068-NLR-NLR-V-39-NESADURAY-v.-AMARASINGHE.pdf
246
Nesadtiray v. Amarasinghe.
1937
Present: Fernando AJ.
NESADURAY v. AMARASINGHE488—M. C. Colombo, 10,417.
Housing and Town Improvement Ordinance—Alteration of buildings—Conver-sion of stores to tenements—Ordinance No. 19 of 1915, s. 6 .(1).
A person who uses a building not constructed for human habitationas a. dwelling house without making an alteration for the purpose ofconverting the premises into a dwelling house is not guilty of an offenceunder section 6 (1) of the Housing and Town Improvement Ordinance.
HE accused appellant was charged with (1) effecting alterations to
T existing buildings, to wit, by converting stores into dwellinghouses by means of internal partitions, without the previous writtensanction of the Chairman of the Municipal Council, Colombo, in breachof section 6 (1) of the Housing and Town Improvement Ordinance, No. 19of 1915 ; (2) for occupying the same buildings or allowing them to beoccupied without having obtained a certificate of conformity in terms ofsection 15 (1) of the same Ordinance. The Municipal Magistrate convictedthe appellant on both charges, and sentenced him to a fine of Rupeestwenty-five on each charge and a further continuing penalty of Rupeestwo and fifty cents per diem on the second charge, to commence on the15th day from the date of conviction until the appellant refrains fromrenting out the unauthorized premises.
Mackenzie Pereira (with him Stanley de Soyza and V. F. Guneratne), forappellant.—The respondent admits that the actual structural altera-tions were effected not by the appellant but by his son. In order toassign a meaning to the word conversion as used in our Ordinance, we arenot called upon to travel outside its provisions. Section 6 defines the wordalteration, and what is penalized is the making of an alteration withoutthe written consent of the Chairman. We cannot divorce the word altera-tion from the word conversion, see sub-section (2) to section 6, so thatwhat is objectionable is conversion by alteration which is quite a differentthing to a conversion .by user. In the case of Inspector Nesadurai v.Appuhamy 1 Poyser J. held that the user of a firewood shed as a livingroom did not contravene the provisions of this section, and there too themeaning of the word conversion had to be considered, and the SupremeCourt was not prepared to hold that mere user without actual alterationwas enough. The section has been enacted to penalize the person whoeffects the alterations or the person at whose instance they were effected ;
1 14 Lam Recorder. 196.
FERNANDO A.J.—Nesaduray v. Amarasinghe.
247
here the appellant had nothing whatsoever to do with the buildings. Thisis a penal liability which is put an end to by the death of the wrongdoer.The obligation to apply for a certificate of conformity in the first instancerests with the person who has erected the building, see sub-section (2) tosection 15, the buildings having been constructed by the appellant’s sonhe should have seen to it. The appellant may presume that all this hasbeen done for he came into the premises long after. The refusal of theChairman to grant the appellant a certificate is bad, he does not state thegrounds of refusal, see sub-section (2). Both charges come under prevent-ive measures, the authorities have misconceived the present prosecution,taxes have been recovered for over one year, the buildings in the alteredform have been allowed to exist for over two years, they must thereforebe treated as existing buildings. One does not resort to preventive measuresto remove a mischief which has been allowed to come into existence. TheOrdinance provides for remedial measures, see Part 2 to the Ordinance.Chapter 3 deals with obstructive buildings and chapter 4 with insanitarybuildings; remedies are provided in these chapters. The continuingpenalty is bad ; it is impossible for the appellant to get rid of his tenantswithin fifteen days, at least they are entitled to a month’s notice.
E. F. N. Gratiaen (with him F. C. de Sararri), for the respondent.—Solong as the appellant continues to use the buildings as dwelling houseshaving-had no authority to use them as such he commits the offence. TheChairman gave the appellant timely warning, he is merely taking advan-tage of his son’s wrong doing. The passage in Lumley on Public Health,vol. I., p. 1033, shows that for conversion actual structural alteration isnot necessary. The ,only sections under which we could have chargedthe appellant are the two referred to in the charge, we cannot obtainan order for demolition. Unless the Court holds the appellant has contra-vened the provisions of section 6, it will be open to the appellant tocontinue renting out an unauthorized building so long as he pays thecouncil a penalty. The Chairman cannot sanction these buildings asthey do not conform to building regulations. It will be difficult totreat these buildings either as obstructive or insanitary buildings.
Council cited V/ilkinsoxrv. Rogers'.
September 8, 1937. Fernando A.J.—
The appellant in this case was'charged with making certain alterationsto the buildings at No. 87, Dematagoda, by converting certain storesstanding on the premises into dwelling houses, in breach of section 6 (1) ofOrdinance No. 19 of 1915. He was also charged with allowing the premisesto be occupied as dwelling houses from and after July 29, 1936, withouta certificate from the Chairman of the Municipal Council as required bysection 15 (1) of Ordinance No. 19 of 1915.
The facts were practically admitted. The appellant’s son was thelessee of the stores, and before his death in April, 1936, had convertedthe seven 6tores into tenements and let them out to tenants. He appearsto have done so without the permission of the Municipality, but later heobtained certificates of conformity for two out of the seven stores. The
248FERNANDO AJ.—Nesaduray v. Amarasinghe.
appellant’s son having died in April, 1936, the appellant continued to letthe tenements to tenants, although there were no certificates of confor-mity. The Chairman of the Municipal Council wrote two letters PI andP2 to the accused, and the accused thereafter submitted certain plansand applied for a certificate of conformity for these buildings, but hisapplication was refused.
The appellant must have been aware when he received the letters fromthe Municipal Council that no certificates of conformity had issued inrespect of these buildings, and that he was not entitled to let them out totenants, but even after the receipt of these letters, the appellant continuedto allow the buildings to be occupied, and in these circumstances, I thinkhe was clearly guilty on the 2nd count. He attempted to argue that hewas willing to give notice to the tenants to vacate the tenements, butthat he did not give such notice because he did not know which tenementthe Municipality wanted to be vacated. As a matter of fact, the learnedMagistrate, held, and I think rightly, that the accused was well aware of thetenements fn respect of which the objection had been taken by theMunicipal Council. With regard to the 1st count, it is clear that whateveralterations were made, they were made not by the appellant, but by hisson who died in April, 1936, and it must also be admitted that the sonhad a lease from the owner of the premises, and had undertaken by thatlease to make alterations to the buildings in question.
Mr. Gratiaen, however, argued for the respondent that the mere factthat the appellant used or allowed the use of the buildings as tene-ments constituted a conversion within the meaning of the Ordinance, andthat such conversion would also be an alteration within the meaning ofsection 6. Section 6 enacts that no person shall make any alteration inany building without the written consent of the Chairman, and section 10provides that no person shall commence any building operations involvingthe alteration of a building, unless he shall have given to the Chairmanseven days! notice of his intention to commence such operations, andhas obtained the approval or consent of the Chairman, and section 13.provides that any person who shall commence or execute operations incontravention of any provisions of this chapter shall be liable to a fine.It. is necessary, therefore for the prosecution to prove that a person didmake some alteration in a building and did commence the buildingoperations involving such alteration without giving notice to the Chairmanand without his approval. When section 6 (2) enacted that for thepurposes of this and the connected sections an alteration means any ofthe following works including the conversion into a dwelling house of anybuilding not previously constructed for human habitation, it seems clearto my mind that the Ordinance had in view some work which resulted inthe alteration or conversion, Mr. Gratiaen referred to certain Englishdecisions in which it has been held that the mere use of a building notconstructed for human habitation as a dwelling house may be a conversionof such building' into a dwelling house, but even if this construction isapplicable to section 6 of Ordinance No. 19 of 1915, still I do npt thinksuch user would make that conversion an alteration within the meaning ofsection 6. In'other words a person who uses a building not constructedfor human habitation as a dwelling house may be committing some offence
249
SOERTSZ J.—Menchina Hamine v. James Appu.
against the provisions o£ Ordinance-No. 19 of 1915, but if he makes no alter-ation, and carries on no building operations for the purpose of convertingthe premises into a dwelling house, then, I do not think he can be regardedas having made an alteration in the terms of section 6, or of havingcommenced building operations within the terms of section 10, nor couldhe for that purpose be regarded as having commenced or executed anybuilding operations within the terms-of section 13 (1) (a) or (c).
For these reasons I think the conviction on the 1st count must fail.I would accordingly set aside the conviction on that count, and affirmthe conviction and sentence on the 2nd count. The continuing penaltyimposed by the learned Magistrate will'also stand.
. Varied.