32of 1917 certain additional provisions were made which have been insertedinto the section as it originally existed and those provisions are printedin italics in the edition of the Legislative Enactments issued in theyear 1923. The first feature so intrbduced was the enlargement of themeaning of the term “ re-erection ” to include operations which did notinvolve the entire replacement of a building by another, such as there-erection of any wall or part of a wall forming part of the building or ofany other support to the roof or the erection of any new wall or othersupport to the roof. It is also stated that the term “ re-erection ” includesthe restoration of any wall or any part of a wall or of any support to abuilding which has been demolished or otherwise destroyed to or withina distance of five feet from the ground, but does not include any opera-tion, which, in the opinion of the Chairman, may reasonably be considereda repair to the wall or support. It is evident that the policy of theLegislature was to prevent the circumvention of the law which prohibitedthe re-erection of a building which projects over any street line by thegradual progressive process of re-erecting parts of the building until indue course an entirely new building took the place of the old one, whichwhile it continued to occupy the site within existing street lines did notoffend against the provisions of the law. It is also to be gathered fromwhat has been said by the amending Ordinance with reference to theterm “ re-erection ” that by these lesser operations were contemplatedoperations in the nature of a partial restoration of the building.
Can the operation which the plaintiff proposed to undertake fairlybe said to be a re-erection within the contemplation of section 18 and inparticular of the proviso 1 to section 18 (4). It is not proposed to replacethe existing structure by a similar new structure, nor is it proposed toreplace or restore any part of the building. What is proposed in effectis the erection of pillars adjacent to and outside the existing walls andupon them to erect a completely hew structure. Such an operation isnot the “ re-erection ” of a building even if that term be understood andinterpreted with due regard to the enlargement of the meaning which wasbrought about by the amending Ordinance No. 32 of 1917. If this conclu-sion be right, then the plaintiff’s claim fails, for the compensation whichthe statute says shall be payable is only payable in connection with there-erection of a building. '
It was urged that what are referred to by the plaintiff as additions andalterations are rightly called additions and alterations and come speciallyunder the provisions of section 7 (2) which provides that “ where anyproposed alteration in any building involves the addition of any room orstorey to the building, the Chairman may refuse to consent to any suchalteration unless the whole building or any part thereof is brought intoconformity with this or any other. Ordinance ”.
The operations which the plaintiff proposed are either the erection pf anew building or possibly the alteration of an existing building. It isimmaterial under which head they come since in neither case does the
GARVIN S.P.J.—Jansz v. Municipal Council of Colombo.
law give the plaintiff a right to compensation where under the law he isnot permitted to carry them out. In the latter case his remedy if anywas to appeal to the Tribunal of Appeal, constituted by the Ordinance.
The point was next raised that the plaintiff had, even if this be treatedas a re-erection, failed to establish his right to compensation. He hasnot set back his building, and it is urged that the statute only providesfor the payment of compensation to an owner of a building for any damagewhich he has actually sustained by setting back his building. It wasargued on the other hand that the right to compensation arose when theChairman required the building to be set back to the street line and thisargument is based largely upon the wording of the paragraph which byOrdinance No. 32 of 1917 was inserted immediately above proviso No. 1.The paragraph is in the following terms:—“Where application is madefor sanction to re-erect any building which projects beyond any streetline so defined or to re-erect any part thereof which so projects, theChairman may require that such building shall be set back to the streetline ”. It is urged that there is a discretion vested in the Chairman torequire the building to be set back or alternatively to permit it to bere-erected between the street lines and that the right to compensationarises whenever he requires a building to be set back. But all the Legisla-ture has said is that the Chairman may require a building to be set back ;nowhere has it said that the Chairman may permit a building to beerected between street lines. It is- not easy to see what exactly was inthe mind of the draftsman when this provision was inserted. It maymerely be that inasmuch as prior to that date the term •“ re-erection ”was limited to the case of a re-erection of the entire building it wasthought necessary to say that the requirement that any such re-erectionwhere the building projected between the street lines and involved itsbeing set back applied not only to the case of a re-erection of the entirebuilding but even to the re-erection of any part which projected into thestreet line. Even if it be supposed that the Chairman has a discretionto permit the re-erection of a building so that it projected over the streetline, the intimation by the Chairman that he was not prepared to exercisethat discretion in favour of a person is not an order with which thatperson must comply. He was free to remain where he was so long as heabandoned his intention to re-erect the building. But we are concernedwith the words of the first proviso which existed in the form in which itnow exists prior to the enactment which it is argued gave the Chairmana discretion to permit the re-erection of a building within street lines.The word “ required ” as it appears in the proviso had no reference thereforeto any such supposed discretion. The words of that proviso indicate clearlythat the right to compensation comes into existence only in connectionwith the re-erection of a building in any case in which the provisions ofthe law require that in the event of such re-erection the building must beset back. The requirement is the requirement of the law and the purposeof the provision is to enable a person who has sustained damage bycomplying with the requirement of the law to obtain compensation,and the compensation contemplated is compensation for the damagewhich a person actually sustains by acting in compliance with therequirement of the law and setting his building back. This it seems to
Sobita Terunanse v. Samapala Terunanse.
me is the meaning which must be attached to this proviso if effect is to begiven the word “ thereby ”. It is inconceivable that the Legislatureintended that compensation should be paid to the owner of a buildingin any case in which he chose to say that he desired or proposed tore-erect a building which the law says he cannot re-erect except in con-formity with the provisions of section 18 (1). To interpret this sectionas giving a right to compensation in any case in which a person assertsthat he wishes to re-erect a building would be to place the local authorityin the position of having to pay compensation to any and every personwho may choose to say that he wishes to re-erect an existing building.
Lastly, it should be noted that the compensation which is payableis the compensation “ for the damage he may thereby sustain ”. Theplaintiff’s claim is based as I have already said upon the assumptionthat notwithstanding that the buildings of which he is the owner arestill standing and that he is still enjoying the rents and profits derivedfrom them, he is entitled to be compensated upon the basis that thewhole of these premises have no further value to him. The DistrictJudge, on the other hand, appears to have assessed the damages, thoughhe arrived at exactly the same figure, upon the basis of the profits thathe might have made if he was permitted to carry out the operationswhich he proposed to do and not upon the ground that he has sustainedany damage by being compelled to set back the building on rererection.In the result the plaintiff has been awarded a sum which upon his ownshowing is equivalent to the highest offer which he has received from aperson who proposed to purchase the land and the building as well.This is not, in my judgment, the correct basis for the assessment ofdamages but it is hardly necessary to say more upon this point for thereason that the plaintiff has in my opinion wholly failed to show thatthis is the case of the re-erection of a building or that he has sustainedany such damage as is contemplated by the Ordinance.
I think therefore that this appeal must be allowed and the plaintiff’saction dismissed with costs both here and below.
Akbar J.—I agree.
JANSZ v. MUNICIPAL COUNCIL OF COLOMBO