001-NLR-NLR-V-29-HORAN-v.-ADAMJEE.pdf
THE
NEW LAW REPORTS OF CEYLONVOLUME XXIX
Present: Lyall Grant J.1927,
HOEAN t;. ADAMJEE.720—M. G. Colombo, 3,959.
Housing of the people and improvement of towns—Unfit for humanhabitation—Closing order—Ordinance Ho. 19 of 1915,$.98,
and rule 4 in schedule.
Where a person is served with a closing order under section 71 (1)of the Housing of the People and the Improvement of TownsOrdinance, the Municipal Authorities have no power to apply tobuildings erected before 1915 rule 4, contained in the scheduleto the Ordinance.
T
HE appellant wap served with a closing order under section74 (1) of the Housing of the People and Town Improvement
Ordinance, 1915, in respect of premises of which he was owner.
With the order a plan was served on him, indicating what the appellanthad to do to render the building fit for human habitation. Hecarried out some of the alterations indicated in the plan but faded tocomply with all the instructions. He then applied to the Chairmanto certify that the premises were fit for human habitation. Uponhis refusal he applied to the Municipal Magistrate to determine theclosing order. The Magistrate refused to do this, and the appeal istaken from his decision.
L. Pereira (with Canakeratne and H. E. Garvin), for appellant.—
All that the Police Magistrate had to see was that rule 3 had beencomplied with. This we have done. Our contention is that theroom does comply with this rule because the windows abut onthe open air ** indirectly " through an open verandah.
1J. N. B 37931-1,000 (9/54)
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1927*
Horan v.Adamjee
Section 96 specifically fefers to rule 3 as being the only rule whichhas to be complied with to render a building fit for human habitation*
There is no section of the Ordinance which applies rule 4 at all.
The Magistrate clearly finds that the buildings are quite sanitaryand fit for human habitation, and that the only omission is a technicalcompliance with rule 4. This rule does not apply to old buildings.
Hayley (with N. K. Ghoksy), for the respondent council.—Ifthe order had been only under section 74 of the Ordinance, thenthe owner could not make alterations without himself submittingplans, &c. But in this case the appellant was given specificdirections in the earlier proceedings, in which the closing order wasmade as to what alterations he had to make to render the buildingsfit for human habitation and he did not then object. The planserved on him then indicated all the alterations he was required tomake. His present application is for a revocation of the closingorder without complying with all these directions. That cannotbe done.
In view of the definition of " this Ordinance ” in section 2, theChairman cannot consent to a revocation if the building will continueto contravene any provisions of the Ordinance, that is rule 4 of theschedule.
Buie 4 is only a provision for a specific case falling under rule 3.The two are inseparable. It only applies to the windows referredto in rule 3. Yabbicon v. King. 1
The licensing authority cannot vary a bye-law or sanction analteration which would contravene a bye-law.
June 1, 1927. Lyall Grant J.—
This is an appeal against an order made by the MunicipalMagistrate of Colombo. The facts are briefly as follows: InDecember, 1925, the appellant was served with a closing order madeunder section 74 (1) of Ordinance No. 19 of 1915 in respect of certainpremises of which he was the owner. The order was in the usualform of a closing order in respect of houses declared to be unfitfor human habitation by reason of construction, lighting, andventilation.
It prohibited their use for human habitation from and afterMarch 1, 1926, and until “ such time as the Chairman shall certifyin writing that the said dwelling houses have been rendered suitablefor human habitation or until such time as the Magistrate shalldetermine this closing order, under section 74 (5) of Ordinance No. 19of 1915," and the Municipal Magistrate further ordered improve-ments in accordance with the plan served on the owner.
1 {1899) 1 Q. fi. 444.
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With the order a plan was served on the appellant indicatingwhat the appellant had to do to render the habitation fit for humanhabitation.
The appellant carried out some of the alterations indicated in theplan but failed fully to comply with the instructions. He thenapplied to the Chairman of the Municipal Council to certify thatthe dwelling houses had been rendered fit for human habitation.This the Chairman refused to do. Thereupon on September 31,1926, the appellant applied to the Court to determine the closingorder. The Municipal Magistrate refused to do so, and it is fromthis decision that the present appeal is taken. '
The principal grounds upon which it was argued that the MunicipalMagistrate ought to have granted the application were: —(1) Thatthe only question for decision was whether the premises had beenrendered fit for human habitation, and (2) that the Municipalauthorities had no power to apply to buildings erected previous to1915 (as these buildings admittedly were) any of the rules containedin the schedule go the Ordinance with the exception of rule 3, whichby section 96 (1) is expressly applied to such buildings. It is notdisputed that the buildings as they now stand comply with therequirements laid down in rule 3 of the schedule, unless rule 4 isto be considered as part of rule 3.
The part of the Ordinance which more particularly deals withinsanitary dwellings is chapter 4 of Part III.—the part of the Ordi-nance dealing with remedial measures. That chapter imposes uponthe local authority a duty to ascertain by inspection whether anydwelling house is unfit for human habitation, and if a dwelling houseappears to the Chairman to be unfit for human habitation, thefurther duty is imposed of applying to the Magistrate for an orderprohibiting the use of such dwelling house for human habitation tillit is “ rendered fit for such habitation."
Section 75 provides that the Magistrate, if he is satisfied that thedwelling house in respect of which the order is made cannot bemade fit for human habitation without the execution of suchalterations as he may specify, may direct the owner to carry intoeffect the execution of such alterations as may be so specified.
In the present case the Municipal Magistrate ordered theexecution of the alteration set out in a plan. No objection wastaken at the time to the plan.
If the appellant before the order was made was of opinion thatthese premises could be rendered fit for human habitation by thealterations which he has now carried out, he could have takenexception to the plan. He did not do so, but he afterwards cameforward and asked the Magistrate to make in effect what was avariation of his original order. If the Magistrate on this applicationbeing made to him had taken the ground that he had already
1927.
LvallGrant J.
Horan v.Adamjee
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1927.
LyaixGhaht J.
Horan w,Adamjee
decided that the premises were unfit for human habitation unlessand until the alterations indicated were carried out, it would havebeen difficult for this Court to interfere with his discretion.
The Magistrate, however, does not base his decision to continuethe enforcement of his closing order on this ground. He says“ I do not deny, and Dr. Aserappa, the Assistant Medical Officer,himself does not deny, that they appear to be perfectly goodtenements and that they appear fit for human habitation.*'
He bases his decision on the grounds that the premises do notcomply with rule 4 of the schedule, which requires a space of 15 feetbetween the buildings.
It is therefore necessary to consider the question whether rule 4applies to buildings erected before the promulgation of the Ordinance,the alteration of which1 has been ordered under chapter 4.
Section 96 provides that a room which does not comply withrule 3 of the schedule shall be deemed to be unfit for human 'habitation. It is clear, therefore, that it is the duty of the Chairmanand the Magistrate to insist on any room not complying with thisrule being altered so a6 to comply with the same.
Reference has been made in argument to a proviso in sub-section (2) of this section, which the appellant claims has the effect ofenlarging the discretion of the authorities.
As I read that proviso, it applies solely to the period of five years,during which the operation of the section is suspended in the caseof old buildings. Its effect with that of sub-section (2) generallyis now exhausted.
The appellants main argument is: If a room complies with rule 3of the schedule and is not on other grounds considered to be unfit forhuman habitation the Magistrate has no power to make a closingorder. The argument for the respondent is alternative. He claimsin the first place that when an old building has been found to beinsanitary and unfit for human habitation, the Court has power toorder such alterations as may be necessary to comply with therequirements imposed upon buildings erected after the date of theOrdinance. Section 7 provides that the Chairman shall notconsent to any alteration in a building which would conflict withthe provisions of the Ordinance, “ Ordinance ” by the definitionclause includes the whole of the schedule, f.e., it includes rule 4.
do not think section 7 has any application to the present case.It occurs in Part II. of the Ordinance, which deals with preventivemeasures and has reference to section 6, which forbids a personmaking alterations without the Chairman's consent. I cannot seethat it has any application to alterations ordered by the authoritiesto be carried out under chapter 4 of Part III.
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t
The only power given by that section is a power to ordersuch alterations as are required to render dwelling houses fit fdrhuman habitation.
It is contended alternatively that rule 4 is really a part of ruleand that when section 96 refers to rule 3 it must be taken as referringto rules 3 and 4. This argument has been accepted by the learnedMagistrate, and it was argued on appeal that it is impossibleto read rule 3 apart from rule 4.
The rules are certainly closely connected. Rule 3 (d) requiressuch habitable room to be provided with doors or windows openinginto an external open space.
Rule 4 provides that wfiere such window is situated on the sideor interior face of a building the external open space shstll be ofcertain dimensions.
Section 96 declares that a room that does not comply with rule 3shall not be fit for human habitation, and I am jasked to rule thatit is a necessary implication from this that the external open space-referred to in rule 3 must have the dimensions given by rule 4.
Section 96 is"a restrictive and penal provision. If the Legislaturehad intended that non-compliance with rule 4 should ipso facAorender a building unfit for human habitation, it would have beenperfectly easy for it to have said so.
/
It would be a very dangerous rule of construction if whenthe Legislature has selected one rule out of several to carry with itpenal consequences, it is to be understood as having implied thatnon-compliance with any other rule which is not mentioned is tohave the same consequences. It is quite possible for a roomto comply with the requirements of rule 3 though it d6es not complywith those of rule 4, and in these circumstances I tiiifik it would bevery unsafe for a Court to say that the Legislative intended theexpression “ rule 3 ” to mean “ rules 3 and 4.*''
do not think that any consent originally given by the appellantto the plan shown to him affects the question which is one of the.Magistrate's powers.
As the Magistrate considers that the buildings are now fit forhuman habitation, he ought to determine his closing order, and theproceedings are returned to him for the purpose of doing so.
1987:
LtailGbant J.
Horan t>.Adamjee
Set aside.