088-NLR-NLR-V-73-K.-S.-PODI-SINGHO-Appellant-and-M.-A-.-KARUNARATNE-Public-Health-Inspector.pdf
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Podi S’ngho v. Karunaratnc
Present: Tenneboon, J.K. S. PODI SIHGHO, Appellant, and M. A. KARUNARATNE (PublicHealth Inspector), RespondentS. O. 698',67, with Application 381—M. C. Gampaha, 4539/11
Housing ana Town Improvtmeni Ordinance (Cap. 268)—Sections 13 (/), 15 (!) (3)—Ojjence c/ occupying a build'iig without obtaining, a certificate oj conformity—Continuing fine— Circunu tinres vh n * may be imposed.
The accused npjxiilant was charged with tiuvmg occupied on 21st November,1964, a building in contravention of section 15 (1) of the Housing and TownImprovement Ordinance. The -Magistrate found him guilty and imposed a
sentence as follows“ I impose a ponalty fine of Re. 1 per day (continuing
fine) from 21/11/64 ”.
Held, that in a charge under section 15 (3) of the Housing and TownImprovement Ordinance there must always be an allegation of continuingcontravention beyond one day if the court is to' bo invited to exercise itspower of fining for more days than one. If the charge laid refers to occupationin contravention of the law by reference to a single day, the court’s power toimpose a continuing fine does not exist.
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A.PPEAL from a judgment of the Magistrate’s Court, Gampaha.
Colvin R. de Silva, with Malcolm Perera and IF. N. U. Dias, for theaccused-appellant.-.
G. E. ChUty, Q.C., with E. B. Vannitamby, for the complainant-respondent. '•''
F. S. A. PuUenayegum, Crown Counsel,-.with Faisz Muslapha, CrownCounsel, on notice. ~;.- -•• • *
Cur. ado. wit..
TEKXEKOOX, J,—-Podi Singho v. Karunaralnc
479
November G, 1967. Tennekoo.v, J.—
The appellant in this case was convicted on a charge which reads asfollows :—
“You ore hereby charged that you did on 21 /11/64 occupy a buildingby the side of the railway station road, Mirigama within the limitsof Town Council of Mirigama without obtaining a certificate from theChairman, Town Council, Mirigama, and thereby committed an offenceunder section 15 (1) of the Housing and Town Improvement Ordinance,and punishable under section 15 (3) of the aforesaid Ordinance. ”
The plaint was filed on the 2nd of January, I960, and the learnedMagistrate having found the accused guilty after trial imposed sentenceas follows :—
“ I impose a penalty fine of Re. 1 /= per day (continuing fine) from21/I1/G4.”
Counsel for the appellant did not challenge the conviction itself, buthe submitted that in view of the fact that the charge referred to theoccupation of the building on the 21st of November only, the Magistratehad power to fine only in respect of that day, and that no continuingfine could have been imposed by him.
Subsections (1) and (3) of section 15 of the Housing and TownImprovement Ordinance read as follows :—
“(1) No building constructed aflcr the commencement of thisOrdinance shall be occupied, except by a caretaker, until the Chairmanlias given a certificate that such building, as regards construction,drainage, and in all other respects, is in accordance with law.
(3) Any person who occupies or allows to be occupied any buildingin contravention of this section shall he guilty of an ofFcnce, and shallbe liable to a penalty not exceeding twenty-five rupees for each dayduring which the contravention continues. ”
Counsel for the appellant submits that in order to enable the Magistrateto exercise the power of imposing a penalty of fine for any days duringwhich the contravention is continued, the charge should specify notonly the elate on which the accused occupied the building in contraventionof subsection (1), but that it should also state the period during whichthe accused continued to occupy the building in contravention of thatsubsection ; such period necessarily being before the date of the institutionof the criminal proceedings. Some assistance in understanding section15 (3) may be derived by comparing it with section 13 (I) of the sameOrdinance. That section provides that a person who docs certain actsin contravention of the provisions of the Ordinance “shall be liable onsummary conviction to a fine not exceeding Rs. 300/—, and to a dailyfine of Rs. 25/= for every day on which the offence is continued afterconviction”. There is here a provision for an ordinary fine uponconviction ; the power to impose a continuing fine is in relation to actscommitted after the conviction. In the case of Cooray v. Peiris 1 it has* (I9C2) 65 N. L. It. 192.
480TEN'XEKOON’, J.—Podi Si'ngho v. Karunaratnt
been held that when a person is convicted of the offence of contraveningsection 13 (1) (a) of the Housing and Town Improvement Ordinance>,the court has no jurisdiction to impose a daily fine in anticipation of theoffence being continued after conviction. Section 15 (3) contains noprovision for the ordinary kind of fine at all. Indeed it contemplatesex facie a continuing contravention coupled with a power in the court• to impose a penalty regulated by the number of days during which theoccupation in contravention of the section has been continued.
It seems to me that in a charge under section 15 (3) there must always: be an allegation of continuing contravention beyond one day if the. court is to be invited to exercise its power of fining for more days thanone. If the charge laid refers to occupation in contravention of thelaw by reference to a single date the court’s power to .impose a fine for' continuation of occupation in contravention of the law does not exist.In the present case the accused was charged only with occupation ofthe building without a certificate on the 21st of November, 19C4. Therewas no allegation of continued occupation beyond that day ; any evidenceof occupation beyond that date would have been irrelevant. Accordinglythe powers of the court to impose a penalty in respect of any succeedingdates on which the accused may occupy the building in contraventionof the law have not been invoked. The sentence cannot go beyondthe offence of which the accused is convicted. I must not however betaken, as saying that there cannot be a further prosecution in respectof periods of occupation after the 21st of November, 196-t, if that be thecase.
Counsel for the respondent submitted that the continuing fine cfBe. l/=per day was valid but effectual only up to the date the accusedpleaded to the charge. Learned Crown Counsel w*ho appeared as amicusalso supported the view that the sentence was valid and would be effectiveup to such date as the accused ceased to occupy without a certificatebut not going beyond the date of conviction. Having regard to thenature of the charge framed in this case which did not allege occupationbeyond a day it is unnecessary to consider these submissions.
It must be noted that I have assumed, for the purposes of this judgment,that it is legitimate to read the word “penalty” in section 15 (3)of the-Housing and Town Improvement Ordinance as equivalent to•‘fine” and that a Magistrate’s court has jurisdiction to try offences underthat subsection. No argument was addressed to me by any of theCotinsel appearing before me on these two points and accordingly thisjudgment should not be taken as a pronouncement of this court oneither of those points.
While affirming the conviction, the sentence imposed by the Magistrateis set aside. I substitute for it a fine of Bs. 15/=in respect of the chargeon which the accused was convicted, viz., occupation of a'building* in'contravention of .section 15 (1) of the Ordinance on 21 J] 1/64.* * * : * *.
Sentence altered.