( 385 )
Present: De Sampayo A.J.
LA BROOT v. RAMASAMY CHETTY et al.
452-454—M. C. Colombo, 8,487. .
Suffering premises to be used for human habitation—Lease by adminis-trator—Is heir of estate liablei—“ Suffering ” defined.
Anheir of ani estatewhoseadministrator hadleased aproperty
cannot be convicted under rule 8(2) of chapter X^CII. of the
by-laws of the Municipal Council of Colombo with suffering thehouse to be used for human habitation.
“ Suffering " a thing to be done connotes the right or power toprevent it.
Anowner of propertywhichislegally leasedto a third party,
withexclusive right ofpossession,cannot of his own forceprevent,
whilethe lease subsists,the useofthe property by the lesseeor any
person tinder him.
HE faote are fully set out in the judgment.
Wadsworth (with him Retnam), for the accused, appellants.
Hayley, for the respondent.
Cur. adv. vult.
July 9, 1912. De Sampayo A.J.—
The appellants, who are the first, 'second, and fourth accused,have been convicted of the offence of having, in disregard of an ordermade by the Municipal Magistrate, continued to use certain tene-ments, or suffer the same to be used, for human habitation withouta certificate from the Chairman of the Municipal Council, or writtenorder from the said Magistrate withdrawing the prohibition, inbreach of rule 8 (2) of chapter XXII. of the by-laws of the MunicipalCouncil. It appears .that the premises, in which the tenements aresituated belong to the estate of a person now deceased. The firstand third accused are two of the heirs of the intestate, and thesecond accused is described in .the evidence for the prosecution as“ guardian ad litem ” of another heir. The third accused has alsobeen appointed administrator of the estate; and the fourth accusedis the lessee of the premises under the administrator. At theinstance of the Chairman of the Municipal Council, who consideredthe tenements in question to be unfit, for human habitation, theMunicipal Magistrate on July 10, 1911, made an order, under rule8 (1) of chapter XXII. of the by-laws, prohibiting the use of. the saidtenements for human habitation from September 1, 1911. The tene-ments are in the occupation of tenants under the fourth accused, who
ISJ. ». A 99413 (8/SO)
( 386 )
La Brooy v.RamasamyChetty
is .the lessee of the entire premises. The causes rendering them unfitfor habitation were the absence of windows and smoke vents, the low-ness of the roofs, and the existence of certain walls which preventedproper ventilation. The operation of the prohibition was to datefrom September 1, in order that the necessary alterations mightin the meantime be effected. This not having been done, theseaccused were prosecuted under, rule 8 (2) in the case No. 5,158 ofthe Municipal Magistrate’s Court, and were convicted and fined onNovember 3, 1011. It appears that the fourth accused petitionedthe Chairman and obtained a month’s extention of time to effectrepairs. He commenced the work by breaking down the walls, butthe third accused stopped him from proceeding further and under-took to do the work himself but did nothing. Accordingly, theaccused have been prosecuted again in thi's case, the charge beinglaid as of April, 1912. The lease in favour of the fourth accused isstill subsisting, and the third accused as administrator has continuedto receive the ren.ts up to date. I shall first deal with the case of thethird and fourth accused. The third accused pleaded guilty to thecharge, alleging in mitigation of sentence that he could not spendmoney on the repairs without an order of Court in the testamentarycase, and .that he subsequently obtained such an order and wasdiligently engaged in affecting the repairs. The fourth accusedpleads in excuse the interference on the third accused’s part withhis attempt to do the necessary work. The fourth accused is lessee,and has possession and control of the premises, and the tenants arehis and pay him rent. He continues to use the tenements for humanhabitation, or suffers the same to be used for that purpose, withinthe meaning of the by-law. in question. The interference of "thethird accused does not, in my opinion, exempt him from liability,though it may possibly give him a claim against the third accused;and I think he was rightly convicted.
The case of the first and second accused is quite different.The second accused' is, as I said, the guardian ad litem of anheir of the estate, apparently representing the minor in somepast or pending litigation, but how a guardian ad litem as suchcan have anything to do with the possession or use of the property1 fail to understand. The situation of the first accused as heirpending the administration of the estate, is equally- distinguishablefrom .that of the third accused. I.t is not said .that the firstand second accused joined in the lease to the fourth accused, oreven that they receive any rent from the fourth accused. On thecontrary, i.t is the .third accused that receives all the rent and holdsthe property, apparently until the distribution of the estate amongthe heirs. I do not lose sight of the fact that the first and secondaccused were also convicted in the preyious prosecution, but thatdoes not alter .their legal position as regards the present charge.The question, therefore, is whether they can be said to “ use or suffer
( 387 )
to be used * ’ the premises in question within the meaning of rule 8. (2).
I do not think they can. In answer to questions from the Magistrate, Ds Sampayothe first accused said that he was not prepared to forego the rent dueby the lessee, and the second accused said he had given no indemnity LaBrooy v.to the administrator against any loss the estate might incur by theejectment of the tenants, and this was apparently considered by theMagistrate sufficient to make them responsible for the continuedoccupation of the premises by the lessee’s tenants. The first andsecond accused may or may not be right in their claim to a share ofthe rent of this property, even if the tenements are rendered vacantby ejectment of the tenants, but such claim has no bearing on thequestion of their liability. In Blacker v. Saibo/ which was a prose-cution under section 1, sub-section (1), of Ordinance No. 15 of 1862against the owner of premises for suffering the same to be in a filthycondition, this Court doubted whether a lessor on a notarial leasewould be liable, unless the terms of the lease gave him power to takethe necessary steps to put the premises in good order. The positionof a mere heir of an estate whose administrator leases the propertyis much more secure. “ Suffering ” a thing to be done connotes theright or power to prevent it, and an owner of property which islegally leased to a third party, with exclusive right of possession,cannot of his own force prevent, while the lease subsists, the useof the property by the lessee or by any person under him. Thisprinciple has been recognized in cases under similar provisions inEnglish Statutes. In B. v. Staines Local Board,2 it was heldthat a Local Board which only permitted certain sewers to beused by inhabitants who had acquired a prescriptive right touse them did not “ cause or suffer ” sewage to flow into the Thameswithin the meaning of 41 The Thames Navigation Act, 1866,'* andcould not be convicted, of a misdemeanour under that Act. Field J.observing that “ a man cannot be said to suffer another person to doa thing which he has no right to prevent.” Again, in Lea Conserv-ancy Board v. The Tottenham Local Board,2 the facts were that theLocal Board, together with another local authority, had appointeda joint committee, to which the exclusive control and managementof the sewage and sewerage works were given, and the sewage havingbeen-allowed to flow into an adjpining river, the Conservancy Boardserved a notice upon the Local Board to discontinue the nuisance,and upon failure to comply with the notice instituted proceedingsbefore the Magistrate under ” The Lea Conservancy Act, 1868,”sections 92 and 93, to render the Local Board liable to the penaltyprovided by the Act; and it was there held that the Local Board werenot liable, as. they had ceased to have control over sewers after theappointment of the joint committee, and so could not'have " caused ”or 44 suffered ” the overflow into the river.
■i (1905) 2 Bal. 13.2 (1889) 60 L. T. 261.
3 (1891) 64 L. T. 198.
( 886 )
1912. in this case the first and second accused, as X have said, haveDb Smpivn not been shown’ even to be lessors of the fourth accused, who is inA.J. actual possession of the property by virtue of the lease. In myLaSrooy v. opinion they are not liable under the by-law in question, and IBamaaamy get aside their conviction. As regards the fourth accused, thereOhetty remains to be considered the question of sentence. The Magistratefined each of the accused Rs. 150. The penalty provided byby-law 2 of chapter XXV., as amended by Proclamation ofSeptember 13, 1910, for breaches of the by-laws, is a fine notexceeding Rs. 50, and in case of continuing breach a further fine notexceeding Rs. 25 a day for each day such breach is continued. Itwas contended that under this the Magistrate could only impose afine of Rs. 50, and order a further fine of Rs. 25 to be paid for thedays during which the breach may be continued after the conviction;but that he could not award a sum for the number of days passedbefore the conviction. I cannot uphold this contention. In theresult I uphold the conviction and sentence of the fourth accused.As above stated, the third accused was convicted on his own plea,but he has made an application in revision for mitigation of thesentence, and his counsel also relied on the same argument as tothe construction of the above by-law No. 2. For the reason alreadygiven the application is disallowed.
First and second accused acquitted.
LA BROOY v. RAMASAMY CHETTY et al