SCC v Wati [2007] FJMC 28; Criminal Case No 1895 of 2005 (27 November 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1895 of 2005

S C C

V

VIMLA WATI f/n Binessar Singh

Before Ajmal Gulab Khan Esq
Resident Magistrate

Date of Hearing: 16/10/07
Date of Judgment: 27/11/07

Prosecution: Ms Dewan
Defence: Mr Samad

JUDGMENT

The accused Vimla Wati has been charged under S27 1(b) and 27 (5) of the Town planning Act for failing to comply with notice to stop using her residential ‘B’ ground land as a boarding house without approval.

The facts show it’s a residential ‘B’ Zone at 24 Burerua Street on Ct 11900. There is admission by the defendant that it’s occupied by students and doctors who are in 7 flats occupied by some 40 – 50 people. Out of total 40 are students. The title has 2 lots. There is no approval of S.C.C. for a boarding house and no more than 2 flats would be approved on each lot.

The lot are not connected to a sewer line. There is a letter of Director of Sewer that the area is earmarked to be sewered some time in 2008.

The defence says there is no definition of a boarding house in the byelaws or the Town Planning Act and the occupiers were mere tenants. He says its’ let to 15 tenants who have sublet it to students.

The general provisions of the Suva City byelaws made under the Town Planning Act (11/99) defines a boarding House as "a development of a predominantly residential nature which does not hold - - - any type of liquor licence and in which lodging is provided for persons other than members of the family of the occupier ---"

In his defence accused denied she ran a hostel. She said on one lot of 800m2 3 flats could be built so in 2 lots more than 6 flats could stand in an area of 2000m2 He also says sewer connection would be done soon.

The issue is whether the prosecution has proved beyond reasonable doubt that the defendant has failed to comply with notice of using his land at 24 Burerua St. illegally without approval of the council. It’s let and sublet by defendant to as many as 50 persons. It is not disputed that the premises is used for residential housing having 7 flats.

Under residential ‘B’ zone any boarding house or flats to lease is a conditional development. The defendant admits the council only permitted 2 flats on a lot due to lack of sewer connection.

Although sewer may be connected soon the fact remains its land area without sewer connection at present.

As such the development remains illegal use due to lack of council approval. Notice was given on 19th May 2005. On inspection in July 2005 it was still used by excessive numbers as a residence. This was not permitted by the council.

I am satisfied that the prosecution has proved that the defence was given notice by council to comply with the land use but has failed to do so.

The defendant is found guilty as charged.

Dated this 27th day of November 2007.

Ajmal G Khan
RESIDENT MAGISTRATE