 ACKBARKHAN F. v MUNICIPAL COUNCIL OF VACOAS-PHOENIX & ANORÂ
2025 SCJ 103
Record No. 9664
THE SUPREME COURT OF MAURITIUS
In the matter of: –
Farouk Ackbarkhan
Appellant
v
1. Municipal Council of Vacoas-Phoenix
2. The Director of Public Prosecutions
Respondents
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JUDGMENT
This is an appeal against a sentence of the then learned Magistrate of the District Court of Upper Plaines Wilhems ordering the appellant (then accused) to pay a fine of Rs. 1000 together with Rs. 100 as costs and to restore the construction as per the initially approved plans attached to the Building and Land Use Permit (hereinafter referred to as âBLUPâ) issued in 2012. She also ordered that the restoration be carried out within a delay of three months.
There were initially three grounds of appeal but later, grounds 2 and 3 were dropped. Hence, the only ground of appeal is against the restoration order imposed upon the appellant because it is contended that it is manifestly harsh and excessive, wrong in principle, disproportionate and constitutes an inhuman punishment inasmuch as there is no evidence which warrants the imposition of such an order and the pulling down of part of the appellantâs residence. 2
We find it relevant to set out the facts of the present case. On 31st October 2017, during a site visit, Mr. K. Mungur, a Building Inspector of the Municipal Council of Vacoas-Phoenix, found that the appellant was carrying out an unlawful development on the ground and first floors contrary to the initially approved plans and in breach of the conditions attached to the BLUP issued to him under Section 117 of the Local Government Act on 7th June 2012. The statutory distance of 3 feet from the boundary line was not respected as the construction was being carried out on the boundary line itself.
On the same day, Mr. Mungur caused a Notice to be served on the appellant to stop the construction works, to pull down the unlawfully constructed parts and to provide his explanations within 7 days. As the appellant failed to comply with the said Notice, he was served a Notice of intended prosecution dated 13th November 2017.
The appellant was thus prosecuted for having unlawfully carried out a development in breach of conditions attached to the BLUP issued to him, in breach of Section 8(1) of the Town and Country Planning Act 1954. In the light of the unrebutted evidence adduced by the Prosecution and the guilty plea entered by the appellant, the learned Magistrate found that the case was proved beyond reasonable doubt. She found the appellant guilty as charged on 7th December 2022.
It is apposite to note that the Prosecution moved for a restoration order in the light of the evidence on record to the effect that some 14 m2 of the extension were found on the mandatory statutory distance.
Following a pre-sentence hearing, the learned Magistrate, on 7th February 2024, ordered the appellant to pay a fine of Rs. 1000 together with Rs. 100 as costs. She also ordered him to restore the construction as per the approved plans attached to the BLUP issued to him in 2012 within a delay of three months.
The gist of the submissions of learned Counsel for the appellant, Mr. Bhanji Soni, is that the restoration order constitutes a disproportionate and inhuman punishment given that such an order would have a devastating impact on all the residents of the house. The family members may be left without shelter during the demolition process, which in itself, is a collective punishment and humiliation. Further, it will impose a significantly heavy burden on the appellant who has to pull down part of his residence almost six years after it has been built. 3
Learned Counsel added that such an order is draconian in nature and the trial court has failed to consider the safety of the remaining construction, the financial impact on the appellant, the environmental aspect of such demolition, the prejudice that would be caused to surrounding buildings and neighbours and the practicality of the situation. He contended that the learned Magistrate failed to give any reason as to why the pulling down order was absolutely and inevitably warranted.
Mr. Bhanji Soni further argued that the plans produced before the trial court show the extension, but they do not precisely point out to those parts found on the boundary line. In his view, there cannot be a valid restoration order in the absence of a precise plan indicating clearly the âoffending partâ.
Mr. Bhanji Soni also argued that the imposition of a restoration order is disproportionate as there was no evidence that the offending construction was causing prejudice to the neighbouring owners. He was of the view that a restoration order should be imposed only in appropriate cases, namely, where there is a definite and clear interference with third partiesâ property which cannot be remedied other than by a pulling down order. He, therefore, submitted that the restoration order be quashed for being manifestly harsh, excessive and disproportionate. He also argued that a fine of Rs. 1000 only is highly inadequate for such a serious violation of the law.
It is worth noting that learned Counsel rightly conceded that the appellant was wrong to have undertaken construction works without proper authorisation and a valid BLUP.
Relying on the case of Municipal Council of Port Louis v Verte M E [2013 SCJ 7], learned Counsel for the respondent No. 1 submitted that a restoration order in the present matter is absolutely necessary given that failure to comply with the statutory distance of 3 feet is considered to be of absolute illegality. He emphasised that the personal circumstances of the appellant are irrelevant and should not be taken into account as this necessarily will open a floodgate for illegal construction.
He added that the illegal construction relates to approximately 14 m2 out of a total of 188 m2 and it constitutes simply an extension of the property. In his view, this extension can be easily removed without any adverse impact. He further pointed out that the appellant has pleaded guilty to the charge implying that he was well aware of the part he has illegally constructed. 4
Relying on the decisions of Denise Oraganon Savy v The Municipal Council of Vacoas/Phoenix & Anor [2024 SCJ 403] and District Council of Black River v Ujoodha A [2022 SCJ 247], learned Counsel submitted that sufficient evidence was adduced before the trial court as regards the illegality of the development works. He argued that the BLUP, the initial plan of the house, the plan which included the unlawful construction and the notices and warnings served on the appellant were all produced. The Building Inspector also deponed to that effect and he produced a sketch showing the illegal development works carried out by the appellant [Document B]. Learned Counsel observed that the latter never objected to the production of those documents and submitted that the appellant cannot now, on appeal, take issue with the nature of the evidence placed before the trial.
Learned Counsel for the respondent No. 1, therefore, concluded that the present appeal be dismissed with costs.
For her part, learned Counsel for the respondent No. 2 submitted that the court record shows that sufficient evidence pertaining to the gravity of the illegality of the construction was adduced. The evidence clearly reveals that the appellant knew fully well that he was going beyond the approved plans and this was admitted by the appellant himself. This is why the appellant tried to remedy the situation through a second application for BLUP in 2019, but it was declined in view of the illegality of the situation. Learned Counsel submitted that in the circumstances and in the light of the evidence, a restoration order was fully warranted so that the sentence meted out cannot be deemed manifestly harsh and excessive nor wrong in principle and disproportionate. The present situation relates to an absolute illegality as explained in Verte (supra), Goolamhossen N B v The District Council of Black River [2018 SCJ 211], Maiharaub M.M. v The District Council of Black River [2018 SCJ 284] and Savy (supra) and the learned Magistrate has duly exercised her discretion in ordering the restoration order. Learned Counsel, therefore, concluded that the present appeal be set aside.
We have considered the evidence on record and the submissions.
We find that the learned Magistrate carefully considered the evidence before her and relying on the unchallenged evidence of the Building Inspector, she found that the appellant was guilty. We note that the Building Inspector explained that the appellant was carrying out an unlawful development on the ground and first floors contrary to the approved plans and in breach of the conditions attached to the BLUP issued to the appellant under Section 117 of the Local Government Act on 7th June 2012. To add insult to injury, the said construction was 5
being carried out on the boundary line itself without respecting the legal statutory distance of 3 feet from the boundary line.
In the light of the landmark judgment of Verte (supra), it cannot be disputed that the present circumstances disclose a case of absolute illegality justifying the granting of a restoration order.
We do not agree with the submissions of learned Counsel for the appellant that the learned Magistrate did not consider whether such an order was practicable in the circumstances. It is only on appeal that he put forward a number of factors to support his contention but, unfortunately, these were not canvassed before the trial court.
We are of the considered view that the present case should be distinguished from the case of Koonjbeeharry P. v. District Council of Black River & Anor [2023 SCJ 466] where there was confusion in the evidence and the court record regarding the âoffending partâ that had to be pulled down. In the present matter, the âoffending partâ is clearly explained. It is of an area of 14 m2 of the whole extension and it is that part which encroaches on the statutory distance. Therefore, the order minimally impairs on the property of the appellant. This was not challenged by the appellant. We note that the second application made by the appellant in 2019 catered for the unapproved construction which means that the appellant was aware about which part was in breach of the approved BLUP. The behaviour of the appellant shows that he acted in complete disregard of the decision of the respondent No.1. As such, he cannot now seriously contend that the decision of the learned Magistrate to grant a restoration order is against the principle of proportionality. In our view, the restoration order granted is legitimate and important and it fits the legal harm caused by the appellant in the circumstances.
The decision of the learned Magistrate to grant the restoration order in the absence of any evidence to the effect that such an order will or may not be practicable or may even be dangerous or detrimental to the whole structure or to neighbouring buildings, cannot be impeached. It is not because the appellant lives there with his family that such an order cannot be granted. We take note that at the time the Building Inspector visited the site, the construction was still under way and when informed by way of Notice of the breach, the appellant did not stop the construction and did not take any remedial action; instead, he proceeded to complete the construction of the âoffending partâ. We agree with learned Counsel for the respondent No.1 that the personal circumstances of the appellant should not be considered as this could encourage the flouting of the law and open a floodgate for illegal construction all over the island. Indeed, the amendment to the law in 2018 shows the intention 6
of the legislator on the matter as the new provisions provide for a mandatory pulling down order in such cases as the present one.
A pre-sentence hearing was carried out. The appellant was already aware, at this stage, that the respondent no.1 was moving for a restoration order. No evidence was adduced to show the learned Magistrate that such an order would not be practicable in the circumstances. As rightly pointed out by learned Counsel for the respondent No.1, the appellate court cannot, on appeal, consider issues which were not even canvassed before the trial court. We cannot but agree because this would bring about uncertainty for litigants and no finality in the proceedings.
Learned Counsel Mr. Bhanji Soni submitted on the fact that the new legal provisions on the matter should benefit the appellant in the sense that the more lenient law should apply. We fail to follow him on that point. The new provisions are in fact more stringent as regards demolition orders because now, it provides that the court âshall, in addition to the penalty provided âŚorder the offender to pull down, at his own expense and within 30 days of the order, the development works.â (vide Section 127G (2) of the Local Government Act).
For all the above reasons, we dismiss the appeal with costs. We order the appellant to restore the construction as per the initially approved plans attached to the Building and Land Use Permit issued to him on 7th June in 2012 by 30th June 2025.
S.B.A. Hamuth-Laulloo
Judge
P.M.T.K. Kam Sing
Judge
18 March 2025
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Judgment delivered by Hon. S.B.A. Hamuth-Laulloo, Judge. 7
For Appellant: Mr. S. N. Sumodhee, Attorney at Law
Mr. G. Bhanji-Soni, of Counsel
For Respondent No.1: Mrs. A.K. Ghose, Attorney at Law
Mr. R. Appaya, of Counsel together with Miss R.M. Sumaruth, of Counsel
For Respondent No. 2: Ms. S. Jeetoo, Senior State Attorney
Mrs. G. Rampoortab, Senior State Counsel together with
Ms. O.R. Hotentote, Temporary State Counsel