370 ABRArlAMS C.J.—Municipal Council, Colombo v. Murugappa Ckettiar.
Present: Abrahams C.J.
MUNICIPAL COUNCIL, COLOMBO v. MURUGAPPA CHETTIAR.
631—2—M. C. Colombo, 17,686.
Housing and Town Improvement Ordinance—Offence of re-erection of a build-ing—What amounts to re-erection—Ordinance No. 19 of 1915, s. 5.
The expression “ re-erect ” in section 5 of The Housing and TownImprovement Ordinance may be taken as the equivalent to the words“ erect a new building
Jansz v. Municipal Council. Colombo 134 N. L. R. 337) explained.^^PPEAL from a conviction by the Municipal Magistrate of Colombo.
N.' Nadarajah (with him E, B. Wikramanayake and N. Kumara-singham), for the accused, appellants.
A. Rajapakse (with him M. M. 1. Kariapper), for the complainant,respondent.
Cur. adv. vult.
January 24, 1939. Abrahams C.J.—
This is an appeal against a conviction in the Municipal Court ofColombo, in which the first appellant was ordered to pay a fine of Rs. 75and the second appellant a fine of Rs. 30 for an offence against section 5of The Housing and Town Improvement Ordinance, No. 19 of 1915.which reads as follows: —
“ No person shall erect or re-erect any building within the limitsadministered by a local authority, except in accordance with plans,drawings and specifications approved in writing by the Chairman. ”
It was alleged by the Courts Inspector of the Municipal Engineer’sDepartment, Colombo Municipality, that the appellants re-erected threetenements without the requisite plans, drawings and specifications.It was admitted by the appellants that they had not submitted anyplans, drawings and specifications, but they contended, and they stillcontend, that the building operations which they had undertaken inrespect of the tenements did not amount to the re-erection of buildings.
The evidence of the building operations was given by the SurveyorInspector of the Municipality, and no attempt has been made before meto controvert those facts. The Inspector said that on March 12 heinspected the premises and he found that the roof of the tenementshad been totally removed. The front short walls and wood work of twoof the tenements had been removed, and the two cross walls of one werein course of demolition. A pillar of one of them was being built. Thesecond appellant was supervising the work and the Inspector requiredhim to stop it. A further inspection of the premises on March 17 foundthe work still in progress. The demolished front walls had been rebuilt,the roof practically reconstructed and the two cross walls re-erected.Every position of the building except one cross wall had been takendown and rebuilt with new walls and new pillars. Counsel for theappellants admits that most of the original buildings had been demolishedand were in the process of being rebuilt.
ABRAHAMS C.J.—Municipal Council, Colombo v. Murugappa Chettiar. 371
Now there is no definition of “ re-erection I invited Mr. Wikrama-nayake, who appeared for the appellants, to say how much of an oldbuilding was to be left to justify his contention, when building operationswere undertaken resulting in the completion of a new building of whichthe remaining portion of the old building formed a part, that there wasno re-erection but only, as he contended, repairs or alterations to the oldbuilding.. He said that he was arguing that re-erection demanded theconstruction of a totally new building upon the site of an old buildingthat had been completely demolished, and he was prepared to accept theproposition that I put before him, namely, that so long as one brick stoodupon another re-erection could not be ^performed. He based such anastonishing argument upon the language used by Garvin S.P.J. in Janszv. Municipal Council of Colombo In this case where certain buildingoperations had taken place the point at issue related to the constructionof section 18 (4) of The Housing and Town Improvement Ordinance,which, however, has nothing to do with the present case. In section 18,for the purposes of the application of that section, the word is given anextended meaning, but that extended meaning does not apply to section 5.However, this is what Garvin S.P.J. says, “ the word 4 re-erection ’in the provisions of section 18 in its original form has reference to thereplacement of an existing building by another, substantially similarin structure to the one which it replaced ”, and later at page 340 he refersto a later Ordinance, No. 32 of 1917, which amended section 18 byenlarging the meaning of the term ‘ re-erection ’ “ to include operationswhich did not involve the entire replacement of a building by another ”.Mr. Wikramanayake argues from that that Garvin S.P.J’s interpreta-tion of the word ‘ re-erection ’ goes so far as the last brick argumentto which I have referred above, becausd presumably he has used thewords “ entire replacement ”. I think Garvin S.P.J. would have beenhorrified if it had been put to him that the language he used involvessuch a reduclio ad absurdum. I think his language was approximateonly.
In my opinion it is a pure question of-fact whether a building has beenrepaired or altered or re-erected. It is not possible to lay down anyhard and fast rule. Assuming that there is not a complete demolition,removing the very foundations themselves, the- question would be,I conceive, as to how much of the original building was left and whatwere the new operations. To say that because the old foundationshad been, left to support a new building merely amounts to alterationsor repairs to the old building is as good as saying that if one had a pair ofshoes made, using the soles of an old pair, that amounted to repairingthe old pair of shoes.
Although the wording of the enactments is not identically the same,I think that the words of Coleridge C.J. in James v. Wyvill* can. beadopted in this connection. This was a case in which the language ofthe bye-laws made under the Local Government Act of 1858 was con-sidered, and the question of what was the meaning of the expression“ to erect any new building ” was discussed. The learned Chief Justicesaid, “ Now the question, whether a building is a new building or not,
' 34 N. L. R. 337. at p. 339.* 51 (N.S.) X-. T. 237, at p. SUC
KEUNEMAN J.—The King v. Appuhamy.
has been decided over and over again to be a question of fact; it is aquestion of degree. For instance, if a building were nearly all takenaway and then rebuilt, it clearly would be a new building; on the otherhand, it is quite clear that by a small addition of, say, a door the buildingwould not thereby become a new building. Between these tiffo extremecases there may be thousands of cases, and it would be impoisible to givea definition in each particular case as to what is, or is not, afiew building;and it must be left to the discretion of each judge to decide for himselfwhat is a new building. So that the question is and must be a question offact. ”
I think that the expression “ re-erect any building ” can in the absenceof any definition binding us to any particular meaning be clearly takenas the equivalent to the words “ erect a new building ”. I therefoream of the opinion that the Magistrate came to a proper conclusion and Idismiss the appeal.
MUNICIPAL COUNCIL, COLOMBO v. MURUGAPPA CHETTIAR