038-NLR-NLR-V-59-M.-Y.-M.-JALADEEN-Appellant-and-M.-D.-ALBERT-Municipal-Inspector-of-Prosecu.pdf
H. N". O. I'ERNAKDO, J.—Jalaldeen v. Albert
127
1957Present : H. N. G. Fernando, J.M. Y. M. JALALDEEM, Appellant, and M. D. ALBERT(Municipal Inspector of Prosecutions), Respondent
S. C. 1,221—M. M. C. Colombo, 87,2S9
Housing and Town Improvement Ordinance [Cap. 199)—Sections 5,13, 19—lie-erectionoj building within street line—Mandatory order for demolition of building—Manner in which the discretion to order demolition should be exercised.
Where o person re-erects a building in contravention of section 5 of theHousing and Town Improvement Ordinance and it is clear thut the reercctionor a substantial portion of it projects beyond the street line in contraventionof sections 19(1) (a) and 13 (1) (c), an order for demolition may properly bemade under section 13 (2)..
The power to make a mandatory order either for demolition or alteration-under section 13 (2) of the Ordinance is discretionary.
Where there has teen a duo conviction under paragraph (c) of section 13 (1)an respect of an erection or re-erection of a building which is not in compliancewith a substantive provision of the law, the discretion to make oither a man-datory order for demolition, or for alteration, if alteration is practicable, mustbe exercised by the Magistrate.
A mere breach of any of the provisions of paragraphs (o), (b) or (d) of section13(1) will not per se justify the exercise of the discretionary power to make anymandatory order .under sub-section (2) of section 13, unless the case is onewhere there lin3 been, in addition, an erection or re-erection in contraventionof an express statutory prohibition…
-^^kPPEAL from an order of the Municipal Magistrate’s Court, Colombo.
J. A. L. Cooray, with F. X. J. Rasanayagam, for the defendant-appellant…_ >
H. V. Perera, Q.C., with N. Nadarasa-, for the complainant-respondent.
•,‘Cur. adv. vult.
June 7, 1957. H. N. G. Fekxando, J.—
This is an appeal against a mandatory order made under section 13 ofthe Housing and Town Improvement Ordinance (Cap. 199 C. L. E.)■directing the appellant to demolish a certain building situated within theMunicipality of Colombo ; the order followed a conviction of the appel-lant for having “ re-erected a building, to nut:—A dwelling house at pre- -ruises Ho. 2S, Ketawalamulla Lane, within the Municipality of Colombo,in contravention of section 5 of the Housing and Town ImprovementOrdinance (Cap. 199). ” It seems clear that the building in question isa “ re-erection ”, and that the re-erection or a portion of it projects -beyond the street, line ; the appellant has not attempted to show by -evidence that a major or substantial part of the building does not pro- _ject beyond the street line, and I can assume that the re-erection was•effect ed in contravention of section 19 of the Ordinance. Indeed Counsel '.
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H. N. G. FERNANDO, J.—Jalaldeen v. Albert
■ for the appellant has not made any submission to the .contrary, but has 'only argued, upon'the authority of the decision of de Saxnpayo, J. inBartholomeiisz v.' Perera1, firstly that the power to make a mandatory_order Bhould be exercised in ’ discretion Jind not arbitrarily and secondlythat the. order should not be made in respect of a re-erection, .as opposedto a new erection. With the first of these submissions I .-would entirelyagree, but the second of them calls for a somewhat detailed considerationof the statutory provisions and the authorities. *. ' – 'j*-"
A conviction under section 13 (i) of the Ordinance constitutes a con-dition precedent to the making of the mandatory order for demolition,*and the offences contemplated in section 13 (1) can be roughly classedinto three categories :—
The commencement, continuance or resumption of building; operations in contravention of Chapter I of Part II of the Ordi-nance {paragraph (a) ), or the deviation from any approvedplan or specification {paragraph {b) ),* or the failure to complywith any lawful order or written. direction of the Chairman(paragraph {d) ) ;
the execution of any building operation in contravention of any
local by-law {paragraph (c));‘
the failure to remove a temporary structure within the time speci-
fied in the permit authorising* its erection (paragraph (e)).
Category (i) is related to the provisions of sections 5, 6, and 10 of theOrdinance which impose a sort of “ administrative control ” overerections, re-erections and alterations by requiring, in the first twoinstances, the submission of plans and specifications, and in the thirdinstance the consent of the Chairman. They ensure that buildingoperations will not commence without prior authorisation, and that theoperations are executed in accordance with the authorisation, and afford ’the local authority the opportunity of considering whether any proposedbuilding operation will or will not conflict with restrictions and require-ments contained in the Ordinance itself, or in the building by-laws.
Category (ii) is related directly to conflict with the restrictions andrequirements to which I have just referred, which include, for example,•the provisions in section 19 prohibiting buildings within street lines andrequiring buildings to abut upon a street, and the provisions in theSchedule to the Ordinance prescribing standard heights, the size of livingrooms and standards of ventilation. Whereas category (i) provides asanction for the enforcement of procedural requirements, category (ii)is the sanction for the substantive conditions and restrictions govenungbuildings. •'.'. ' . ~. . -_
Category (iii) is of a special nature the consideration of which willnot assist the present discussion. .-.
' To refer now to Bub-section (2) of section 13 which provides for themaking'of the mandatory' order, it is important to note, the express .provision that the Magistrate may make a mandatory order either for
1 {1919) 7 O. IF. H. 109.
JSC- U". G. FJEKXA2STDO, J.—Jalaldcen v. -Albert
129
the demolition of the building in question or for the alteration of it insuch a way as to bring it into accordance with law. In several decisions 'which quite rightly held that the power to make an order is' adiscretionary one it was apparently not realised that the Legislature,in providing that the mandatory order would not necessarily be one fordemolition but -might alternatively be for a requisite alteration-, almostexplicitly rendered the power discretionary. In any event the term•"may” makes it quite clear that the legislature did not intend that anorder for demolition should follow each and every conviction under sub-section (1) of section 13. Although several decisions of this Court havealready established the proposition that demolition is not to be orderedas a matter of course, a review of them does indicate that it would behelpful to make some attempt to define the manner in which thediscretion to order demolition or alteration should be exercised.
In the Chairman, Local Board, Kurunegala v. Meera Saibo 1 the localauthority had approved a plan for the extension of a single storey building,but the appellant actually commenced erecting a building of two storeys ;when warned that this was illegal without permission, he applied for therequisite permission, but this permission was withheld although theerection would not in any way have contravened.the substantive provi-sions of law regarding buildings in the area concerned.. What occurredwas that, after delaying consideration of the appellant’s application,the local authority decided to define a street line for the street in questionand on the very same day refused to grant approval for the proposeddeviation from the plan. The local authority had to admit that theerection of the two-storeyed building would have been authorised in thefirst instance if applied for and that at the time of. the application therewas no street line restriction in operation. On these facts Dalton, J.held that the refusal of permission was unlawful, and pointed out that the, only purpose of seeking a demolition order was to save payment of com-pensation for the future in the event of street widening. The decisionin the case was only that the building which the appellant had erecteddid not contravene the substantive restrictions as to projections withinthe street line for the simple reason that no street line had been definedat the time of the erection. Hence the only breach of law, if any, whichthe appellant had in that case committed was to deviate from an approvedplan without the necessary permission. In other words the only offence,if at all, was one which I have included in category (1) above. I w ouldagree entirely in that context that the discretion to make an order for■demolition should not have been exercised…
In Barlholomeusz v. Deen2 the complaint was that the building in•question had beeir erected . in contravention of paragraph (6) of.sub-section (1) of section 19 (then section IS) of tha Ordinance in thatit did not abut upon a street or have all the land between one face of thebuilding and the street reserved for the use of the building. Akbar, j.,however, found that in terms of the second part of paragraph (a) ofBuie 7 in the Schedule to the Ordinance, the building was one in respect-of which the requirement laid down in paragraph (b) of sub-section (1)of section 19 did not apply. The pith of the decision was only that the
1 (1925) 27 TV. L. li. S3.' ’* {1931) 33 N. L. It. 235.'
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11. N. G. FERNANDO, J.—JalaJdeen v.' Albert '…
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power to order demolition could not be exercised at all because no offence* specified in section 13 (1) of the Ordinance had been committed ; thequestion whether the discretion should, be exercised did not thereforearise.• .•’’.>■’
In the recent case of The Chairman, U. C., Malar a v.Abeysuriya 1 abuilding had been erected within a limit of twenty-five feet from the centreof the road, thus contravening section 87 of the Urban Councils Ordi-nance, No.' 61 of 1939, which fixed the building limit‘and accordinglycontravening sub-section (1) of section 19 of the Housing and TownImprovement Ordinance. After discussion of the earlier casesNagalingam, J. held that upon those facts a mandatory order for demo-lition should have been made, and in so doing expressed the view thatwhere there has been a violation of an express provision of the Statute,the.mandatory order must be made if applied for. It was not a case ofconstruing “ may ” to mean “ shall ” (as counsel for the appellant thinks),but an interpretation based on the intention of the Legislature.According to my understanding, what was meant in this judgment by a“ violation of an express provision of the Statute ” was an offence ofthe type which I have included in category (ii). To take'for example abuilding erected or re-erected within the line of an existing street, theerection or re-erection would constitute a direct violation of paragraph
of sub-section (1) of section 19 of the Housing and Town ImprovementOrdinance ; in other words the Legislature has expressly prohibited bymeans of that section any erection or re-erection within the street line.Accordingly if there is such an erection or re-erection, an order for de-molition must be made if applied for and a Court which, because theprohibition enacted by the Legislature may seem unduly harsh or severe,declines to exercise the powrer to order demolition would be trespassinginto the province of the Legislature. Even though the motive of the’local authority in applying for demolition may in reality be the desire *to avoid ultimate payment of compensation, the fact remains that theerection or re-erection is one which the Legislature has'prohibited and thesanction which the Legislature has imposed must therefore be applied ;the Legislature’s desire that the building should not exist has to berespected by the Courts.
The case may be different if a building only partially contravenes thestreet line restriction as, for example, when a part only of the erectionor re-erection is within the street line. In such a case section 13 (2)requires the Magistrate to consider whether an alteration of the building..in such a way as to bring it into accordance with law is possibleor practicable, and if so he would exercise his discretion in favour ofthe alteration rather than order demolition of the* entire building. AsDalton, J. observed in The Chairman, Local Board, Kurunegala v. MeeraSaibo 2 “ no demolition order would be made even if some provision ofthe Ordinance was contravened if by some alteration it could be broughtinto accordance with law. ”•
I should now refer to the case of Barlholomeuiz v. Perera 3 where therehad been a re-erection on a port ion of a building which had fallen down
1 [i960) 52 A'. L. if. 319.■* [1925) 27 N. L. if. S3 at p. SS.
.. 3 [1919) 7 C. It*, if. 109.'
H. X. G. FERNANDO, J.—Jalaldeen v. Albert
131
and where the accused had re-erected that portion within the street linelaid down by the Municipal Council. Clearly in that case there had beena violation of a provision of law prohibiting re-ercctions within a streetline. The argument submitted to this Court on behalf of the Councilwas that the Magistrate had no discretion in the matter and that he wasbound to make an order for demolition if the Council teas satisfied of thenecessity for demolition. I agree entirely that that argument had to berejected in so far as it denied any discretion to the Magistrate, but withgreat respect I would dissent from the further view expressed bydeSampayoJ. that no mandatory order under section 13 (2) should havebeen made at all. The ground stated for that view was that the desireof the Council to have that building demolished was purely in thepecuniary interest of the Council and that the line of street was whollyimaginary and would not pass into actual fact until some indefinite time.I might add that the street in question, Lauries Road, Colombo, has notyet been widened to the pz'escribed line of street. Rut I would res-pectfully point out that the decision in that case ignored the fact thatthe re-erection within the street line constituted a clear breach of section13 (1) (c) of the Housing and Town Improvement Ordinance and thataccordingly, as was later pointed out by Nagalingam, J., the failure toorder demolition of the projection amounted to a licence to the accusedin that case to flout the prohibitions imposed bjr the Legislature.
I should perhaps add some observations as to cases wheze the onlybreach izi question is the failure to sizbmit plazzs azzd specifications incompliance with law or a deviation from some approved plan. Whilesuch a breach would zezider an offender subject to conviction undersection 13 (1) for a.breach of paragraph (a) or (b) thereof, the convictionwould zzot _per se empower a Magistrate to make any mandatory orderunder section 13 (2) and such an order would only be made if, izi addition,the erection itself cozitravezies some substantive provision of law to whichI have referred in category (ii).
To summarize, I would hold—
(а)that the power to make a mandatory order either for demolition oralteration iznder section 13 (2) of the Ordizianco is discretionary,;
(б)that where there has been a dize coziviction under paragraph (c) of"
sub-section (1) of section 13 in inspect of an erection or re-erection of a.building which is not in compliance with a substantive provision of thelaw, the discretion to make either a mandatory order for demolition, or-for alteration if alteration is practicable, must be exercised by theMagistrate;'
that a mere bz-each of any of the provisions of,paragraphs (a), (6) or
of section 13 (1) per. se will not justify the exercise of the discretionary
power to make aziy mandatory order under sub-secion (2) of section 13,unless of course the case is one where there has been, izz addition, ansrection or re-erection in eontravezition of an express statutoryprohibition.,„.- •
In the present case as I have already pointed out the only evidence ishat the entire re-erection is within the street line, anti upon the
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BASNAYAKE, C.J.—Agostinu v. Kumaraswamy
principles which I have attempted to enunciate, the order for demo-lition was properly made and is accordingly affirmed. I would, however, .set aside the order of the Magistrate condemning the appellant to paycosts fixed at Its. 262/50. There is no provision in the Criminal ProcedureCode which authorised the making of. that order for costs.
Order affirmed.