ILLEGAL CONSTRUCTION : the Appeal Court upholds the pulling down order of the second floor

In the oft-quoted words of the Court in Gopee, this Court cannot in the circumstances “condone that appellant be permitted to stay in a perpetual state of illegality” by not making a pulling down order. We therefore hold that there was ample evidence before the learned Magistrate warranting the making of an order under section 8(2) of the Town and Country Planning Act and that she properly exercised her discretion in ordering the offending second floor to be pulled down. Grounds (iii) and (iv) therefore fail as well.  

All grounds of appeal having failed, the appeal is dismissed, with costs. We uphold the conviction but reduce the fine to Rs 750 for the reasons given above. The order of the learned Magistrate under section 8(2) of the Town and Country Planning Act is amended so that the appellant is ordered to restore things to the state in which they were before the unlawful development by pulling down the second floor within three months of this judgment.” It is the judgment given by the Appeal Court having on the Bench Justices O. Bobby Madhub and Aruna Devi Narain on 6th September 2018. Appellant, Maiharaub Munir Mohammad, has appealed against the judgment of the District Court of Bambous pronouncing  in favour of the  Respondent,  The District Council of Black River for a pulling down order. The appeal was heard in the presence of the Director of Public Prosecutions sued as Co-Respondent.

The particulars of the offence with which the appellant, then accused, was charged in the Court below were that he had carried out the construction of a second floor without having obtained a Building and Land Use Permit from the District Council of Black River. The accused had pleaded not guilty to the charge and was represented by Counsel at the trial, as was the respondent. In her judgment, the Magistrate took into account the evidence on record and the submissions of Counsel.