054-NLR-NLR-V-24-THE-CHAIRMAN,-SANITARY,-BOARD,-v.-KANAGARATNAM.pdf
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Present : De Sartipayo J.
THE CHAIRMAN, SANITARY BOARD,v. KANACrARATNAM.
212—P. C. Matale, 17,603.
Appeal—Housing and Town Improvement Ordinance, No. 19 of 1951,s. 74—*’ Closing order*' prohibiting the use of a building by Magis-trate—:Appeal to Supreme. Court—Tribunal of Appeal. ’
An appeal lies to the Supreme Court from a “ closing ^order ”made by a Police Magistrate under section 74 (1) of the Housing andTown Improvement Ordinance, No. 19 of 1915, prohibiting theuse of a building for human habitation.
fJlHE facts appear from the judgment.
Jansz, C.C., for respondent, raised the preliminary objection thatthere was no appeal to the Supreme Court from aii order made bythe Police Magistrate under section 74 of Ordinance No.t 19 of 1915.The only appeal that is contemplated by the Ordinance is to thespecial ‘‘ Tribunal of Appeal '* constituted under chapter II.
Spencer Rajaratnam, for accused, appellant.—Ordinance No. 19 of1915 contemplates two sets of orders. One set made by the ’Chairman of the local authority appeals from whose orders are takento the 44 Tribunal of Appeal ** (see sections 16 and 26): and, theother set of orders made by the Police Magistrate, from who&e ordersthe appeals should be to the “ Court of Appeal,” section. 74 (6).The Ordinance nowhere gives power to the 4 4 Tribunal of Appeal ’' torevise the orders made by a Police Magistrate- Therefore “ Courtof Appeal ” must signify something other than the *' Tribunal ofAppeali.e., it signifies, the ordinary “ Court of. Appeal,” viz., theSupreme Court. . Even if the . Ordinance No. 19 of 1915 does notgrant the right of appeal to this Court, the Supreme Court is entitledto hear this case in appeal in the exercise of the powers vested init under section 39 of the Courts Ordinance.
Further he argued on the merits.
Jansz, C.C., for respondent-1-Though the Supreme Court isentitled to hear this appeal under section 39 of the Courts Ordinance,it will not exercise that power unless the appellant has a right ofappeal. If no right of appeal is provided by Ordinance No. 19 of1915 from an order under section. 74, the appellant cannot appealto an? Court.
Cur. ado. vult.
1922.
i )
1M*.
The
Chairman,Sanitary*Board, v.Kanaga•ratnam
June 14, 1922. De Sampayo J.—
This is an appeal from a V closing order ” made by the PoliceMagistrate under section 74 (1) of the Housing and Town Improve-ment Ordinance, No. 19 of 1915, prohibiting the use of a certainbuilding for human habitation. Crown Counsel Mr. Jansz, appearingfor the respondent, the Chairman of the Sanitary Board, obiectsto the appeal being entertained on the ground that the appeal shouldbe, if at all, to the Tribunal of Appeal constituted by the Ordinance.Sub-section (6) of section 74, under which the order appealed from hasbeen made, enacts as follows:—“ Where an appeal is made againsta closing order, and such appeal is dismissed or is abandoned, theappellant shall be liable to a fine not exceeding Bs. 20 a day duringthe non-compliance with the order, unless he satisfies the Courtbefore which proceedings are taken for imposing the fine that therewas substantial ground for the appeal, and that the appeal was notbrought merely for the purpose of delay; and when the appeal isheard, the Court of Appeal may, on dismissing the appeal, imposethe fine as if it were the Court before whicli the summons was return-.able.”
What is the “ Court of Appeal ” referred to in this sub-section ?The “ Court of Appeal ” in the ordinary acceptation of the terms isthe Supreme Court which, under the Courts Ordinance, has appellatejurisdiction in respect of judgments and orders of the .DistrictCourts, the Courts of Requests, and the Police Courts of the Island,and consequently the Ordinance No. 19 of 1915 appears to contem-plate appeals to the Supreme Court from “ closing orders ” made by aPolice Magistrate under section 74 (1). There .is no doubt thatsection 83 of the Ordinance provides for the constitution of a special“ Tribunal of Appeal ” consisting of a president and two assessors,but what is the jurisdiction of this Tribunal ? Section 93 (1)declares that “ the Tribunal of Appeal shall, subject to theprovisions of this Ordinance, have jurisdiction and power to hearand determine all appeals and other matters referred to them underthis Ordinance.”
It will be noticed that the power of this Tribunal is subject totwo qualifications:First, it is “ subject to the provisions of this
Ordinar.-jie,” and if 1 am right ir. holding that the Ordinances providesfor appeals to the Supreme Court from “ closing orders,” there is noappeal from such orders to the Tribunal of Appeal. Secondly, ithas power to hear and determine only such appeals and other mattersas are “ referred to them under this Ordinance.” Now there arecertain appeals expressly given to the Tribunal of Appeal, under theOrdinance ; for instance, from a refusal of the Chairman of 1heSanitary Board to approve of plans for buildings, Ac. (section 10),and from orders of the Chairman under chapter II. with regard tothe laying out of streets (section 26). The Ordinance nowhere givespower to the Tribunal to entertain appeals from the orders of a
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Police Magistrate. Apart from these limited quasi-judicial functions,the Tribunal ot Appeal ha3 certain executive and administrativeduties assigned to it by the Ordinance ; e.g., assessment of com-pensation payable under the Ordinance (section 81 (1), and givingrelief in cases of informality in the execution of any improvementscheme (section 100 (1)). Moreover, it is ti transitory tribunalthe members holding office only for a term of one year. It is quiteclear that the Tribunal of Appeal is not the “ Court of Appeal ”referred to in section 74 (6) of the Ordinance. I think tho name isunhappy. The Tribunal, in fact, appeai-s to me merely a board vestedwith the power of control in certain respects of'the local authoritiesin connection with schemes of housing and town improvements,tn my opinion this appeal is rightly preferred to this Court.
The order appealed from cannot stand. The Chairman of theSanitary Board applied under section 74 (1) of the Ordinance for anOrder prohibiting the use for human habitation of two rooms in theappellant’s house. The rooms are those marked A and B in theplan, which the appellant denied were used for living in. He saidthey were used as the kitchen of the main building C, in which helives. At the inquiry two witnesses, namely Dr. Chcllappah,Sanitary Officer, and Wanigesekera, Sanitary Inspector, gaveevidence in support of the application. These officers appeared tohave done their duties of inspection and observation very per-functorily. The inspection of the Medical Officer was in the day-time, and was about six months before the application, and all thathe could say was that the appearance of the rooms gave him theimpression that people occupied them. He said further, “ the roofis straw, and is used for kitchen purposes.” This Is a curiousstatement if rightly recorded. The straw-covered roof could notpossibly have been used for kitchen purposes. He must have meantthat the rooms were used for kitchen purposes, and that entirely sup-ports the defence. He inconsequent-ly added, however, that Tamilcoolies occupied the rooms, though he previously said he only spokefrom the appearance of the rooms. The appellant protest^ thatas a strict Hindu he would never allow his kitchen to be occupiedby Tamil coolies. In any case I cannot attach much value to thedoctor’s evidence on this point. The Inspector gives the result ofhis inspection about three months before the present application.He says he saw some dirty mats against the wall of room B. Hecould riot give the date of his visit, but the visit was in the morning.He says: ” I did not. visit it at night, as I cannot.” I do not knowwhy not. At all events if he did not, his evidence is to that extentvulueless.. Then occurs this significant passage. ” There is'cooking done in A. I cannot say whether tenants occupy B, Ifaccused says it is used only for cooking purposes, 1 cannot deny it.”
If he cannot deny it, then the appellant’s evidence, which, in con-trast to that of these witnesses, is definite, full, aud consistent, must
IMS.
De Sampayo
j.
The
Chainnan,SanitaryHoard, v,Katutga-
ratnam
{ 188 )
J.
The
Chairman,Sanitaryboard, v.Kanaga-rotnam
1922. be accepted as true. The Inspector also, like the doctor, inconse-Sampayo l3uen^.y adds: “ The people who were in the building were Tamil
coolies.of the coolv type.” He had not said before that there were
any people in the building.
Neither of these officers appears to understand what it wasthey were expected to find out by inspection and to prove in Court.Their evidence as it stands reads like nonsense. It is strange thatall throughout not a word is said about the rooms in question beingunfit for human habitation, though that is the foundation for theapplication. Every assistance should certainly be given to thesanitary authorities to enable them to exercise their powers in theinterests of the public, but the ordinary rights of private individualsshould not be lightly interfered with upon such evidence as was givenin this case.
The order is set aside.
Set aside..