1947  Present: Howard C.J.

SILVA, Appellant, and WANIGASEKERA   (Sanitary Inspector),
Respondent.

S. C, 754-M. C. Gampola, 13,267

Housing and Town Improvement Ordinance-Erection of building-Does it include boundary wall ?-Chapter 199, s. 5-Meaning of word " appurtenances ".

A building within the meaning of section 5 of the Housing and Town Improvement Ordinance does not include a boundary wall.

APPEAL from a judgment of the Magistrate, Gampola.

E. F. N. Gratiaen, K.C. (with him Ivor Misso), for the accused, appellant.

S. W. Jayasuriya (with him C. Chellappah), for the complainant, respondent.

Cur. adv. vult.

October 27, 1947. Howard C.J.-

The appellant in this case appeals against his conviction under section 13 (1) (a) and (e) of the Housing and Town Improvement Ordinance (Cap. 199) of the offence of erecting a building to wit a boundry wall in front of premises No. 36, Malabar Street, Gampola, of which he was the owner without getting plans,  drawings  and  specifications  approved  in

1  (1804) 10 Ves. 315.
2  (1915) A. C. 856.
3 (1900) 1 Ch. at p. 818.
4 (1869) 21 L. T. N. S. 227.

writing by the Chairman of the Urban Council in contravention of section 5 of the Ordinance The Magistrate held that a boundary wall attached to the house by two arms is an appurtenance to the house and that section 5 is sufficiently wide to cover it. Section 5 of the Ordinance is worded as follows: -

" No person shall erect or re-erect any building within the limits administered by a local authority, except in accordance with plans, drawings, and specifications approved in writing by the Chairman."

The relevant parts of section 13 are worded as follows : -

" 13.    (1) Any person who shall-

(a) commence, continue, or resume building operations in contravention of any provision of this Chapter; (b), (c) and (d)    .   .  .   .

(e) fail to remove or pull down any building or alteration to any building erected or made for a temporary purpose under a permit issued by the Chairman, within the time specified in such permit; or
(f) . . . . . .
or if such person cannot be found, the owner of the building in question, shall be liable on summary con­viction to a fine not exceeding three hundred rupees, and to a daily fine of twenty-five rupees for every day on which the offence is continued after conviction."

" Building " is defined in section 2 as follows : -

" building' includes the outhouses or other appurtenances of a building."

Mr, Gratiaen, on behalf of the appellant, has invited my attention to the fact that special provision is made for the control of the building of masonry boundary walls in section 108 He also refers to the definition of " building " in section 2 of the District" Councils Ordinance (Cap. 195) -This definition states that " building " includes any house, hut, shed or roofed enclosure, whether used for the purpose of a human habitation or otherwise, and also any wall. Section 87 of the Urban Councils Ordinance (No. 61 of 1939), makes special provision for licences for boundary walls. Having regard to the wording of these provisions Mr. Gratiaen contends that the definition of "building" in section 5 does not include "a wall". Mr. Jayasuriya on the other hand maintains that the words " other appurtenances of a building " must be given a wide meaning and would include any wall erected within the premises. In this connection he refers to the 2nd edition of Norton on Deeds at p. 274 where it is stated that in a conveyance of land the word "appurtenant" must be given a wide interpretation. But I do not think it follows that the same inter­pretation should be given to the word " appurtenances " when used in the penal provisions of a statute as is given to this word when it occurs in a conveyance. Mr. Jayasuriya also cited the case of Bowes v. Law [1 (1870) L. R. 9 Equity Cases, 636.], in which it was held that the building of a wall to the height