064-NLR-NLR-V-37-BARTHOLOMEUSZ-v.-ISMAIL.pdf
Bartholometxsz v. Ismail.
301
1935Present: Koch J.
BARTHOLOMEUSZ v. ISMAIL.
181—M. C. Colombo, 3,779
Sunshade—Erection over a street—Lateral projection—Continuing offence—
Limitation—Municipal Councils Ordinance, No. 6 of 1910, ss. 155, 156,
157, and 236.
Where the accused erected a balcony and a sunshade as a lateralprojection, which did not start from a foundation in a street,—
Held, that he had offended against the provisions of section 156 of theMunicipal Councils Ordinance, No. 6 of 1910.
The offence created by the section is a continuing one and limitationwill not run against it so long as the projection remains.
Sections 156 and 157 of the Ordinance contemplate totally differentproceedings.
PPEAL from a conviction by the Municipal Magistrate of Colombo.
H. V. Perera, for accused, appellant.
A. Rajapakse, for complainant, respondent.
37/23
302
KOCH J.—Bartholomeusz v. Ismail.
October 10, 1935. Koch J.—
The appellant under the plaint filed in the case was charged “ withhaving caused on or about March 6, 1934, a balcony and a sunshade tobe placed over the footway opposite premises Nos. 71-73, Norris road,Pettah, in breach of section 156 of Ordinance No. 6 of 1910 ”. Theprosecution was entered on October 19, 1934. A preliminary objectionwas raised by the appellant’s counsel in the lower Court that the offencewas prescribed under section 236 of the Ordinance. This section requiresthe complaint in respect of an offence committed in breach of theOrdinance to be made within three months next after the commission ofsuch offence. The complainant’s counsel thereupon moved to amendthe plaint by substituting the words “ August 10, 1934 ” for the words“ March 6, 1934 ”. The accused’s counsel, Mr. Jansz, had no objectionto the amendment but reserved his right to contend .that the offence, ifany, was committed on March 6, and not at a later date. The learnedMagistrate allowed the amendment. Mr. Jansz acted reasonably in notobjecting to the alteration of the date, and the Magistrate was right inallowing the application. Whether the offence was in point of fact com-mitted on March 6, or on August 10, I shall deal with later, as there areother points raised by the appellant’s counsel in appeal which I wouldwish to decide first.
The first of these points is that assuming the facts to be correct, nooffence was committed under section 156, and that the Chairman, if hefelt that the rights of the Municipality had been interfered with, shouldhave proceeded under the section next following—section 157—andshould have noticed the appellant in writing to remove the projectionwithin fourteen days, failing which the party noticed would have beenliable to a fine of Rs. 150 and the Chairman could himself cause theprojection to be removed and recover the expenses of the removal fromsuch party.
Mr. H. V. Perera’s contention was briefly that section 156 referred toan obstruction or encroachment which was caused as the result of avertical erection or building from the base of a street upwards, but thathere we are concerned with a sunshade and balcony that were the resultof a lateral projection dver and above a street and did not start from afoundation in a street. I do not agree. I am of opinion that section156 contemplates a projection such as is complained of in this case. Thesection inter alia speaks of “ setting up any bracket, sunshade, or otherobstruction or encroachment ”. A bracket or sunshade would ordinarilybe considered a lateral projection built into a vertical wall, but thematter is concluded by the amendment to this section, which is found insection 7 of Ordinance No. 12 of 1932. This amendment consists inadding to section 156 the words “ or from allowing the putting up tempo-rarily of sunshades and any other similar projections “ Sunshades ”therefore are to be considered projections, and projections are acts oflateral structures. I therefore hold that section 156 applies.
The next point is that the Chairman after March 6, 1934, entered intonegotiations with the appellant with a view to permitting the alleged
KOCH J.—Bartholomeusz v. Ismail.
303
encroachments to remain if adequate fees were duly paid, a proceedingsanctioned by a Municipal by-law. It is argued that this amounted toan election on his part to act under section 157, and the election oncemade does not entitle the Chairman to take proceedings under the earliersection. I see nothing in this argument.
The third point, which is really subsidiary to the last one, is that theappellant was willing as the result of these negotiations to pay fees due forthe encroachments ; that although the charge is in respect of a sunshadeand a balcony the latter did not occupy a larger air space than the former,and that the appellant was only liable, if at all, to pay for one of them,and not for both which the Chairman insisted upon ; that the Chair-man was wrong in so insisting, and if it is so. held, the proceedingsunder section 157 are complete and there should be no prosection undersection 156.
I again agree with the learned Magistrate that each of these projectionsis a separate projection and each of them is a distinct and separatetresspass on the air space above the street. The fact that one is immedi-ately above the other can make no difference to the different acts of trespassor encroachment.
Another point was that the appellant had built these projections withpermission. I agree with the Magistrate that no such permission can beimplied from the documents relied on.
There is left the point I reserved for the end. In holding that theappellant could be prosecuted under section 155, I did so because I agreewith the respondent’s argument that sections 156 and 157 contemplatedtotally different proceedings. Section 156 made the actual builder liable,while section 157 gave the Chairman, if he so desired, the right to adoptthe procedure therein set out in respect of the owner or occupant. It isconceivable that these parties may be different, and in my opinion itwould be reasonable to suppose that the Chairman could choose to availhimself of either section or if he so determined both. The sectionsare not alternative. The builder may erect and immediately aftercompletion of the erection may sell. The Chairman would have theright to proceed under section 156 against the vendor (builder) and undersection 157 against the vendee (owner).
It would follow therefore that the wrongful act took place on theoriginal date mentioned in the plaint, and subsequent negotiations cannotaffect this fact. In that case over three months had elapsed and theprosecution under section 156 would be barred unless something inter-vened to take the offence out of the operativeness of section 236. Thatsomething, it is argued by the respondent, is that the offence must beregarded as a continuing one. I think he is right.
Burnside C.J. in Akbar v. Slema Lebbe1 held that an offence undersection 175 of the Municipal Ordinance, No. 7 of 1887, was a continuingone. The learned Chief Justice depended for this decision on the rulingin the case of The Metropolitan Board of Works v. Anthony & Co.’ Now
2 Cey. Law Reps. 127.
= 54 L. J. M. C. 39.
304
KOCH J.—Dias v. Fernando.
section 175 of the old Ordinance is very much to the same effect as section156 of the later Ordinance. There is this difference, however ; section 175does not include the words “ bracket ” or “ sunshadeIt is soughttherefore to differentiate Lawrie J.’s decision on the ground that thesection under which he decided only referred to actual obstructions set upon streets and not to lateral projections over streets. For the reasonI have already stated I do not think that the principle differs. In myopinion it is the same in either case. The lateral projection is as much atrespass on the Council’s rights as an obstruction raised from a streetbase. One has only to conceive the projection being extended suffi-ciently long to reach the opposite edge of the street to appreciate howeffectively a tall vehicle that proceeds along such street can beobstructed.
I think the conviction is right and the appeal must be dismissed.
Affirmed.