Chairman, Local Board, Kurunegala V. Meera Saibo

Present: Dalton J.

CHAIRMAN, LOCAL BOARD, KURUNEGALA, v. MEERA SAIBO.

333-P. C. Kurunegala, 24,598.

    Housing of People and Improvement of Towns Ordinance-Application ' to deviate from building-Resolution to define new street lines- Grounds of refusal-Mandatory order to demolish building- Ordinance No. 19 of 1915, s. 18, sub-sections (1) and (4).

An application to deviate from the plan of a building, which had been previously approved and which did not contravene the provisions of section 18 (1) of the Ordinance as to street limits, cannot be refused on the ground that the local authority had resolved to define new street lines subsequent to the application.

No mandatory order for the demolition of a building should issue where the building does not contravene some provision of the law, or even where by some alteration it could be brought into accordance with the law.

THE accused was charged under section 13 (1) (6) of the Housing of the People and Improvement of Towns Ordinance, No. 19 of 1915, with deviating from an approved plan in the construction of a building, and convicted on March 7, 1925. Following on the conviction the Chairman of the Local Board applied for and obtained a mandatory order requiring him to demolish the building. The accused appealed from the order. The facts are as follows :- In October, 1923, the appellant received permission from the Local Board to erect a one-story building on his property in Negombo road, Kurunegala. In October, 1924, it was found that he was deviating from the approved plan by putting up another story ; and he was warned that he could not do so without obtaining further permission. On November 14 he sent an application to the Board for approval of the alteration. Under the provisions of section 18 of the Ordinance, all buildings must be erected upon certain street lines. When approval was given in October, 1923, for the erection of a building, it was for a building to be erected abutting upon the street. Meanwhile it was found by the Board that it was advisable in the public interest to define new street lines for Negombo road. On February 14, 1925, the Board met, and refused appellant's application. On the same day. the Board passed a resolution under section 18 (4) of the Ordinance defining the new street lines within the limits of the Local Board.

Drieberg, K.C. (with him H. V. Perera), for accused, appeallant.-The application to sanction the alteration was made in Local Board, October, 1924, and refused three months later. The reason was that the building would interfere with the street lines, which they proceeded to define in February, 1925. Under section 9 (1) permission must be granted within two months. The Board wait for three months and arm themselves with a legal reason for refusing the application. An application for a mandatory order cannot be justified when the desire to have the building demolished was not due to considerations of sanitation, but was dictated by the pecuniary interests of the local authority (Bartholomeusz v. Perera 1[1 7 C. W. R. 109.]). It can only be made if the building does not conform to the structural and other requirements laid down by the by-laws. The discretion to refuse permission cannot be governed by economic considerations (Regina v. The Mayor and Corporation of New Castle-on-Tyne 2[ 2 60 Law Times 963.]).

Refusal of permission on the ground of inconvenience in providing sewers cannot be justified (Regina v. Tynemouth Rural District Council 3[3 75 Law Times 86.]).

The only ground for refusal here was the wish to save payment of compensation in the future. It is no legal ground either for withholding approval to build or for the demolition of the building.

H. H. Bartholomeusz, for respondent.-The Police Magistrate has held that the object of the accused was to confront the Chairman with the accomplished fact and then ask f

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