019-NLR-NLR-V-27-CHAIRMAN,-LOCAL-BOARD,-KURUNEGALA,-v.-MEERA-SAIBO.pdf
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Present: Dalton J.
CHAIRMAN, LOCAL BOARD, KURUNEGALA,v. MEERA SAIBO.
333—P. C. Kurunegala, 24,598.
Housing of People and Improvement of Towns Ordinance—Application' to deviate from building—Resolution to define new street lines—Grounds of refusal—Mandatory order to demolish building—Ordinance No. 19 of 1915, s. 18, subsections (1) and (4).
An application to deviate from +he plan of a building, whichhad been previously approved and which did not contravene theprovisions of section 18 (1) of the Ordinance as to street limits,cannot be refused on the ground that the local authority hadresolved to define new street lines subsequent to the application.
No mandatory order for the demolition of a building shouldissue where the building does not contravene some provision ofthe law, or even where by some alteration it could be brought intoaccordance with the law.
HTHE accused was charged under section 13 (1) (b) of the Housing^ of the People and Improvement of Towns Ordinance, No. 19of 1915, with deviating from an approved plan in the constructionof a building, and convicted on March 7, 1925. Following on theconviction the Chairman of the Local Board applied for andobtained a mandatory order requiring him to demolish the building.
The accused appealed from the order. The facts are as follows :—In October, 1923, the appellant received permission from theLocal Board to erect a one-story building on his' property inNegombo road, Kurunegala. In October, 1924, it was found thathe was deviating from the approved plan by putting up anotherstory ; and he was warned that he could not do so without obtainingfurther permission. On November 14 he sent an application tothe Board for approval of the alteration. Under the provisionsof section 18 of the Ordinance, all buildings must be erected uponcertain street lines. When approval was given in October, 1923,for the erection of a building, it was for a building to beerected abutting upon the street. Meanwhile it was found by theBoard that it was advisable in the public interest to define newstreet lines for Negombo road. On February 14, 1925, the Boardmet, and refused appellant’s application. On the same day theBoard passed a resolution under section 18 (4) of the Ordinancedefining the new street lines within the limits of the Local Board.
1985.
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1925.Drieberg, K.C. (with him H. V. Perera), for accused, appel-
Ckairman^an^*—The application to sanction the alteration was made in
local Board, October, 1924, and refused three months later. The reason wan^Ifoera0’ ^at the building would interfere with the street lines, which theySptbo proceeded to define in February, 1925. Under section 9 (1) per-mission must be granted within two months. The Board waitfor three months and arm themselves with a legal reason for refusingthe application. An application for a mandatory order cannotbe justified when the desire to have the building demolished wasnot due to considerations of sanitation, but was dictated by thepecuniary interests of the local authority (Bartholomeusz v. Perera l).It can only be made if the building does not conform to the structuraland other requirements laid down by the by-laws. The discretionto refuse permissi'M cannot be governed by economic considerations(Regina v. The Mayor and Corporation of New Castle-on-Tyne 2).
Refusal of permission on the ground of inconvenience inproviding sewers cannot be justified (Regina v. Tynemouth RuralDistrict Council3).
The only ground for refusal here was the wish to save paymentof compensation in the future. It is no legal ground either forwithholding approval to build or for the demolition of the building.
H. U. Bartholomeusz, for respondent.—The Police Magistrate has'held that the object of the accused was to confront the Chairmanwith the accomplished fact and then ask for permission. Undersection 13 (1) the accused laid himself open to a conviction fordeviating from the plan of the building. The same section givesthe Magistrate a discretion to issue a mandatory order for demo-lition. As there is no evidence of the bonafides of the accused, theMagistrate has exercised his discretion rightly.
At the time of the conviction the new street lines had beendefined. It follows that at the time of the mandatory order, theaccused had built upon the street lines ; and the order is justified.
The Magistrate should not exercise his discretion in favour ofa person who acts contumaciously.
August 4, 1925. Dalton J.—
The appellant, Nagoor Meera Saibo of Negombo road, Kuru-negala, has been called upon under the provisions of section 13 (2)of Ordinance No. 19 of 1915 (Housing of People and Improvementof Towns Ordinance) to show cause why a mandatory order directinghim to demolish a portion of a building and certain appurtenancesthereto erected by him should not be issued. After hearing the
1 75 Law Times 86.
17 C.W. R. 109.
2 60 Law Times 963.
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appellant, the Police Magistrate, Kurunegala, directed him todemolish the " upstair portion of the building,” together with " thesunshades and the pavement.” The appeal is from that order.
The facts of the case about which there is no dispute are asfollows:—
In October, 1923, the appellant received permission from theLocal Board to erect a one-story building on his property inNegombo road, Kurunegala. The building was to be in accordancewith a plan which received the approval of the Board. In October,1924, in the course of the erection of the building, it was foundthat appellant was deviating from the plan by putting up a two-story building, and he was warned that he could'not do so withoutobtaining permission from the Chairman of the Board. Thiswarning appears to have been conveyed to him personally by theChairman himself. On November 14 he ^ent in his application tothe Board for approval in accordance with the warning given him.Following the usual practice the Chairman states he referred theapplication to the Provincial Engineer and also to the Board'sInspector for report. The Provincial Engineer admits that thebuilding which appellant was now erecting did not violate any ofthe provisions or rules of the Ordinance, but nevertheless herecommended that the application should not be granted.
Meanwhile appellant had continued with the work of the building,as he states unless he put the roof on, the work already done wouldsuffer from the rains. Without in any way wishing to appearto express any approval of his act in deviating from the approvedplan without permission, it does seem to me that when he waswarned in October to obtain the Board's approval to the changeshe had made, it was never suggested to him that the changeswould not be approved of (assuming such approval could bewithheld) if they conformed to the then existing provisions of thelaw.
The natural question then is, why did the Provincial Engineer,under these circumstances, recommend that the approval of theBoard to the amended plan should be withheld ? The answeris that sometime between October, 1923, and November, 1924, thequestion of street lines in Kurunegala was raised by the Board.Under the provisions of section 18 of the Ordinance all buildingsmust be erected upon certain street lines. Negombo road at theplace in question is over twenty feet wide (see sub-section (1)), andhence when approval was given in October, 1923, to the erectionof a single story building, it was in order for a building to beerected abutting upon the street.
It is open, however, to the Board to define by resolution newstreet lines from time to time (section 18 (4) ), and it appears tohave been in the mind of the Board or its Chairman that it wasadvisable in the public interest to define new street lines for Negombo
1925.-
Dalton J.
Chairman,Local BoardKurunegala
v. MeeraSaibo
1925.
ALTON J.
Chairman,Local BoardtKurunegala,v. MeeraSaibo
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road inter alia owing to the large increase of motor traffic there.According to the Chairman's evidence, between November 14, 1924(the date of appellant's application) and January 7, 1925, a sub-committee of the Board was, therefore, appointed to deal with thequestion of street lines. The Provincial Engineer was Chairman ofthis sub-committee. It further appears that appelant's applicationwas put before this sub-committee who were of opinion, in the wordsof the Chairman of the Board, that “ the upstairs was not desirable."On February 14 the Local Board met, and then refused appellant'sapplication. On the same day the Board passed a resolution undersection 18 (4) of the Ordinance defining the street lines within thelimits of the local authority. The street lines of Negombo roadwere thereafter thirty-three feet from the centre of the road.
It is clear, tb^efore, that at the time when the application ofappellant was made, during the time it was under consideration,and at the time when it was refused, the street lines of Negomboroad were defined by section 18 (1) at twenty feet, and not atthirty-three feet as defined by the resolution of February 14.There is nothing to show which was considered first by the Boardon that date, the application or the resolution, but I think I amjustified in assuming it was the application, since it had beenpending so long and from a date prior to the appointment of thesub-committee. I may add, however, that even if this assumptionis wrong, it does not in the result affect the case.
The grounds for the refusal of the appellant's application aregiven in evidence by the Chairman. There is.no suggestion thateither he or the Board were not actuated by the best motives.They were seeking to save a possible claim for compensation shouldit be necessary at some future date to widen Negombo road andacquire land and buildings for that purpose. The widening ofthe road had, so the Chairman states, already been taken up byhim, and he, when asked if the Board had the funds, stated thatthe Government had large surplus balances of revenue. I mustadmit I cannot see that that is any answer to the question. Theproposal was obviously in its earliest stages, and all that can besaid is that a survey had been entered upon and a plan made showingthe extent of the proposal. That was presumably necessary beforeany authority would consider the proposal. All that can be saidthen is that there was a possibility that at some future date thisroad might be widened, for which purpose it might be necessaryto acquire the building of the appellant.
But the grounds upon which the approval or consent of theChairman to plans or specifications of buildings or alterationtherein can be withheld are strictly limited by section 7 of theOrdinance, and it is admitted that the two-story building whichappellant was erecting was not in conflict with any provisions ofthe Ordinance. Although designed at first for one stpry, there
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were, for example, no objections from a structural or engineeringpoint of view to the erection of the two-story building on theoriginal foundations. The building did not contravene the pro-visions as regards light, and no sanitary objections could be madeto it. Nevertheless the Police Magistrate has made an order thatthe top story of this building, which the evidence shows must havecost between Bs. 30,000 and Bs. 40,000, was to be demolished.The grounds for this decision may, I think, be fairly put underthree heads:—
An initial blunder was made in granting appellant’s application
in October, 1923, to erect a one-story building.
Appellant has obtained a “ tremendous ” advantage over
others, if his two-story building is allowed to stand.
He has deliberately flouted the warnings of the local authority.
The first ground is based upon a misapprehension of the powersof the Chairman of the local authority. There was in effect noblunder made in granting appellant’s first application, if by“ blunder ” is meant a mistake in granting the application. It issuggested, of course, that it was open to the Board in 1923 to refusethe application, because it might be desirable at some later dateto acquire the land on which the building was to be erected. Butuntil the 'Board had themselves defined the street limits, theyhad no power to refuse the application if the building other-wise conformed to the provisions of the Ordinance and did notcontravene the provisions of section 18 (1) as to limits. That wasnot dene until February 14, 1925, as I have already pointed out.Counsel for the Board has been unable to support this ground forthe Magistrate’s judgment, and he very properly drew my attentionto the powers of the Chairman under section 7, admitting thatthere was no ground that could be put forward why the applicationshould not have been granted. The law in England is .the same.Under the Public Health Acts it has been decided on many occasionsthat a local authority cannot disapprove plans, unless the plansare in contravention of a lawful by-law or some Statute. (Reginav. Tynemouth Rural District Council1.) The remarks I have madeon ground (1) may be said to apply to ground (2) also, which has noreference to the legal aspect of the case.
The argument before me, in support of the Magistrate’s order,has accordingly been based upon ground (3). Because he hasdeliberately flouted the warnings given him, therefore he is to bepunished by demolishing the top story. There is, of course, nodoubt that appellant has deviated from the plan of the buildingapproved in October, 1923. For that he has.been fined andpunished (P. C. Kurunegala, No. 24,089). The argument seems to
1926.
Daltoh .1.
Ohairtnan,Local Boatd,Kurunegala,v.- MeeraSaiho
1 (1896) 2 Q' B. 451.
1025.
Dalton T-
Chairman,Local Board,Kurunegala.v. MeeraSaibo
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be, however, that he is to be further punished by being ordered todemolish part of the building without any reference to the questionwhether the building in fact contravenes in any way at all, any ofthe provisions of the Ordinance. As I have pointed out, it isadmitted the building is in conflict with none of those provisions.No such punishment is provided for in the Ordinance, nor wouldone expect to find it there. I cannot conceive of any order fordemolition being made even if some provision of the Ordinance wascontravened, if by some alteration it could be brought into accord-ance with the law. It would be unreasonable to interpret section13 (2) of the Ordinance otherwise. The discretion vested in theMagistrate must be reasonably and judicially exercised, and Icannot see that here his order was either a fair or proper one.(Anthonisz v. Fernando1 and Abdul Samidv. Corporation o Calcutta.2)
I am also of opinion that when appellant was warned to applyto the Board for its approval of this deviation from the approvedplan, if the .intention had then been formed to define the streetlimits, he should have been told. Instead of that he was instructedto send in his application, which he might rightly assume would beconsidered on its merits. Under the provisions of section 9 of theOrdinance, that application should have been approved of or refusedwithin two months from November 14. In spite of requests tohave the matter dealt with, it was not decided until February 14.Hence all the delay was not on one side only. And lastly theonly ground for its refusal was the wish to save a payment ofcompensation in the future should the property have to be acquiredfor the purpose of widening the street. This of itself is no legalground, either for ordering the demolition of the building, or evenfor refusing to give approval for the application. In Bartholomeuszv. Perera {supra), De Sampayo J. says—
“ The desire to have the building demolished is not due toconsiderations of sanitation or public convenience, but it isin the pecuniary interests of the Municipal Council . . .I do not think he ought to be compelled to demolish if forreasons which have no present application.”
However commendable the motives of the Chairman and theBoard may have been, they afford no legal ground under thepowers vested in them, either to withhold their approval of appel-lant’s application, or to support any request for the demolitionof the building. The order of the Police Magistrate ordering thedemolition of the top story of the building must, therefore, be setaside, and the appeal be allowed.
The question of the “ Sunshades,” and the pavement has I under-stand been settled by agreement between the parties.
* 7 C. H R. 58.
1 33 Calcutta 287.
The conviction of the appellant in P. C., Kurunegala, No. 24,598,on March 28, 1925, on a charge “that he on March 10 didneglect to suspend building operations ” on the premises in question,in respect of which he had been convicted at an earlier date ofdeviating from approved plans, must be set aside, the appellanthaving appealed from this conviction also.
1925.
Dalton J.
Chairman,Local Board fKurunegala,v. MeeraSaibo
Appeal allowed.