169-NLR-NLR-V-48-SILVA-Appellant-and-WANIGASEKERA-Sanitary-Inspector-Respondent.pdf
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HOWARD C.J.—Silva v. Wanigasekera.
1947Present: Howard C.J.
SILVA, Appellant, and WANIGASEKERA (Sanitary Inspector),
Respondent.
S. C. 754—M. C. Gampola, 13,267
Housing and Town Improvement Ordinance—Erection of building—Does itinclude boundary wall?—Chapter 199, s. 5—Meaning of toord“ appurtenances ”.
A building within the meaning of section 5 of the Housing and TownImprovement Ordinance does not include a boundary wall.
^^PPEAL from a judgment of the Magistrate, Gampola.
E. F. N. Gratiaen, K.C. (with him Ivor Misso), for the accused, appellant.
S. W. Jayasuriya (with him C. Chellappah), for the complainant,respondent.
Cur. adv. vult.
October 27, 1947. Howard C.J.—
The appellant in this case appeals against his conviction under section13 (1) (a) and (e) of the Housing and Town Improvement Ordinance(Cap. 199) of the offence of erecting a building to wit a boundry wall infront of premises No. 16, Malabar Street, Gampola, of which he was thejwner without getting plans, drawings and specifications approved in
(1804) 10 Vee. 318.3 (1900) 1 Ch. at p. SI8.
(1915) .4. C. 866.* (I860) 31 L. T. N. S. 327.
HOWARD C.J.—Silva v. Wanigasekera.
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writing by the Chairman of the Urban Council in contravention ofsection 5 of the Ordinance. The Magistrate held that a boundary wallattached to the house by two arms is an appurtenance to the house andthat section 5 is sufficiently wide to cover it. Section 5 of the Ordinanceis worded 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.”
The relevant parts of section 13 are worded as follows : —
“13.(1) Any person who shall—
commence, continue, or resume building operations in
contravention of any provision of this Chapter ;
, (c) and (d)….
fail to remove or pull down any building or alteration to anybuilding erected or made for a temporary purpose undera permit issued by the Chairman, within the timespecified in such permit ; or
(/)….
or if such person cannot be found, the owner of thebuilding in question, shall be liable on summary con-viction to a fine not exceeding three hundred rupees, andto a daily fine of twenty-five rupees for every day on whichthe offence is continued after conviction.”
“ Building ” is defined in section 2 as follows : —
“ ‘ building ’ includes the outhouses or other appurtenances of abuilding.”
Mr. Gratiaen, on behalf of the appellant, has invited my attention to thefact that special provision is made for the control of the building ofmasonry boundary walls in section 108. He also refers to the definitionof “ building ” in section 2 of the District Councils Ordinance (Cap. 195).This definition states that “ building ” includes any house, hut, shed orroofed enclosure, whether used for the purpose of a human habitation orotherwise, and also any wall. Section 87 of the Urban Councils Ordinance(No. 61 of 1939), makes special provision for licences for boundary walls.Having regard to the wording of these provisions Mr. Gratiaen contendsthat the definition of “ building ” in section 5 does not include “ a wall ”.Mr. Jayasuriya or. the other hand maintains that the words “ otherappurtenances of a building ” must-be given a wide meaning and wouldinclude any wall erected within the premises. In this connection herefers to the 2nd edition of Norton- on Deeds at p. 274 where it is statedthat in a conveyance of land the word “ appurtenant ” must be given awide interpretation. But I do not think i,t follows that the same inter-pretation should be given to the word “ appurtenances ” when used in thepenal provisions of a statute as is given to this word when it occurs in aconveyance. Mr. Jayasuriya also cited the case of Bowes v. Law ’, inwhich it was held that the building of a wall to the height of 11 feet was a
1 {1870) L. R. 9 Equity Cases, 636.
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HOWARD CJ.—Silva v. Wanigasekera.
'breach of a covenant that “no buildings” except dwelling houses not tocost less than £200 each should be erected. This case again was con-cerned with the construction of a covenant in a conveyance. MoreoverI observe that James V. C. at p. 641 stated that the word “ buildings vis perhaps an- ambiguous expression, and certainly in its ordinary wayit does not signify a wall. Mr. Jayasuriya also cited the case of Trim v.Sturminster Rural District Council'. This case raised a question withregard to the definition of “ house ” in section 188 of the Housing Act, 1875.At pages 515-516 Slesser L.J. in the course of his judgment statedas follows: —
. “ The question for the decision of this Court is whether, in coming tothat conclusion, the learned judge was correct in law. In myopinion, he was wrong in law in coming to any such conclusion. In- thedefinition to which I have referred certain specific matters are mentioned,that is to say, any yard, garden and outhouses, and then follows theword “ appurtenances ”. That word has had applied to it, througha long series of cases mostly dealing with the meaning of the word indemises, a certain limited meaning, and it is now beyond question that,broadly speaking, nothing will pass, under a demise, by the word“ appurtenances ” which would not equally pass under a conveyance ofthe principal subjectmatter without the addition of that word, thatis to say, as pointed out in the early case of Bryan v. Wetherhead 1 thatthe word “ appurtenances ” will pass with the house, the orchard,yard, curtilage and gardens, but not the land. That view, as far asI understand the authorities, has never been departed from, except thatin certain cases it has been held that the word “ appurtenances ” mayalso be competent to pass incorporeal hereditaments. Certainly nocase has been cited to us in which the word “ appurtenances ” has everbeen extended to include land, as meaning a corporeal hereditament,which does not fall within the curtilage of the yard of the house itself,that is, not within the parcel of the demise of the house.”.
Mr. Jayasuriya has contended that following the reasoning in thiscase the house in question in the present case must include anythingwithin its curtilage and hence includes a boundary wall. Again I do notthink that the facts of Trim v. Sturminster Rural District Council can beapplied to the facts of the present case which must be decided on theparticular wording of the Housing and Town Improvement Ordinance.The phraseology employed in this Ordinance leaves it open- to doubtwhether the definition of “ building ” in section 2 includes a “ wall ”.In these circumstances as sections 5 and 13 impose penal provisions theymust be strictly interpreted and must leave no room for doubt that“ building ” does include a “ wall ”. The appeal is therefore allowed andthe conviction set aside.
Appeal allowed.
■ (193S) 2 K. B. D. 50S.
* Cro. Car. 1,