NEW LAW REPORTS OF CEYLONVOLUME XXXI.
Present: AJkbar J.
SILVA V TH ABREW.
138—P. C. Avissawella, 17,331.
Housing- and . Town Improvement—Replacement of tiles—Structuralalteration—Ordinance No. 19 of 1915, s. 6 (2) (a).
Replacement of the tiles and zinc sheets on a roof does notamount to construction of the roof within the meaning of section 6(2) (a) of the Rousing and Town Improvement Ordinance.
PPEAL from a conviction .By the Police Magistrate ofAvissawella.
N. E. Weerasooria, for accused, appellant.
,March 27, 1929. Akbar J.—
The accused was charged with having committed an offence undersection 13 (1) of the Housing and Town Improvement Ordinance,
' No. 19 of 1915, in that he did effect certain .structural alterations tohis building within the Sanitary Board limits of the town of Dehi-owita without obtaining the necessary permit from the Chairman.He was convicted and sentenced ta pay a fine of Rs. 15. It appearedin evidence that the Sanitary Inspector had, owing to the outbreakof plague in May, 1928, demolished the three walls of the room at theback and that he had removed the tiles and the zinc sheeting whichwere on the main roof.
The Inspector admitted that the accused had not rebuilt .the wallsof the back room so demolished by him, that the accused had notreconstructed any part of the framework of the roof, which had been
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left intact by him, and that the accused had only replaced the tilesand “ thakarams ” as they were before. Whether the accused isguilty or not depends on the words of section 6 (2) of theOrdinance.
Certain alterations in buildings within the limits of a local author-ity are prohibited without the written consent of the Chairman,and sub-section (2) defines what the word “ alteration ” means. AsI have stated, the accused has hot built, erected, or re-erectedany wall of this building, nor has' he constructed or reconstructedany part of the framework of the -roof. The Police Magistrate inhis judgment has convicted the accused because he thought theaooused had violated the terms of section 6 (2) (k) and section ft(2) (a) of the Ordinance. As regards the former sub-section he 6aysthat the act of the accused should be regarded as ah attemptto re-erect the part of the building which had been destroyed,and was, therefore, a violation of the sub-section. The sub-sectiondoes not apply to an attempt, and as I have already stated, he hasnot re-erected any wall. The authority quoted by the Police Magis-trate, namely, the case in S. C. 674, P. C. Ratnapura No. 30,307,1does not apply. In the first place that case referred to a prosecutionunder section 8 of the Road Ordinance,, and further, the evidence inthat case showed that thg house was rebuilt by the accused, thewooden pillars being replaced by brick ones, the result being that anew building was built on the old foundations.
The Police Magistrate was also of the opinion that the accused hadviolated section 6 (2) (a), which sub-6ection reads as follows:—Alteration means “ the construction of a roof or any part thereof…. ” In the interpretation of these words the Police Magistrate
has made use of the addition to the section introduced by section3 of Ordinance No. 32 of 1917, which is as follows: —
“ But the expression shall not include (a) the reroofing in wholeor in part with cadjan or any substance of a similar character of anybuilding or part of a building;- or (6) the re-erection .in whole or inpart of any wall of any thatched mud and wattle building or anypart thereof rendered unfit for habitation by stress of weather orother similar cause, &c.
I am not surprised at the Police Magistrate being led astray bythese new additions. It will be seen from the report of the SelectCommittee on the Ordinance* that the amendment was introducedfor the purpose of providing some relaxation in the provisions ofsection 6 as they stood; so that the object of section 3 of OrdinanceNo. 32 of 1917 was merely to give additional relief from the severityof the already existing provisions of section 6.
See S. C. Minutes of December If, 1923.
See Hansard Jot October, 1917, page 371.
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The legality of the conviction depends on the meaning of thewords “ construction of a roof ” in section 6 (2) (a). I do not thinkit was ever contemplated to stop the shifting of tiles for the purposeof stopping leaks. The vord “ construction ” clearly means theconstruction of the framework of the roof, so that the relaxationprovided bv Ordinance No. 32 of 1917 was meant to apply wherethe re roofing involved the reconstruction of the framework of theroof. As I have already stated, the accused did nothing to theframework of the roof, which was in the original condition in whichit was before the tiles were removed.
I am, therefore, of the opinion that the conviction is wrong, and1 would set it aside and acquit the accused.