v.THE MUNICIPAL ENGINEER. COLOMBO,AND WICKREMARATNE
COURT OF APPEAL.
W. N. D. PERERA, J..
C. A. APPLICATION NO. 883/89.
M,C, MALIGAKANDA CASE NO. 1753/M.
September 06. 1990.
Housing and Town Improvement Ordinance – Demolition order against occupier forerecting unauthorised structure – Status of person obtaining permission to intervene.
The accused petitioner was charged with committing the offence of constructing anunauthorised structure at 377, Ferguson Road, Mattakkuliya under the Housing and TownImprovement Ordinance. He was convicted, his appeal to the Supreme Court wasdismissed'on 24.05.1978. On 08.03.82 the Magistrate made order directing the.demolition of the unauthorised structure. As the Municipal Council had failed to carryoutthis order of 08.03.82 the owner of the above premises on 25.05.88. intervened andmade an application to the Magistrate's Court to execute the order made on 08.03.82.On 01.11.89 after hearing the petitioner the Magistrate made order directing the fiscal tocarryout the order made on 0803.82. The fiscal on 15 11.89 carried out the order andhanded possession to the Intervenient. the owner of the premises.
The petitioner sought a revision of the Magistrate Court Order dated 01.11.89. Thepetitioner's submission was that the Intervenient had no status to participation in theseproceedings..
The Intervenient had a status to participate in the proceedings.
Cases referred to :
Appuhamy v. Weeratunga 23 NLR 467
APPLICATION for revision of the order of the Magistrate of Maligakanda.
S. Gunasekera for the accused petitioner.
Channa Nilanduwa for the complainant-respondentJ. Joseph for intervenient-respondent.
Cur. adv. vult.
October 10. 1990, •
W. N. D. PERERA, J.
The accused-petitioner, K. A. Balakrishnan has made this application torevise the order of the Magistrate, Maligakanda dated 1.11.89 in M. C.Maligakanda Case No. 1753/M whereby he has made a mandatoryorder to the Fiscal to remove an unauthorised structure.'
In his petition the petitioner avers that he was noticed to appearbefore the Magistrate's Court of Maligakanda on 21.9.88 by a' summons in Case No. 1753/M and when he appeared he was asked toenter into a bail bond for Rs. 5000. He was informed after theexamination of the record room that the entire record in the above casewas lost and an Attorney-at-law had made an application to reconstructthe record-He further states that for filling in the gaps in the said record,the Magistrate had called the petitioner to the witness box andquestioned him. He was asked whether he had pleaded guilty in thatcase and he had denied it. He further states that the Magistrate hadadopted a procedure to build up a record by informing him that, if hedenied the suggestions made to him, he would be remanded. At the end. of this questioning, the petitioner states that the Magistrate had madethe order complained of.
Sri Lanka Law Reports
The intervenient respondent, J. A. Wickremeratne in his statement ofobjections states that he is the owner of the land bearing No. 377 andthat he complained to the Colombo Municipality in 1974 that anunauthorised building had been constructed on it. On behalf of theColombo Municipal Council, an action bearing No. .1753/M had beenfiled under Section 13(1) of the Housing and Town ImprovementOrdinance against the petitioner who was found guilty, fined Rs. 40 andthe unauthorised structure was ordered to be demolished. Against thisorder the petitioner appealed to the Supreme Court in Appeal No. •2/1977 which was first dismissed on 2.11.77 for non appearance and-finally dismissed on 24. 5. 78.
The intervenient respondent further states that an officer on behalf of •the Municipal Council made an application to the Magistrate's Court toexecute the said order in case No. 1753/M and the petitioner kept,evading the process of court and after warrant was issued against himhe appeared in court, and undertook to demolish the unauthorisedstructure at 377, Ferguson Road, Mattakkuliya on 25.6.80. As thestructure had not been demolished, the Magistrate had ordered it to.bedemolished on 8. 3. 82 as the petitioner had not done so.
As the order of the-Magistrate of 8.3.82 had not been carried out bythe Municipal Council the intervenient. respondent had, through hisAttorney-at-law moved the Magistrate's Court on 25.5.88 to executethe said order. As the case record in the said case was not available, theMagistrate had issued notice on the petitioner. The complainantrespondent on behalf of the Municipal Council had tendered a photostatcopy of the proceedings in the saidcase and of the order of 8.3.82-. The.petitioner had appeared in court on 21.9.88 and had been questionedby Court and the petitioner had also moved to show cause against thecharge of constructing an unauthorised structure. After hearing thepetitioner the Magistrate had made order on 1.11.89 directing theFiscal to carry out the order made on 8.3.82.
The intervenient respondent states further that the order of theMagistrate dated 8.3.82, directing the demolition of the unauthorisedstructure was carried out*by the fiscal on 15.11.89. This is borne out bydocument X 3 which is a certified copy of the proceedings in this case.
The petitioner who has filed his objections to the application of theintervenient respondent to have- himself added as party to thisapplication on' 20.2.90 has not traversed any of the averments of fact inthe petition of the intervenient respondent. It was submitted on his'behalf that the intervenient respondent had no status to intervene in thisapplication aslhe proceedings in question had been instituted under theHousing and Town Improvement Ordinance. It was also the submissionof the petitioner that as the matter is coming up now in revision in thiscourt, no one except the parties who were in the original court canparticipate in these proceedings.
On a perusal of the documents X 1 and X 2 (petition of appeal andwritten submissions filed by the petitioner in S. C. Appeal No. 2/77) it isquite clear that the petitioner was convicted under the provisions of theHousing and Town Improvement Ordinance, with the offence^ ofconstructing an unauthorised structure at 377, Ferguson Road.Mattakkuliya by the Magistrate's Court of Maligakanda on 7.1.76. Hehad been ordered to demolish the said structure but had failed to do soeven after his appeal was dismissed. None of these facts have beencontroverted or even been referred to by the petitioner.
In respect of the submission made on behalf of the petitioner that theintervenient respondent had no status to participate in theseproceedings, counsel for the intervenient respondent cited the case ofAppuhamy v. Weeratunga (1) where this right has been recognised.
The Magistrate has made the order complained of on 8.3.90 after •satisfying himself pn the material placed before him by the complainantrespondent that the order of 7.1:76 had not been complied with. Thepetitioner did not, in these proceedings, .attempt to show that he wasnot bound to demolish the unauthorised structure put up in thesepremises. In fact, the proceedings X 3 show that the structure hasalready been demolished by the fiscal and possession handed over tothe complainant respondent on 15.11.89.
In the circumstances I see no reason to interfere with the order of theMagistrate, Maligakanda made on 8.3.90. The. application .of thepetitioner is accordingly dismissed. The petitioner shall pay Rs> 315 ascosts to each of the respondents to this-application.
BALAKRISHNANA v. THE MUNICIPAL ENGINEER, COLOMBO, AND WICKREMARATNE