041-NLR-NLR-V-29-HORAN-v.-NARAYAN-CHETTY.pdf
( 198 )
1987.
Present: Drieberg A.J.
HORAN r. NARAYAN CHETTY.
435—M. G. Colombo, 1,226.
Housing and Town Improvement Ordinance—Closing order served duringlease-—Allowing the house to he used for human habitation—Liability of owner—Ordinance No. 19 of 1915, s. 79.
The owner of a bouse, who had leased it on an indenture before aclosing order was made in respect of it, cannot be convicted undersection 79 (1) of the Housing and Town Improvement Ordinanceof having allowed the house to be used for human habitation duringthe period of the closing order.
A
PPEAL from a conviction by the Municipal Magistrate ofColombo.
Navaratnam, for accused, appellant.
Keuneman (with Villava Rayen), for respondent, complainant.
( 199 )
September 12, 1027. Drieberg A.J.—
This Is au appeal by the accused-appellant from a convictionunder section 79 (1) of the Housing and Town ImprovementOrdinance, No. 19 of 1915, of having allowed certain dwelling housesto be used for human habitation while a closing order was operative.The accused has been fined Rs. 200, and a further sum of Rs. 10 a dayfrom July 27, 1927, so long as the houses are occupied while theclosing order remains operative.
The accused is. the owner of the houses, and he leased them to
K.R. N. Nagappa Chetty for a period of three years from October1, 1924, by Indenture No. 371 of September 11, 1924. The closingorder, which is dated December 23, 1925, prohibited the use of thehouses from April 1, 1926; an order was also made for their alter-ation in certain respects as provided by section 75 of the Ordinance.This order was made in M. C. No. 5,047. The party originallynamed was the accused-appellant, but his agent, Somasunderam,was added, and the closing order has been made against him.Somasunderam uses the same vilasam, and it is not contendedthat the order does not bind the accused-appellant.
The closing order was neglected, but the appellant’s agent and thelessee, Nagappa, both worked at effecting the alterations ordered,.and at the time of the trial on the present charge, June 15, 1927,about two-thirds of the houses had been altered.
Before this Somasunderam had been convicted in M. C. No. 1,825on May 18, 1926, of allowing the houses to be used in violation ofthe closing order, and on July 13, 1926, he was again convictedof the same offence in M. C. No. 2,629. On both these occasions hewas fined on his pleading guilty, but no continuing penalty wasimposed.
The charge in the present case was made on April 20, 1927. Onpage 2 of the record it is stated that the accused (it is not statedwhich accused) appeared on summons, and in answer to the chargestated that the premises had been leased to Nagappa Chetty. Atthe trial both the accused-appellant and Somasunderam werepresent, and also Nagappa Chetty.
At -the trial the only question before the Court, which was whetherthe accused had allowed the houses to be used for human habitation,was confused with the non-compliance with the order requiringalterations. It is clear that'the appellant, Somasunderam, and thelessee had interested themselves with making the alterations; theappellant said that he could not do more for want of funds. Thelessee was in default and he had sued him for* cancellation of thelease. The learned Magistrate says that there is no defence to thecharge, all that the defendants urge is that they did not have the29/17
1927.
Horan v.NaroyanChetty,
( 200 )
1927.
Dbibbebg
AJ.
Horan v.NarayanChctty.
money to carry on the work, and that the 1st defendant’s evidenceaffords an unqualified admission of guilt with a plea for mercy onaccount of his not having the money to finish the work.*'
Now, this would have amounted to an unqualified admission ofthe offence of not carrying out the alterations ordered, but theaccused were not charged with" this offence, and on this admissionthe 1st accused, the appellant, has been convicted under section79 (1), which has nothing to do with the order for alteration. TheMagistrate in his judgment said that he did not propose to punishthe 2nd accused.
As I have mentioned, the only question for decision was whetherthe appellant had allowed the houses to be used for humanhabitation during the period of the closing order. The houses werein the occupation of tenants, holding, not under him, but under~Nagappa» to whom he had leased them before the closing order wasmade, and which lease was in force at the time of the alleged offence;at that time, therefore, the appellant had no power to eject thetenants in occupation.
Now, a person can only be Said to allow a thing when he has theright or power to prevent it. This is the ordinary meaning of theword. It is also the meaning adopted by the Courts. See Barling J.in Crabtree v. Fern Spinning Co.1 In dealing with the offence underrule 8 (2) of Chapter 22 of the By-laws of th^ Municipal Council ofColombo, of " suffering ” a condemned building to be used for humanhabitation, de Sampayo J. said "suffering a thing to be done connotesthe right or power to prevent it, and an owner of property which islegally leased to a third party with exclusive rights of possessioncannot of his own force prevent, while, the lease subsists, the use ofthe property by the lessee or any person under him. ” (Labrooy v.~ Ramasamy Chetty et al.-)
The person who allowed the house to be used for human habitationis not the appellant but the lessee, Nagappa. I therefore set asidethe conviction, and acquit the appellant.
Set aside.
* 85 L. T. S49.
* {1912) 15 N. h. if. 287.