019-NLR-NLR-V-62-RAJATHURAI-Appellant-and-PUBLIC-HEALTH-INSPECTOR-VALVETITHURAI-Respondent.pdf
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Rajathurai v. Public Health Inspector, Valvetithurai
Present : Weerasooriya J.RAJATHURAI, Appellant, and PUBLIC HEALTH INSPECTOR,
VALVETITHURAI, Respondent
S. G. 42—M. C. Point Pedro, 3020
Housing and Town Improvement Ordinance {Cap. 199)—Re-erection of part of abuilding without approval of Chairman—Is it an offence ?—Sections 2, 5,6 (2) (fc). 13 (1).
By Section 5 of the Housing and Town Improvement Ordinance—
“ No person shall erect or re-erect any building within the limits ad-ministered by a local authority, except in accordance with plans, drawingsand specifications approved in writing by the Chairman.”
Held, that the Section refers to the erection or re-erection of a building (asdefined in Section 2) and not to a re-erection of a part of a building.
Accordingly, a prosecution for a contravention of Section 5 cannot be main-tained if the evidence shows that a building was re-erected partly before thedate specified in the charge and partly subsequent to that date.
A
L^PPEAL from a judgment of the Magistrate’s Court. Point Pedro.S. Nadesan, Q.G., with D. Vivekanandan, for Accused-Appellant.
M.M. Kumarakulasingham, for Complainant-Respondent.
Gur. adv. vult,
AVEERASOOBIYA, J.—Jiajathurai v. Public Henlth Inspector, Vctlvetithurai 71
November 14, 1958. Webrasoobtya,' J.—
The accused-appellant is the owner of premises Nos. 1&3, Valvettithurai.He was charged, with having on the 22nd July, 1957, re-erected at thosepremises a building without plans, drawings and specifications approvedin writing by the Chairman, Town Council, Valvettithurai, in breach ofsection 5 of the Housing and Town Improvement Ordinance (Cap. 199)and with having thereby committed an offence punishable under section13 (1) of the said Ordinance. He was after trial convicted by theMagistrate and sentenced to pay a fine of Rs. 150. The present appealis against his conviction and sentence.
The case for the prosecution is that promises Nos. 1 & 3 consisted of adilapidated old building the roof of which had collapsed and that thoaccused removed the roof, demolished the inner walls of the buildingand built in their place, but on a different foundation, new Avails overAvhich he constructed a concrete flat roof. Although the outer wallsof the old building continue to stand, once they are demolished Avhatis essentially a new structure Avill have replaced the old building. ItAvould seem, therefore, that there has been a re-erection of a buildingwithin the meaning of section 5 of the Housing and Town ImprovementOrd;nance, as held by the Magistrate. He has also hold that the re-erection was without the approval in uniting of the Chairman, ToavhCouncil, Valvettithurai, as required under that section. These findingsI see no reason to disturb.
While on the basis of these findings the accused may be said to haveacted in contravention of section 5, and to have committed an offencepunishable under section 13 (1) of tho Housing and Town ImprovementOrdinance, the question that arises is Avhether the commission of suchoffence on the 22nd July, 1957 (being the date specified in the charge)has been brought home to him.
Velupillai and Murugan, two of the prosecution witnesses, gave evi-dence that they went to the premises on that date and they saAv theinternal Avails being demolished and that a neAv foundation had beenlaid. They also stated that when they again inspected the premisesin the early part of October, 1957, tho neAv walls had come up to a heightof about one foot. The Avitness Vythilingam has stated that when hevisited the premises on tho 29th October, 1957j the Avails had been builtto a height of about nine or ten feet, and it was only when he went thereagain on the 4th November, 1957, that ho saw the new structure completewith a flat roof.
Section 5 of the Housing and ToAvn Improvement Ordinance refersto the eroction or re-erection of a building (as defined in section 2) andnot to a re-erection of a part of a building. As pointed out by Garvin, J.,in Jansz v. Municipal Council of Colombo1, the re-erection of a partof a building is treated in the Ordinance as an alteration in an existingbuilding—vide section 6 (2) (£). On this interpretation of section 5,and even if all the evidence to Avhich I have referred is accepted, tho
1 {1933) 34 iV. L. R. 337.
72 W EERASOORIYA, J.—Hajathurai v. Public Health Inspector, Valvetithurai
r©-erection of the building had taken place only between the 29th Octoberand the 4th November, 1957, and certainly not on the 22nd July, 1957.In the event of my reaching this conclusion I was invited by Mr. Ku-marakulasingham to treat the date 22nd July, 1957, stated in the chargeas an error which is not material in terms of section 171 of the CriminalProcedure Code. I am unable, however, to say that the accused wasnot misled by the error.
set aside the conviction of the accused and the sentence passed onhim and remit the proceedings for a fresh trial before another Magistrateon a charge framed in accordance with the provisions of sections 168 (1)and 169 of the Criminal Procedure Code.
Case remitted for fresh trial.