Rodrigo v. Sylvester.
Present: Keuneman J.
RODRIGO v. SYLVESTER.
283—M. C. Colombo, 15,733.
Municipal Council Ordinance—Neglecting to construct a privy—Not a continu-ing offence—Prescription—Ordinance No. 6 of 19/0, ss. 190, 197, 236.
Where the accused was charged under section 190 of the MunicipalCouncil’s Ordinance with neglecting to construct a water-closet afterwritten notice by the Chairman,—
Held, that the offence was not a continuing one and that the prosecutionwas prescribed under section 236 of the Ordinance.
To render a person liable for a continuing offence under section 197 ofthe Ordinance, there must be a previous conviction for this offence.
> ij.934) Appeal Cases 332.
KEUNEMAN J.—Rodrigo 1t. Sylvester.
^ PPEAL from a conviction by the Municipal Magistrate of Colombo.
N. M. de Silva, for accused, appellant.
L. A. Rajapakse (with him J. R. Jayawardana), for complainant,respondent.
Cur. adv. wilt.
September 5, 1938. Keuneman J.—
The accused was charged under sections 190 and 197 of OrdinanceNo. 6 of 1910 with neglecting to construct a water closet on the premisesNo. 429, Skinner’s road, after written notice by the Chairman requiringhim to construct this had been served on June 10, 1937. The maindefence in the case was prescription under section 236 of the sameOrdinance inasmuch as the complaint was made on November 10, 1937,more than 3 months after the offence. The learned Magistrate heldthat the offence was a continuing offence, and that section 236 did notafford a defence. He convicted the accused, and sentenced him to a fineof Rs. 10, in default 10 days’ simple imprisonment. The accused appealsfrom this conviction.
The relevant words of section 190 are as follows: — “In case theChairman shall he of opinion that any privy or water closet ….
shall be necessary …. for any housethe owner of
such house. . . . shall within 30 days after notice in this behalfby the Chairman, cause such privy or water closet to be constructedin accordance with the requisition contained in • such notice ”. Thesection continues to the effect that where the requisition has not beencomplied with, the Chairman can cause the privy or water closet to bebuilt, and the expenses incurred are to be payable by the owner.
Section 197 of the same Ordinance states that whoever contravenesany provisions under the chapter in which section 190 qccurs, is liableon summary conviction to a penalty, and that whoever continues tocontravene any such provision, after the expiry of one week from suchconviction, is guilty of a continuing offence and liable on conviction to afurther penalty.
It is clear that the accused is not guilty of a continuing offence, underthe latter portion of section 197, as there is no previous conviction in thisrespect in existence.
It is however argued for the respondent that the offence committedby the accused is in its nature a continuing offence, and that section 236has no application, and I am referred to the case of Bartholomeusz v.Ismail1 which was a prosecution under section 156 ; to Zakiv -v. UsoofIsmail ’ a prosecution under section 33 ; to Chairman, M. C. Colombo v.Silva * a prosecution for carrying on a certain business without a licence.
In each of these cases the learned Judge considered the nature of theoffence, and held that the offence was a continuing one, and that section236 did not afford a defence:' I think these cases^ throw no light on thequestion whether the offence under section 190 is a continuing offence ornot It will be necessary for me to consider that question by deterniining
the true construction to be given to section 190.
» 37 N. L. R. 301.*32 N. U R. 172.
• 2 0. W. S. 130.
KEUNEMAN J.—Rodrigo v. Sylvester.
Under section 190 of Ordinance No. 6 of 1910, the Chairman isempowered to give notice in writing to the owner of any premisesrequiring the building of a privy or water closet. After receipt of suchnotice, the owner must within 30 days cause the privy or water closetto be constructed in accordance with the requisition. If the owner failsto do so within the 30 days, he “ contravenes the provisions ” of thissection within the meaning of section 197. I think the offence is completewhere the owner fails to carry out the terms of the requisition within 30days, and that it would be no defence to a prosecution for the owner toaver that he has complied with the requisition after the 30 days. Theimposition of the time limit is important, and I am of opinion that theoffence cannot be regarded as a continuing offence.
In this case the Chairman’s notice was served on June 10, 1937. Onfailure by the owner to complete the work required within thirty daysthereafter, he committed an offence. Proceedings against the ownerwere not initiated until November 10, 1937, more than three monthsafter the commission of the offence. Accordingly under section 236 theowner cannot be made liable to any fine or penalty.
I have also been referred by Counsel for the respondent to ChepstowElectric Light & Power Co. v. Chepstow Gas & Coke Consumers Co.', butI think this deals with a different question. In that case there was notime limit placed on obedience by the requisition, and Lord Alver-stone C.J. expressed his doubt as to whether “ the time of limitation canbe said to begin to run where persons are continuing to disobey an orderwhich is always operative until it is obeyed”. The learned Chief Justiceunder these circumstances discusses but does not decide the question asto the point of time when the disobedience of the order was of such acharacter that the offence could be said to have become complete.
I set aside the conviction and acquit the accused.
> l,. R. (1905) 1 K. B. 19$ at 210
RODRIGO v. SYLVESTER