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January 11and 15.
ESTOGTJ PILLAI v. CHINNIAH.
P. G., Trincomalee, 7.065.
Thoroughfares Ordinance, No. 10 of 1861, s. 91, sub-section 8—Attaching
additions to shop by way of sunshades so as to project over the side drain—Evidence of injury to the road.
The words of sub-seetion 8 of section 91 of “ The Thoroughfares Ordi-nance, 1861,” are wide enough to include the case of a person who, havingshelters to his shop alongside of the public road, fixes cadjan tats to theeaves of his roof and lets them down over the side drain propped by twosticks planted in the ground next the drain, so that the tat, thougheasily removable, projects over the outer edge of the drain.
The injury to the road may be in regard to not only its substance orsurface, but also the reduction of the breadth of the thoroughfareavailable for traffic between the side drains.
HE complaint against the accused was that he had attached
additions by way ot tats or sunshades to his boutique so asto project over the outer edge of the side drain, in breach of the91st clause, sub-section 8, of the Ordinance No. 10 of 1861.
The Police Magistrate, after hearing evidence, found the accusedguilty, and sentenced him to pay a fine of Rs. 25, or in default toundergo one month’s rigorous imprisonment.
The accused appealed with the leave of the Court.
H. Jayaw.ardana, for appellantWendt, for respondent.
15th January, 1900. Browne, A.P.J.—
I have no note of any previous decision on the section inquestion (Ordinance No 10 of 1861, 91, 8) which subjects toprosecution any one who shall do any of these things, viz., shallattach additions to his house so as to project over the outer edgeof the side drain of any road, or shall by means of temporarysupports or otherwise expose goods or wares of any descriptionover any portion of a road or its side drain, or shall by causingcarts to be loaded or unloaded in front of his dwelling in anyway injure the side drain.
Cur. adv. wit.
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It will be noted that the first two of these will be offences evenwithout injury to the road. In P. C., Trincomalee, 4,343 (S. G. M.22nd January, 189$), injury was not proved, but if it has to beproved, there may be injury otherwise than to the substance orsurface of the road—i.e., it will be sufficient offence to narrowthe breadth of the thoroughfare available for traffic between theopposite side drains.
The first offence is a very terse statement of that which is anoffence against the Municipal Councils’ Ordinance, No. 7 of 1887,section 183, any projection, encroachment, or obstruction erectedor placed against or in front of any house or building, if the sameoverhangs or juts into, or in any way projects into or encroachesupon, or is an obstruction to the safe and convenient passage alongany public street, or obstructs, or projects, or encroaches into orupon any uncovered drain in such street. But I do not know thatits simple words are less clear than the more elaborate languageof a quarter of a century later. I consider they contain allthe different kinds of encroachments which the latter moreelaborately describes.
The offence charged here is that appellant did “ attach addi-tions ” by way of tats or sunshades to the said bankshall so as to“ project over the outer edge of the side drain in breach of,” &c.The Magistrate has convicted the accused, but fined him onlysuch an amount as forbids any appeal except upon a matter oflaw, and thus for the second time, and before myself (vide 4,343,P. C., Trincomalee), the power of this Court to deal in appeal withquestions relating to the construction of this clause are curtailed.Here the only contention that has been advanced is that thetat complained of is not an “ addition to the house,” which is“ attached to ” it. The description of it is that there are not onlyshutters to the building, but there are also the tats made ofcadjans, which is “fixed to the rafters,” and each tat has twoprops which are fixed about 2 inches in the ground (but on whichside of the side drain is not stated), but can be removed withoutany effort, and woidd not remain so fixed if the tats were removed.In 4,343, P. C., the tat was made of boards, and when notpropped outwards served as a shutter, and so were not alwaysbeyond the line of the drain as those of the appellant are said to be
It appears to me that the words of the Ordinance are so wideas to include erections of fhe kind proved, and that no ground oflaw lias been established, nor, having read the careful judgmentof the Magistrate, does it appear to me that any other appeal onmatter of law is arguable against the same.
The appeal must be dismissed.
January 11and 15.