1935   Present: Koch J.

BARTHOLOMEUSZ v. ISMAIL.

181-M. C. Colombo, 3,779

Sunshade-Erection over a street-Lateral projection-Continuing offence- Limitation-Municipal Councils Ordinance, No. 6 of 1910, ss. 155, 156, 157, and 236.

Where the accused erected a balcony and a sunshade as a lateral projection, which did not start from a foundation in a street,-

Held, that he had offended against the provisions of section 156 of the Municipal Councils Ordinance, No. 6 of 1910.

The offence created by the section is a continuing one and limitation will not run against it so long as the projection remains.

Sections 156 and 157 of the Ordinance contemplate totally different proceedings.

APPEAL from a conviction by the Municipal Magistrate of Colombo.

H. V. Perera, for accused, appellant.

L. A. Rajapakse, for complainant, respondent.

October 10, 1935. KOCH J.-

The appellant under the plaint filed in the case was charged "with having caused on or about March 6, 1934, a balcony and a sunshade to be placed over the footway opposite premises Nos. 71-73, Norris road, Pettah, in breach of section 156 of Ordinance No. 6 of 1910". The prosecution was entered on October 19, 1934. A preliminary objection was raised by the appellant's counsel in the lower Court that the offence was prescribed under section 236 of the Ordinance. This section requires the complaint in respect of an offence committed in breach of the Ordinance to be made within three months next after the commission of such offence. The complainant's counsel thereupon moved to amend the plaint by substituting the words "August 10, 1934" for the words "March 6, 1934". The accused's counsel, Mr. Jansz, had no objection to the amendment but reserved his right to contend that the offence, if any, was committed on March 6, and not at a later date. The learned Magistrate allowed the amendment. Mr. Jansz acted reasonably in not objecting to the alteration of the date, and the Magistrate was right in allowing the application. Whether the offence was in point of fact committed on March 6, or on August 10, I shall deal with later, as there are other points raised by the appellant's counsel in appeal which I would wish to decide first.

The first of these points is that assuming the facts to be correct, no offence was committed under section 156, and that the Chairman, if he felt that the rights of the Municipality had been interfered with, should have proceeded under the section next following-section 157-and should have noticed the appellant in writing to remove the projection within fourteen days, failing which the party noticed would have been liable to a fine of Rs. 150 and the Chairman could himself cause the projection to be removed and recover the expenses of the removal from such party.

Mr. H. V. Perera's contention was briefly that section 156 referred to an obstruction or encroachment which was caused as the result of a vertical erection or building from the base of a street upwards, but that here we are concerned with a sunshade and balcony that were the result of a lateral projection Over and above a street and did not start from a foundation in a street. I do not agree. I am of opinion that section 156 contemplates a projection such as is complained of in this case. The section inter alia speaks of " setting up any bracket, sunshade, or other obstruction or encroachment". A bracket or sunshade would ordinarily be considered a lateral projection built into a vertical wall, but the matter is concluded by the amendment to this section, which is found in section 7 of Ordinance No. 12 of 1932. This amendment consists in adding to section 156 the words " or from allowing the putting up temporarily of sunshades and any other similar projections". " Sunshades" therefore are to be considered projections, and projections are acts of lateral structures. I therefore hold that section 156 applies.

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