WIJEYEWARDENE J.—Ahamadu Levvai v. Sylvester.
1947Present : Wijeyewardene J.
AHAMADU LEWAI, Appellant, and SYLVESTER, Respondent.
S. G. 772—M. G. Trincomalee, 7,585.
Sousing and Town Improvement Ordinance (Cap 199), ss. 3, 5—Erection of building—Contravention of Ordinance—Operation of Ordinance—Burden of proof.
Where a person is charged with building in contravention of the provisionsof the Housing and Town Improvement Ordinance the burden is on theprosecution to show that the area in question is one to which the provisionsof the Ordinance apply.
Appeal from a judgment of the Magistrate, Trincomalee.
M.M. Kumarakulasingham (with him M. P. Spencer), for the accused,appellant.
C. F. Jayaratne, C.C., for the Crown.
Cur. adv. wit.
October 28, 1947. Wijeyewabdenb J.—
The proceedings in this case were instituted on a written report by“ The Board of Health, Harbour Villages and Kinniya, Trincomalee, byits Sanitary Assistant, G. Sylvester ”. The plaint bears the endorsementApproved ” above the signature of some person described as “ Chair-man, Board of Health, Harbour Villages and Kinniya ”. The report• states that the accused, “ a resident of Vellaimanal, Trincomalee ’•erected “ a building boutique (sic) without the approval of the Chairman,Board of Health, Harbour Villages and Kinniya ” in breach of section 5-of the Housing and Town Improvement Ordinance and thereby
WUEYEWARDENE J.—Ahaniadu Lewai v. Sylvester.
committed an offence punishable under section 13 of the Ordinance. The-report which has been “ approved ” apparently by a responsible officialdoes not state where the “ building boutique ” has been erected. TheMagistrate accepted this report and without recording any evidenceissued summons to the effect that he had received a complaint that theaccused had erected at Trincomalee a building in breach of section 5 of theOrdinance. It is difficult to understand whence the Magistrate got theinformation that the building in question was erected at Trincomalee.When the accused appeared on summons, the Magistrate read out thecharge from the summons. The accused, who was undefended, did notcall any evidence. At the close of the case for the prosecution theMagistrate convicted the accused and sentenced him to pay a fine ofRs. 35.
Section 3 of the Housing and Town Improvement Ordinance, asamended by Ordinance No. 16 of 1947, and section 5 of the same Ordinance-read as follows :—
3.“ This Ordinance shall apply :—
within the administration limits of a Municipal Council,
Urban Council, Town Council, Local Board or Sanitary
within any further limits in which it shall be declared to be
in force by resolution of the State Council.”
5.“ No person shall erect or re-erect any building within the limits
administered by a local authority, except in accordance withplans, drawings, and specifications approved in writing by theChairman.”'
By section 2 of the Ordinance, as amended by Ordinance No. 24 of 1946“ Chairman ” in section 5 for the purposes of this case would be theChairman of the Urban Council, Trincomalee, if the building is withinthe Urban Council area, or the Assistant Government Agent, Trincomalee,if the building is outside such limits. It was admitted at the argumentthat there was an Urban Council in Trincomalee.
Now the evidence in the case does not show whether the building waserected within or outside the Urban Council area of Trincomalee. Ifthe building is within the Urban Council area, the “ Chairman ” whosewritten approval the accused had to get was the Chairman, Urban Council,Trincomalee, and not the Chairman, Board of Health. If the buildingis in a place outside the limits of the Urban Council, then the Ordinancewould not appty to the case unless the Ordinance had been declared by aresolution of the State Council to be in force in such a place. There isno reference to such a resolution throughout the proceedings in the case,nor is there any reference to any Gazette where such a resolution has beenpublished. At the argument before me the Crown Counsel produced theGovernment Gazette of March 29, 1946, publishing a resolution of theState Council under section 3 of the Ordinance in respect of a number ofvillages including Vellaimanal. In the first place there is no evidence toshow that the building was erected in the village of Vellaimanal whichwas alleged in the written report to be the village where the accusedresided. My attention was not drawn to this fact at the time the case
Caonji Moos a <fc Co. v. The City Cargo Boat Co.
■was argued before me. The Crown Counsel argued on the footing thatthe building was erected in the village of Vellaimanal. He contendedthat it was not necessary for the prosecution to prove at the trial that theOrdinance had been brought into operation within any specified area,as the Ordinance became operative in such area the moment the StateCouncil passed the necessary resolution. He invited my attention toJayakodi v. Paul Silva l, which he submitted supported his argument. Ifind some difficulty in following that argument. Take a case where aGovernment Agent prosecutes a person for erecting a building withouthis approval in an area not coming under section 3 (a) of the Ordinance.Suppose the Government Agent leads evidence to show only (1) that theaccused had erected a building in such an area and (2) that he did notgive his approval in writing. Could the Magistrate convict the accusedon that evidence ? If he did so, would he not run the risk of convictingan accused who had erected a building in an area where the Ordinancewas not in force ? Could it be said that the burden rests on the accusedin such a case to prove that the particular area had not been broughtunder the Ordinance by a resolution of the State Council ? How is he toprove the absence of such a resolution ? It is, however, not necessary togive a decision on this point as there is another difficulty in the way of theprosecution even if it is assumed that the area has been brought under theOrdinance, as in that case the authority from whom the accused had toget the written approval was the Assistant Government Agent, and notthe Chairman of the Board of Health as set out in the charge read out tothe accused. The Crown Counsel was not in a position to show how theChairman of a Board of Health appointed presumably under section 2 ofthe Contagious Diseases Ordinance could claim to be the Chairman of alocal authoiity within the meaning of section 5 of the Housing and TownImprovement Ordinance.
I allow the appeal and acquit the accused.