010-NLR-NLR-V-56-K.-SIMON-PERERA-Appellant-and-M.-RASANAYAKAM-Public-Health-Inspector-Resp.pdf
42
Simon Perera v. Hasmayaham
d954.Present: de Silva J.K.SIMON PERERA, Appellant, cmd M. RASANAYAKAM(Public Health Inspector), RespondentS. C. 1,188—M. C. Colombo, 41,314
-Housing and Town Improvement. Ordinance (Cop. 199)—Section 13 (1) (6)—Offencethereunder—Continuing fine—Circumstances .when it may be imposed.
''o
Under Section 13 (1) of the Housing end Town Improvement Ordinancea person who commits any offence set oat in clauses (a), (b), (c), (d), (e) or (/)“ shall be liable on summary conviction to a fine not exceeding Rs. 300, and' to a daily fine of Rs. 25 for every day on which the offence is continued afterconviction ”,- .
' Held, that a continuing fine cannot be imposed for an offence under the; Seotion unless there is some indication in the charge itself or evidence is led intlte case that the offence is being continued.
48
DE SILVA. J.—Simon Perera v. Rasanayalcam
J^.PPEAL from a judgment of the Magistrate’s Court, Colombo.
U.W. Jayewardene, for the accused appellant.
M. M. Kumarakulasingham, for the complainant respondent.
Cur. adv. vult.
■Juiy 30, 1954. de Silva J.—
The charge against the accused appellant reads as follows:—‘. that you did on the 28th day of November, 1952, at
…. within the division aforesaid being the owner of the said
premises 90 Sedawatte within the limits of Kolonnawa Town deviate'from the approved plan No. 125B/48 without having first obtained theapproval of the Special Commissioner, Kolonnawa Town, in breach of.section 13 (1) (&) of Housing and Town Improvement Ordinance ofChap. 199 of the L. E., and thereby committed an offence punishableunder section 13 of the said Ordinance.” The accused who originallypleaded not guilty to this charge later withdrew that plea and tendereda plea of guilty. The Magistrate convicted the accused and on a subse-quent day made the following order : “ I fine the accused Rs. 50 andcontinuing fine of Rs. 10 p.d. ”. The accused has appealed from thisorder on the ground that the offence that he was charged with is not acontinuing one and that the Magistrate therefore had no power to imposea daily fine of Rs. 10.
According to section 13 (1) of the Housing and Town ImprovementOrdinance a person who commits any offence set out in clauses (a), (6),
, (d), (e) or (/) “ shall be liable on summary conviction to a fine notexceeding Rs. 300, and to a daily fine of Rs. 25 for every day onwhich the offence is continuing after conviction ”. The offence underclause (6) is deviation from any plan or specification approved by theChairman without his written permission. The accused was chargedwith having committed the offence under clause (6) on 28th November,
There is no indication in the charge that he was continuing theoffence thereafter. Nor was any evidence led to show that he wascontinuing to deviate from the approved plan. It may also be possiblethat although a person deviated from an approved plan on a particulardate yet later on he brought the building into conformity with that plan.Therefore unless there is some indication in the charge itself or evidenceis led in the case that the offence is being continued the Magistrate isnot justified in imposing a continuing fine. In the case of Punchihewa v.Nicholas A-ppuhainy 1 Schneider J., while setting aside the impositionof a continuing fine for an offence under section 13 (1) (fc>), observed,
“ The fine for the offence of not bringing the building into conformity■frith the approved plan after the conviction in this case cannot be imposeduntil it has been proved to the satisfaction of the Court that the accusedfailed after the conviction to bring the building into conformity with;the approved plan.” In regard to the above observation of Schneider J.,
(1920) 8 G. W. R. 247.
44
Kwnaraewamy v. Sttbramaniam—-
there is nothing objectionable, if I may'say so 'with respect, in fixing'a continuing fine at the time of the conviction itself, provided, there’are reasonable grounds to believe that the offence is being continued.Such a procedure is not repugnant to the-provisions of section 13 (1).But the continuing fine cannot be recovered unless the Cotut is satisfiedat the time the application is made to recover it that the offence had infact been continued after the convictionl Although the continuing fineis to be recovered later yet the imposition of it at the time of theconviction might adversely affect the accused even though the offence isnot continued. It would be to his advantage if the opportunity isafforded to him at the trial itself to establish that he has already ceased tocommit the offence. This opportunity would in effect be denied to himif a continuing fine is imposed without any intimation to him that he iscontinuing the' offence.
Accordingly I set aside the order imposing a continuing fine but the-reat of the sentence will stand.
Sentence reduced.