Thalvira v. Urban Council, Hambantota
I960Present: Basnayake, C.J.
THAHIRA, Appellant, and URBAN COUNCIL, HAMBANTOTA,
S. C. 523—M. C. Hambantota, 34,348Housing and Town Improvement Ordinance—“ Closing order ”—Sections 76. (1)and SI (<3).
A valid “ closing order ” in terms of section 76 (1) of the Housing and TownImprovement Ordinance is a pro-roquisite to all subsequent penal stops takenunder the statute.
BASNAYAKE, C.J.—Thahira v. Urban Council, HambarUota
_/.PPEAL< from an order of the Magistrate’s Court, Hambantota.Stanley Perera, for Accused-Appellant.
M. M. Kvrnarakulasingham, for Complainant-Respondent.
December S, 19G0. Basnayake, C.J.—
The appellant has beeen convicted of an an offence punishable undersection 81(3) of the Housing and Town Improvement Ordinance ondsentenced to pay a fine of Rs. 40 while the 2nd and 3rd accused whoare her children have been warned and discharged. The penal provisionunder which they have been convicted reads as follows :—
“Any person inhabiting a dwelling-house in.respect of which aclosing order has been made who, after the expiration of the timefixed in the notice referred to in section 76 (2), shall continue to inhabitsuch dwelling-house, and any person who after a dwelling-house hasbeen vacated under a closing order while such closing order continuesoperative shall inhabit such dwelling-house, shall be guilty of anoffence, and liable to a fine of five rupees for each day or part of aday on which the offence is committed or continues.”
It is submitted that no closing order as provided for in section 76 (1)of the Housing and Town Improvement Ordinance has been made,and that therefore there can be no conviction under the provision abovequoted. That section reads—
“ (1) If on the representation of the Health Officer of the localauthority or other information given any dwelling-house used forhuman habitation appears to the Chairman to be unfit for human habita-tion, it shall be his duty to apply.to the Magistrate to make a manda-tory order prohibiting the use for human habitation of such dwelling-house (herein referred to as a “ closing order ”) until such dwelling-house is rendered fit for that purpose ; and the Magistrate, uponserving a notice upon the owner of such dwelling-house, shall havepower to make such order accordingly.
(2) Where a closing order has been made, the Chairman shall affixin a conspicuous place in or on the dwelling-house a notice callingupon one or more tenants occupying such dwelling-house to quit thepremises on or before the expiration of the calendar month nextsucceeding the date of the notice.”
212 BASNAYAKE, C.J.—Thahira v. Urban Council, Hambantota
I shall now examine learned counsel’s submission. In M. C., Hamban-tota, Case No. 33,582 the Chairman of the Urban Counoil represented .as follows:—
“ Whereas the dwelling-house belonging to Mr. Deen Salahudeenoccupied by Mrs. Latiff Thahira bearing assessment No. 9 situatedat May Street, Hambantota, within the limits of the Urban Councilof Hambantota, is reported by the Medical Officer of Health, Hamban-tota, after personal inspection by him, to be unfit for human habitation,I, Issadeen Deen Usuph, Chairman of the Hambantota Urban Council,,having satisfied myself that the said dwelling-house is unfit for humanhabitation, do hereby apply under section 76 (1) of the Housing andTown Improvement Ordinance (Chapter .199) to the Magistrate,Hambantota, for a mandatory order prohibiting the use for humanhabitation of the dwelling-house until it is rendered fit for that purpose.
The report of the Medical Officer of Health, Hambantota, relatingto the aforesaid dwelling-house is annexed hereto.”
The documents produced in that case do not include the report ofthe Medical Officer of Health. Upon this application notice was servedon Mr. Deen Salahudeen, the owner of the house, as required by section76 (1). He stated to court that he had no cause to show and the courtthereupon made the folloiving order on 23rd June, 1959 :—
“ He has no cause to show. Issue mandatory order prohibitingthe use for human habitation of the said dwelling-house.”
The “ mandatory order ” was issued in the following form on 30thJune under the hand of the Magistrate :—
*' Whereas Mr. Deen Salahudeen of May Street, Hambantota, was-summoned on 23.6.59 to show cause why a closing order should notbe issued in respect of the building bearing assessment No. 9 situatedin May Street, Hambantota.
And whereas an application has been made by the Chairman ofthe Urban Council, Hambantota, for a closing order against you thesaid ownci of the building No. 9 situated at Hambantota under section76 (1) of the Housing and Town Improvement Ordinance (Cap. 199).
J. G. L. Swaiis, Magistrate, Hambantota, do hereby by virtueof the powers vested in me by the last named sub-section order youto close the building in question on or before 30th July, 1959.”
This “ mandatory order ” does not satisfy the requirements of thestatute. The section quoted by me requires the Magistrate to make an.order “ prohibiting the use for human habitation ” of the dwelling-house in respect of which an application is made if such dwelling-houseis rendered unfit for that purpose.
BASNAYAKE, C.J.—Tkahira «. Urban Council, Hambantota
A further order in the following form appears to have been issued underthe hand of the Magistrate on 28th October, 1959 :—
“ You as Chairman, Urban Council, Hambantota, made an applica-tion to this Court in the above case, for a Mandatory Order prohibitingthe use of dwelling-house bearing assessment No. 9, May Street,Hambantota, for human habitation under section 76 (1) of the Housingand Town Improvement Ordinance (Cap. 199) of the LegislativeEnactments of Ceylon.
And whereas this Court summoned the owner of the dwelling-house in question Mr. Deen Salahudeen to show cause if any whysuch Mandatory Order should not be issued by this Court.
The said Mr. Deen Salahudeen did appear before this Court on suchsummons on 23.6.59 and failed to show cause why such MandatoryOrder should not be issued.
J. G. L. Swaris, Magistrate, Hambantota, by virtue of the powersvested in me by the Housing and Town Improvement Ordinance dohereby order you to close up the above premises in accordance withlaw.”
Both orders are addressed to the Chairman. Neither order is warrantedby the Housing and Town Improvement Ordinance. The Magistrate isempowered only to make order prohibiting the use for human habitationof a dwelling-house in respect of which an application is made on theground that such dwelling-house is unfit for human habitation. Uponthe orders issued by the Magistrate and quoted above by me, a noticeappears to have been affixed on the front door of the premises. Thatnotice is not before me nor is there a copy of it in the record. Withoutthe notice being produced in evidence it is not possible to decide whetherthe appellant failed to comply with it. The complaint now is that theaccused did not vacate the premises in terms of a notice which is notbefore the Court. Apart from the failure of the prosecution to provethe notice which it is alleged the appellant failed to comply with, thesubsequent steps taken by the local authority were of no effect in law asthere was no proper ** closing order ”.
Learned counsel for the respondent submits that the order made bythe Magistrate is a mandatory order prohibiting the accused from usingthe dwelling-house for human habitation and that it satisfies the require-ments of seotion 76 (1) of the Housing and Town Improvement Ordinance.
I am unable to agree with that contention. The provisions of thestatute must be strictly observed if the penal consequences of disobedi-ence to an order made thereunder are to be brought home to those whodisobey it. A valid “ closing order ” in terms of the statute is a pre-requisite to all subsequent steps under the statute.
I therefore quash the conviction and acquit the accused.
THAHIRA, Appellant, and URBAN COUNCIL, HAMBANTOTA, Respondent