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Present: De Sampayo J.ANTHONISZ v. FERNANDO.
715—M. 0. GaUe, 10,149.
Ordinance No. 19 of 1916,s.13 (6)and (c)—Alteration ofbuildings—
Deviation from plan—Mandatory order to demolish buildings.
Accused whohad obtained permissionfromtheChairman of
the Municipal Counciltomakealterationsto buildingsaccording
to a certain plan was prosecuted under section 18 (6) and (e) ofOrdinance No. 19 of 1916 for deviating from the said plan.The
Magistrate convicted the accused, and further ordered the accusedto demolish certain parts of the buildings.
Held, that the mandator; order was irregular in the circumstances.The applicationfor the mandator; ordershouldbemade bythe
The proceedings for thispurposeshould betaken afterthe con-
viction and not as part of the proseoution for the offence.
When an applicationismade,the part;concernedshould be
called upon to show cause against it, and an; order should bebased on a judicial finding as to the necessit; or expedienc; ofdemolition. Such demolition is not a matter of course, but theCourt has a discretion to exercise in regard to it.
rJ"lHE facts appear from the judgment.
Bawa, K.G. (with him Keuneman), for acoused, appellant.
A. St. V. Jayawardene, for complainant, respondent.
October 24, 1919. De Sahpayo J.—
The accused is owner of premises Nos. 214 and 215 in ChinaGarden, Galle. He obtained permission from the Chairman of theMunicipal Council to make alterations to the buildings according toa certain plan. He has been prosecuted under section 13 (i>) and (c)of the Ordinance No. 19 of 1915 for deviating from the said plan inmaking the alterations. When the plan approved by the Chairmanand the plan of the buildings as altered are compared, there iscertainly a more or less substantial deviation. The conviction of theaccused is, I think, right, but the Magistrate, after imposing a fin*on the accused for the offence, ordered the acoused to demolishcertain parts of the buildings, and to bring the outhouses indicatedin the order into conformity with the approved plan. This orderappears to me to be irregular. Section 13 (2) of the Ordinance
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provides for the making of mandatory orders for the demolitionof unauthorized buildings, but it requires an application for thatpurpose to be made by the Chairman. In this case no applicationwas made so far as the record shows. Moreover, it is dear fromthe language of the section that the proceedings should be takenafter the conviction of an accused person, and not as part of theprosecution for the offence. When an application is made, theparty concerned should be called upon to show cause against it,and any order should be based on a judicial finding as to the necessityor expediency of demolition. Such demolition is not a matter ofcourse, but the Court has a discretion to exercise in regard to it.The principle to be observed may be gathered from such causesas Hopkins v. Smethwick 1 and Masters v. Pontypool.9 The looalcase 707, M. C. Colombo, 1,304, S. C. Min. October 15, 1919,is an authority on this subject. Mr. Jayawardene for the com-plainant fairly stated that he was not able to support the proceedings,and was good enough to refer me to the Indian case Churn LaiDutt v. Corporation of Calcutta,® which is quite in point. In thepresent case, not only had the accused no opportunity of showingcause, but the entire proceedings were less than summary, for therewas no evidence taken at all, and all that the Magistrate did wasto inspect the premises and compare the two plans. It is impossibleto say that the Magistrate could in these circumstances haveexercised a proper judicial discreation.
The conviction and sentence of fine are affirmed, but the manda-tory order is set aside.
ANTHONISZ v. FERNANDO