Corea v. The Urban Council, Kotte
1958Present : Sansoni, J.
G. C. A. COREA, Petitioner, and THE URBAN COUNCIL,
KOTTE, et al., Respondents
S. C. 162—In the matter of an Application for a Writ in thenature of a Writ of Mandamus
Electricity A.ct, No. 19 of 1950—Duty of licensee to supply electricity—Enforceability
by writ o/ mandamus—Sections 12 (1), 13, 15, 33 (1), 64, 73, 74.
Section 33 (1) of the Electricity Act casts a duty upon a licensee, whenhe is required to do so by the owner or occupier of any premises situated within150 feet from a distributing main, to give and continue to give a supply ofenergy for those premises and to furnish and lay any service lines that may benecessary for the purpose of supplying that energy.
The duty cast upon the licensee is enforceable by M andatmis when therehas been a refusal to carry it out. A criminal prosecution under section 64is not an alternative legal remedy to Mandamus, and certainty is not as-convenient, beneficial or effectual as Mandamus.
SANSONI, J.—Corea v. The Urban Council, JKotte
PPLICATION for a writ of mandamus.
U. Wanigatunga, with. Hilmy Mohideen, for Petitioner.
A. H. C. de Silva, Q.C., with A. K. Premadasa, for 1st and 2ndRespondents.
Stanley Perera, for 3rd and 4th Respondents.
Cur. adv. volt.
November 18, 1958. Sansoni, J.—
The petitioner who is the owner of premises bearing assessment No.633/4, Cotta Road, ICotte has applied for a writ of Mandamus on the 1stand 2nd respondents directing them to give and continue to give a supplyof electrical energy to the said premises and to furnish and lay supplylines necessary for this purpose from the supply main on Mission Road.The 1st respondent Council is the licensee appointed under the provisionsof the Electricity Act No. 19 of 1950 for that area, and the 2nd respondentis its Chairman. The 3rd and 4th respondents have been joined as partiesto give them notice of the application but no relief has been claimedagainst them in these proceedings. They are the owners of premiseswhich intervene between Mission Road and the petitioner’s premises.
The petitioner’s premises are situated at a distance of 50 feet from thedistributing main on Mission Road. He applied to the 1st respondent fora supply of electrical energy to be carried over the premises belongingto the 3rd and 4th respondents, and the 2nd respondent gave notice to the3rd and 4th respondents under section 15 (2) of the Act that work wouldbe done affecting their premises. Objections were lodged by the 3rdand 4th respondents with the Government Agent against the drawing ofservice lines in the manner contemplated.
An inquiry was held by the Government Agent who, by his order dated12th February 195S, authorised the 2ndrespondent to draw an electricalservice main over the premises of the 3rd and 4th respondents along aparticular route for the purpose of supplying electricity to the petitioner’spremises. Under section 15 (9) the decision of the Government Agent isfinal, and, seeing that it was the 2nd respondentwho gave notice that heintended to draw the service lines over the premises of the 3rd and 4threspondents, I should have thought the decision of the Government Agentallowing the 2nd respondent’s application would have concluded thematter so far as these parties were concerned. Apparently the 2nd res-pondent changed his mind on the 14th of February 1958, for he wrote tothe Government Agent on that day recommending that the lines be laidalong Cotta Road to the petitioner’s premises at a cost of Rs. 3,000instead of over the premises of the 3rd and 4th respondents at a cost ofRs. 950. His reasons as set out in that letter are that it would be in theinterests of the rate payers in the area to do so, and that there was strongopposition from the 3rd and.4th respondents. He added in that lettor »
SAJNSONI, J.—Corea v. The Urban Council, Kotte
** I cannot see any reason as to why I should trespass on private propertyagainst the wishes of the land owners to relieve an individual of his ex-penses for an electricity connection to his premises ”. Since the decisionof the Government Agent had already been made, and made after takinginto account the objections of the parties affected and the alternativeroute, it was idle for any of the respondents to raise further objections^after that decision was made. But this attitude of the 2nd respondent-has a bearing on the question whether there was a refusal on his part togrant the petitioner’s application for a supply of electrical energy.
The 2nd respondent has stated in his affidavit that on 8th March 195 8-he wrote to the petitioner regretting that he could not consider his appli-cation for a supply of electricity till a final settlement was reached in his-correspondence with the Government Agent. On 25th March 1958 hereturned to the petitioner the money order for Its. 916/14 which had beendeposited by the petitioner as charges for effecting the work, stating thathe was unable to accept it pending the conclusion of his correspondencewith the Government Agent. The refusal of the 2nd respondent to supplyelectrical energy is put beyond doubt in. paragraph 16 of his affidavit wherehe states that he is not bound to give the petitioner a supply of electricalenergy from Mission Road, and in paragraph 18 where he expresses hiswillingness to supply energy from Cotta Road. I think it is impossiblein the face of these facts to uphold the argument that the present appli-cation of the petitioner was premature. There has been a clear refusalto supply energy over the premises of the 3rd and 4th respondents.
Nor can I accept the argument that the Government Agent’s decisionbound only the 3rd and 4th respondents and imposed no duty on the1st and 2nd respondents. That decision is made final by section 15 (9}and it is final so far as all the parties involved in the inquiry are concerned,and I cannot accept the implied suggestion that the 2nd respondent canask the Government Agent to hold as many inquiries as he demandswithout being bound by the orders made on them.
Another objection which was urged was that the Act provided analternative remedy and no writ should issue. The alleged alternativeremedy is the prosecution of the 1st respondent Council as a licensee whomade default in supplying energy to the petitioner and thereby com-mitted an offence punishable under section 64 of the Act. In a prose-cution of a licensee for an offence, section 73 provides that where thelicensee is a local authority the Court may, in lieu of imposing a fine, takeaction under section 74, and that section provides that where a licenseewho is a local authority is charged with any offence under the Act, and thecharge is found to be proved and the default or contravention consti-tuting the offence is likely to prejudice the safety and convenience of thepublic, the Court may without proceeding to conviction report such de-fault or contravention to the Minister. The Minister may then followa certain course of action if it appears to him to be in the public interestto do so. Sections 73 and 74 would not, in my view, be applicable in thiscase because the 'default complained of by the petitioner does not pre-judice the safety and convenience of the public. It may well be open tothe petitioner to prosecute the 1st and/or 2nd respondent even at this
SANSONI, J.Corea v. The Urban. Council, Kotte
stage, but he is more interested, naturally, in obtaining a supply of elec-tricity to bis premises, and the institution of criminal proceedings willnot avail him in that respect. I do not think that a criminal prosecutionunder section 64 is an alternative legal remedy to Mandamus, and cer-tainly it is not as convenient, beneficial or effectual as the remedy he now-seeks.
A further objection taken was that there was no duty on the part of the1st and 2nd respondents to supply electrical energy because there wasno provision in the Act for compensation to be paid to those who maybe adversely affected by the laying of service lines. It was submittedthat the Court would not order the 1st and 2nd respondents to interferewith the proprietary rights of the 3rd and 4th respondents, since nocompensation is payable when the service lines are laid over privateproperty. The argument seems to spring from an erroneous interpretationof sections 12, 13 and 15. Section 12 (1) reads : “ A licensee shall carryout all works necessary for or connected with the generation, transmission,transformation, distribution and supply of energy within such period orperiods as may be specified in the licence in respect of each such work **.Section 13 provides that before a licensee commences any of the worksenumerated in that section he must submit for the approval of the ChiefElectrical Inspector certain specifications, plans and drawings. It istrue that the laying of lines other than service lines is one of the worksmentioned, but section 13 in no way controls the operation of section 12.In section 15 there is definite provision for payment of compensation forany disturbance, disability or damage caused to the owner of a land whenthe works referred to in section 12 are carried out. In my view theentire argument is built up on a wrong premise, namely, that the workscontemplated in section 12 (1) do not include the laying of service lines,whereas the provision for payment of compensation contained in section15 covers all work carried out by a licensee under section 12 including thelaying of service lines.
The basis of the petitioner’s application is section 33 (1) which casts aduty upon a licensee, when he is required to do so by the owner or occu-pier of any premises situated within 150 feet from a distributing main,to give and continue to give a supply of energy for those premises and tofurnish and lay any service lines that may be necessary for the purpose ofsupplying that energy. There is a duty cast upon the 1st respondentby the Act and it is a duty which the petitioner is entitled to enforce byMandamus when there has been a refusal to carry it out. I sec nothingin section 33 which requires the premises of the petitioner for which energyis to be supplied to adjoin the land over which the distributing main runs, I
I allow the application of the petitioners and direct that a writ of Man-damus should issue on the 1st and 2nd respondents as prayed for. The-petitioner is entitled to his costs against all the respondents, becausethe 3rd and 4th respondents also appeared by counsel and objected to thoissue of the writ.
G. C. A. COREA, Petitioner, and THE URBAN COUNCIL , KOTTEet al , Respondent