112-NLR-NLR-V-22-KASTURIRATNE-v.-SENANAYAKE.pdf
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1920.
Present: De Sampayo J.
KASTURIBATNE v. SENANAYAKE.
684—P. 0. Avissawella, 20,223.
Housing and Town Improvement Ordinance, No. 19 oj 1915, s. 13—No. 32of 1917, s. 3—Removal of two walls and rebuilding them—Is itrepair or minor alteration f
Accused removed two old walls supporting the roof of his houseand rebuilt them without obtaining permission from the Chairmanof the Sanitary Board.
Held, that the erection of the two new walls was not a mere“repair or minor alteration,” and that accused was guilty of abreach of section 13 of the Housing and Town Improvement Ordi-nance, No. 10 of 1916.
fJ^HE facts appear from the Judgment.
J. S. Jayawardene, for accused, appellant.
September 29, 1920. De Sampayo J.—
This is a prosecution under section 13 (1) (a) of the Housing andTown Improvement Ordinance, No. 19 of 1915, for commencingbuilding operations without the permission of the Chairman of the
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Sanitary Board in oontravention of the provisions ol the Ordinancein that behalf. The reference is to section 6 (1), which prohibits“ any alteration in any building ” without the written consent ofthe Chairman, and to section 10, which prohibits the commencementof any building operation “ involving the erection, re-erection, oralteration of a building ” without giving notice to and obtainingthe approval and consent of the Chairman. The facts of the caseare that in June last the accused removed two old walls supportingthe roof of his house and rebuilt them without obtaining any per-mission from the Chairman. In the first place, it is contended onhis behalf that the above provisions of the Ordinance did not apply,as the house had existed before the coming into operation of theOrdinance, and Wickramasuriya v. Per era1 is cited in support of thecontention. That case, however, only decided that, where buildingoperations had lawfully commenced before the date of the Ordi-nance, the act of continuing them after that date was not within theenactment. It is obvious that that case does not support theargument. It is next argued that the erection of the new wallsin place of the old ones was only effecting repairs to the house, andthat the accused is exempted from the penal provisions of the Ordi-nance by virtue of certain exceptions created by section 3 (6) and (c)of the amending Ordinance, No. 32 of 1917. Section 6 of the mainOrdinance had defined the word “ alteration,” but section 3 of theamending Ordinance enacted that the expression shall not include—
“ (6) The re-erection in whole or in part of any wall of anythatched mud and wattle building, or any part thereof, renderedunfit for habitation by stress of weather or other similar cause ;or
“ (c) Any repair or minoralteration as to which it shall have beendeclared by public notice on the order of the Chairman that theconsent of the Chairman will not be required under this section.”
It is for the accused to establish the facts which would enable himto bring himself within either of these exceptions. There is nothingto show that the house was only a thatched mud and wattle building.Nor do I think that the erection of the two new walls constitute amere “ repair or minor alteration.” It appears to me'to amountto a substantial building operation. In any case there is nothingto show that it has been declared by public notice or otherwise thatthe consent of the Chairman will not be required for works of thiskind. On the contrary, from the fact that the Chairman has on theface of the plaint authorized the prosecution, I presume that nosuoh notification has been made/ No appeal lies in this case onthe facts, as the fine is a small one, and the point pf law taken failsfor the above reasons. The appeal is, therefore, dismissed.
Appeal dismissed.
1 (1917) 20 N. L. B. 166.
1920.
De SampavoJ.
KasturtrcUne
e.
Smanayake