Chairman U. C. Matara., V. Abeysuriya

1950 Present: Nagalingam J.

THE CHAIRMAN, URBAN COUNCIL, MATARA, Appellant, and

 ABEYSURIYA, Respondent

S. C. 998-M. C. Matara, 15,977

Housing and Town Improvement Ordinance (Cap. 199)-Sections 7, 13, 14 Buildings -Erection of new building-Contravention of statute-Mandatory order for demolition-Urban Councils Ordinance, No. 31 of 1939, Section 87-Refusal of mandatory order-right of appeal.

The accused erected a new building within a limit of twenty-five feet from the centre of a road, in contravention of the provisions of section 87 of the Urban Councils Ordinance, No. 31 of 1939, and section 13 (1) of the Housing and Town Improvement Ordinance. The Chairman of the Urban Council was not agreeable to granting any concession to the accused in regard to the demolition of the building.

Held, that the Court was bound to issue a mandatory order under section 13 (2) of the Housing and Town Improvement Ordinance for the demolition of the building. It is not open to a Court to take upon itself the task of permitting a breach of an enactment on grounds that an accused person would suffer hardship or loss.

Held further, that a person dissatisfied with an order of the Magistrate refusing to make a mandatory order in terms of section 13 (2) of the Housing and Town Improvement Ordinance is entitled as of right to appeal to the Supreme Court.

APPEAL from a judgment of the Magistrate's Court, Matara.

 Ivor Misso, for the applicant appellant.

D. S. Jayawickrama, for the accused respondent.

Cur. adv. vult.
 

 December 14, 1950. NAGALINGAM J.-

This is an appeal by the Chairman of the Urban Council of Matara from a refusal of the Magistrate to make a mandatory order in terms of section 13 (2) of the Housing and Town Improvement Ordinance (Cap. 199) to compel the respondent to demolish a building erected in contravention of the provisions of sub-section 1 of the same section.

A preliminary objection was taken by Counsel for the respondent to the appeal on the ground that no appeal lay from such an order. The contention was based upon the terms of section 14. The section, however, directs that building operations shall be suspended notwithstanding

any appeal that may be preferred against any conviction or order made under either of the two sections 12 or 13. The order referred for is an order directing the removal or alteration of the building erected contrary to the provisions of the' ordinances This section, I do not thinks defines any right of appeal from an order made by the Magistrate. The general right of appeal that is conferred by section 338 of the Criminal Procedure Code is not in any way affected by section 14 of the Housing and Town Improvement Ordinance. A party dissatisfied with any final order of a Magistrate is under the section of the Criminal Procedure Code entitled to appeal to this Court. The order complained of is a final order and is one which is covered by section 338, and a party dissatisfied with the order of the Magistrate refusing to make a mandatory order is entitled as of right to appeal to this Court. .

The appeal is based on the ground that the learned Magistrate has erred in refusing to make the mandatory order applied for. It is urged that where it is not possible to make any alterations in the building so as to bring it in accordance with law there is no alternative but to direct the demolition of it, where a conviction has been entered against the accused person under section 13 (1) of the Ordinance. Under section 7 of the Housing and Town Improvement Ordinance an imperative duty is  placed on the Chairman not to. approve any plan for a building which may conflict with the provisions of the Ordinance, or of any. other Ordinance. Under section 87 of the Urban Councils Ordinance, No. 31 6f'1939, express provision is made that notwithstanding anything con tained in the Housing and Town Improvement Ordinance it s

Click Here to Read the rest of this document