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LABROOY v. MUTTU KANG ANY.M. G., Colombo, 2,4:17..Municipal Councila* Amendment Ordinance, No. 1 of 1896, s. 30—Commencementof work without notice under s. 29—se. 198, 199 of Ordinance No. 7 of1887—Erection of building.
Section 176 of Ordinance No. 7 of 1887 was not intended"to apply tosubstantial buildings witn foundations.
The penal provision of section 199 of Ordinance No. 7 of 1887, asamended by section 30 of Ordinance No. 1 of 1896, applies only wherea person has, under section 198, as amended by section 29 of OrdinanceNo. 1 of 1896, given to the Chairman of the Municipal Council writtennotice of his intention to erect a building, and has received directionsfrom the Chairman with reference to such building. So that a personwho has not given written notice under section 198, and who commencesthe erection of a building without having given four days’ writtennotice of his intention to do so, as required by section 199, is not liableto prosecution under the latter section.
HIS was an appeal from a conviction under section 30 ofOrdinance No. 1 of 1896 (which amended section 199 of the
Municipal Councils’ Ordinance, 1877) for commencing to erect a
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1898. range of rooms without written notice to the Chairman of theOctober 10. Municipal Council, as required by that section.
W. Pereira, for accused, appellant.—The offence, if any, fallsunder section 176 of Ordinance No. 7 of 1887. The accused issaid to have erected a range of rooms. Section 176 deals withthe .erection of any " range or block of huts, sheds, or buildings,*’and the Chairman, with the consent of the Standing Com-mittee, should have taken steps under1 that section. [Boxser,
J.—That section appears to me to refer to temporary buildings.]The accused was certainly not liable to prosecution under section199. It is only a person who has given notice as required bysection 198 that may be prosecuted under section 199. Section198 requires notice of intention to erect a building to be given tothe Chairman. Where a building is commenced without thisnotice, the Chairman may take steps under sub-section 3, but noprosecution can take place. Where, however, notice is given underthis section, the Chairman may give certain directions, and whatsection 199 enacts is that, where the Chairman has given directions,a further notice of four days should be given before the buildingis commenced in accordance with those directions. The objectapparently is to enable the Chairman to see that his directions arenot disregarded in the initial work of the building. The omission• to give this four days’ notice is marlo an offence, but this noticebeing necessary only where directions have been given by theChairman, n person who builds without having given noticeunder the preceding section 198, and therefore without havingreceived directions from the Chairman, can commit no offenceunder section 199.
Van Lang enb erg, for respondent.—Section 199 is independentof the provisions of section 198. Whether notice under section.198 has been given or not, the commencement of the erection ofany building without four days’ notice would appear to beobnoxious to°section 199.
In this case the appellant was convicted and fined Ks. 50 onthe charge that he “ did commence to erect- a building, to wit,
a range of fourteen rooms, At No. 4, Vincent street, without a“ written notice of the intention to commence llie same having4‘ been given to the Chairman of the Municipal Council at his office“by the person by or for whom such works are intended to be“ commenced, in broach of section 30 of Ordinance No. 1 of 1896.”The Municipal Inspector in his evidence stated that, when he
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visited the spot, he found the foundation down and the wallsraised to the height of some 2 ft. when he inspected the build-ing, and he says that the accused had no permit to build, andgave no notice before he commenced the work. But anotherInspector (de Saram) says that the accused did apply for a permit,and was told that he must leave a space of 10 ft. from the side ofthe lane, which would imply that a notice of intention to buildwas given by the appellant, but whether that notice was in writingor merely oral does not appear. I gather from the language ofthe Inspector that the provisions of the Ordinance are not verystrictly followed, for 1 do not find that the Ordinance makes anyprovision for permits.
The first ground of appeal urged was that this was not a building,but that it fell under section 176 of the Municipal Councils* Ordi-nance, No. 7 of 1887. That section provides that “ it shall not“ be lawful for any person to erect any range or block of six or more
" huts or sheds or buildingswithout giving .fourteen days'
*' notice in writing to the chairman; and the chairman may, with
the consent of the standing committee, refuse to grant permission,“ or may require such huts, &c., to be built in a particular way.” Ifthe case falls under section 176, the chairman would have nopower to prohibit- the building or to impose any restrictions orconditions without the consent of the Standing Committee. Itwas not proved that the Standing Committee were consulted atall in this matter. But- in my opinion these buildings do not fallunder section 376, because the evidence is that they are substantialbuildings with foundations, and section 176 was not intended toapply to buildings of that description. It seems to me that theyfall under section 198, amended by section 29 of the AmendingOrdinance No. 1 of 3896. That section provides that “ every person“ intending to erect or re-erect any building shall give notice in
** writing of his intention to the chairman, submit a plan
“together with specifications of the works intended to be con-
“ sfcructedand shall obey all written directions given by the
“ chairman.” Sub-section 3 provides that “ if any such building
“ is begun or erected without giving noticethe chairman
“ may by notice require the building to be altered or demolished as“ he may deem necessary.” When the specifications are submit-ted to the chairman, he may give written directions with regard toa number of matters—ventilation, drainage, and the like. And thenfollows section 199, as amended by section 30 of the AmendingOrdinance, which provides that “ it shall not be lawful for any“ person to commence any such works as in the last preceding“ section are mentioneduntil four days* written notice of
October 10.Boxskh, C.J.
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1898.41 the intention to commence the same has been given to the
October 10.•* chairman,” and that ” any person commencing any works with-
ttDxsus, C.J. “ out having first given such notice as aforesaid to the chairman,
” or before the expiration of four days from the giving thereof, shall” for every such default be liable, on conviction, to a penalty not” exceeding fifty rupees.” It is difficult to see the object of thatsection. The notice is not to be acted upon for four days. That isclear; there is however nothing to prevent action being deferredfor four months or for four years, so far as I can see. But whatevermay have been the object of the section, it seems to me reason-ably clear that it refers to the commencement of works which areset out in the specification delivered under the previous section;and I think it was intended that, when you get permission fromthe chairman or directions from him, you ought not to act uponthem until you have given at least four days' notice of your inten-tion to commence to build. Sub-section 3 of the preceding sectionsays what is to be done in the case of a building begun withoutprevious notice. The chairman may order it to be pulled down,and I think the Legislature must have intended some change ofmeaning in changingtheform of wordsfrom ” if any such build-
” ing is begun orerectedwithoutgiving notice ”to
” commence any such works as in the last preceding section are
” mentioned”Iftheintentionof section 199 be that
contended for by the respondent, it would seem that; when a manhas given notice under the 1st clause of section 198 of his intentionto erect a building, he may, without incurring any penalty,commence to buildattheexpirationof four days therefrom
without waiting to see if the chairman has any direction to give.In my opinion section 199 refers to commencement of works thespecifications of which have been approved, expressly or byimplication, by the chairman, and therefore I think the appellanthas not brought himself within the purview of that section. Nointerpretation of these sections can be suggested which does notinvolve some difficulty, but I think that the one which wassuggested by Mr. Walter Pereira, and which I have adopted,involves the fewest difficulties.
LABROOY v. MUTTU KANGANY