AKBAR J.—Daniel v. Raymond.
1932Present : Akbar J.
DANIEL v. RAYMOND.
955‘—M. C. Colombo, 5,179.
Municipal Council—Construction of culvert—Drain alongside a house—Duty of occupier or owner—Building of new drain—Obligation of owner—Municipal Council Ordinance, No. 8 of 1901, chapter 22.
By-law No. (1), passed under chapter 22 of the Municipal CouncilOrdinance, No. 8 of 1901, applies where a drain has been made or excavatedalongside a house, adjoining the street; in which case the obligationis cast upon the owner or occupier not to pass over it, except by meansof a bridge built according to the instructions of the Chairman.
Where the Municipality has constructed a new drain by the side of anexisting drain, it has no power to call upon the owner or occupier toconnect the ends of the new drain and build a bridge over it.
PPEAL from a conviction by the Municipal Magistrate of Colombo.
Amarasekera. for appellant.
Choksy, for respondent.
May 12, 1932. Akbar J.—
This case came up originally before me on February 22, 1932, but it waspostponed by me to enable counsel for the Municipality to get furtherinstructions. This appeal is concerned with the correct interpretation ofa by-law, namely, by-law No. 1, chapter 22, of the by-laws proclaimed onOctober 12, 1905. Although the by-law is a long one, yet the meaningappears to be clear. As I understand the by-law, the owner or occupierof a house adjoining a street by the side of which a drain has beenconstructed, is prohibited from constructing or placing over any such drainany bridge, platform, building or other structure except with the writtenpermission of the Chairman and subject to such conditions and directionsas the Chairman may impose. Then the by-law goes on to say that suchowner or occupier is to maintain such bridge, &c., in good order to thesatisfaction of the Chairman. The penal part of the by-law provides thatif any such person has access to his house without such bridge, &c., or bysome bridge, &c., not constructed as aforesaid, the Chairman, may givenotice forthwith to the owner to construct or place or alter the same.The Chairman may also, in the event of the owner or occupier failing to,
AKBAR J.—Daniel v. Raymond.
maintain in good order such bridge or structure or the drain thereunder,notice the owner or occupier to put the same in order, and if there is defaulton the part of the owner or occupier to observe the terms of the noticewithin thirty days of the service of the notice, the owner or occupier is to bedeemed guilty of an offence. This is the whole by-law. It will thereforebe seen that it only applies where a drain has been made or excavated bythe side of a house adjoining a street. The obligation is cast on the owneror occupier not to pass over such drain except by means of a bridge, &c.,built according to the directions of the Chairman. There is a furtherobligation on the owner or occupier of such a house to build such a bridgeover such a drain upon notice by the Chairman or to alter the same on thedirections of the Chairman. Further, the owner is liable upon notice tokeep the bridge and the drain thereunder in good order.
Now, what are the facts in this case as found by the MunicipalMagistrate? There was a culvert in existence for a considerable timepast giving access to the premises of the accused. This culvert carriedthrough it the water coming down an unbuilt drain by the side of Kanattaroad. The evidence shows that this culvert and the unbuilt drainwere therefore about thirty years past. The Municipality decided to builda new drain, and a drain of 15 inches diameter was built of concrete, butthis new drain was not built in the centre of the old drain, but on the sideof it nearest the boundary walls of the premises abutting the street. Theresult was that the water from the new drain could not flow through theold culvert because the drain and the culvert were not in line. All theseare facts as found by the Municipal Magistrate. The judgment proceedsas follows:—“In other words, were the Municipality justified in puttingthe new drain out of the line of the culvert openings and then calling uponthe accused to bring his culvert into line and build it anew Thelearned Municipal Magistrate then goes on to say after inspecting theplace that the new drain was undoubtedly an improvement on the oldunbuilt drain and that the authorities had built the drain in a reasonableposition. According to the Magistrate “ The only question that remainsis whether the existing culverts are now adequate for the new drain.Obviously they are not because, as I have shown, their openings are not inline with the new drain. There is no question that the Chairman has thepower to compel the accused to supply new culverts in such a case.” Ido not think the learned Magistrate has applied his mind to the real pointarising in the case. We are not concerned with the question whether theMunicipality has acted reasonably or not in building the new drain. Thelearned Municipal Magistrate found that the new drain built by theMunicipality was built at one edge of the old unbuilt drain and that thetwo ends of the new drain were left near the two openings of the culverts.The Municipal Engineer did not build the new drain right through, butcalled upon the accused to connect the two ends of the new drain nearthe culvert openings and build a bridge over it.» As I read the by-law,there is no obligation on the part of the owner or occupier to build .a partof a drain or to connect the two ends of a drain'and to build over such adrain. There was an old unbuilt drain, and over it there was a bridge inexistence for the last thirty years. There was nothing wrong with thisunbuilt drain, but the Municipality built a better drain side by side with
Nachipillai v. Velupillai.
the old drain not exactly in line with it and left the two ends near thebridge over the accused’s land unconnected. Can the Municipality underthe by-law stated by me call upon the owner not only to build a bridgebut also that part of the drain thereunder? I do not think they havethis power under the by-law. There can be no doubt of the facts statedby me above, because the notice P 1, which was served on the accused andfor a breach of which he was convicted, required the accused “ to constructtwo proper culverts of concrete pipes 15 inches in diameter, within fourteendays of the service of this notice ”. Mr. Choksy admitted that “ culvert ”meant an arched drain of bricks or masonry carried under a road, railway,or canal for the passage of water. The word “ culvert ” is not used in theby-law at all, and as I have pointed out there is no obligation on the owneror occupier to build any part of any drain. The only obligation withregard to a drain is that in the case of an existing drain under a bridge, heis only to put the same in order, on notice by the Chairman. The accusedis not charged with interfering with the old unbuilt drain which has existedfor thirty years. If the Municipality wish to get further powers so as tocatch up this particular case they can easily amend the existing by-lawNo. 1 of chapter 22. The accused has been charged in these criminalproceedings and fined a sum of Rs. 50. In my opinion this conviction iswrong and I would set it aside and acquit the accused.
DANIEL v. RAYMOND