1956 Present Weerasooriya, J., and H. N. G. Fernando, J.

J. B. L. KARUNARATNE (Chairman, Town Council,
 Kochchikade), Appellant, and W. W. FERNANDO
et al.. Respondents

S. C. .54 (Inty.)-D. C. Negombo, T. C. I

Housing and Town Improvement Ordinance (Cap. 199)-Befssal by Chairman to-approve building plans-Scope of right of appeal By-laws.-Sections 5, 7, 16, 86.

 By-laws 3 and 4 enacted under the enabling powers conferred by section 28 of the Housing and Town Improvement Ordinance provide:-

"3. . . no person shall within a residential area, . . . . except with the written permission of the Chairman erect a building for the purpose of being used as . . . . a shop. .  . . .

4. Permission to erect a new building for any purpose set out in by-law 3 shall be refused by the Chairman unless the following conditons are fulfilled .

Held; (1) There is no right of appeal to the Tribunal of Appeal against the refusal of the Chairman to grant written permission under by-law 3.

(ii) Where application is made for the approval of plans for the erection in a residential area of any building referred to in by-law 3, the Chairman is bound

under section 7 of the Housing and Town Improvement Ordinance to refuse approval of the plans, unless written permission for the erection of that building has already been or is simultaneously granted in terms of the by-laws.

(iii) Every refusal to approve plans is appealable to the Tribunal of Appeal; but where the proposed building is one for the erection of which written permission under the by-laws is required, the appeal must necessarily fail if such permission has not in fact been granted.

APPEAL from an order of the District Court, Negombo.

S. Nadesan, Q. C, with K. Shinya and T. Gunasekera, for the petitioner.

D. S. Jayawickreme, Q. C, with Stanley Perera, for the 2nd respondent.

Cur. adv. vult.

March 27, 1956. H. N. G. FERNANDO, J.-
 
The 2nd respondent to this appeal (whom I will call the " applicant ") applied to the Chairman of the Town Council of Kochchikade for the approval of plans, drawings and specifications for the erection of a building within the administrative area of the town. His application was in the Form ordinarily used for the purposes of section 5 of the Housing and Town Improvement Ordinance (Cap. 199), which provides that "no person shall 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 building proposed to be erected was described in the application as a "Mobiloil Service Station ". The Chairman in reply informed the applicant that the erection of a service station " cannot be approved as the site is in a residential area".

There are in force for the town of Kochchikade "zoning " by-laws enacted under enabling powers conferred by section 28 of the same Ordinance, and it is conceded that the site on which the applicant desired to erect the service station is in a residential area and that a petrol service station is a" shop "within the meaning of the relevant by-laws:-

3. . . . . person shall within a residential area, . . . . .except with the written permission of the Chairman erect a building for the purpose of being used as  . . . . a shop . . . . . . .

4. Permission to erect a new building for any purpose set cut in by-law 3 shall be refused by the Chairman unless the following conditions are fulfilled: -

(Conditions, four in number, are not here reproduced).

The applicant appealed against the decision of the Chairman to the District Judge who is by section 86 of the Ordinance the Tribunal of Appeal for the area, a right of appeal being conferred by section 16

upon any person "aggrieved by the refusal of the Chairman to approve any plan, drawing or specification, or by any requirement or order of the Chairman".

It was argued on behalf of the Chairman before the Tribunal