DE KRETSER, J.—Fernando v. Ratnayake
1972Present: de Kretser, J.
Mrs. V. D. FERNANDO, Appellant, and S. W. RATNAYAKE(Inspector, Municipal Engineer’s Department, Colombo), Respondent
S. C. 396/70—M. M. C. Colombo, 39936
Municipal Councils Ordinance (Cap. 252)—Sections i, 40, 57, 267, 268, 272, 320—Colombo Municipal Council—Trees overhanging private premises—Incompe-tence of Council to cut them down—By-law 47 of Colombo Municipal CouncilBy-laws—Invalidity.
In Chapter 8 of the Colombo Municipal Council’s By-laws, that portion ofBy-law 47 authorising the Municipal Council to cut down trees overhanging,and likely to prove dangerous to, purely private premises is ultra vires.
.A.PPEAL from a judgment of the Municipal Magistrate’s Court.Colombo.
Tharmalingam, for the accused-appellant.
Sinha Basnayake, for the complainant-respondent.
Cur. adv. vult.
January 3, 1972. de Khetseb, J.—
Mr. R. D. B. Jayasekera, Acting Municipal Magistrate found the Accused-Appellant guilty of having failed to cut down a coconut tree standingin the premises owned by her after service of notice from the MunicipalCouncil, Colombo, requiring her to cut it down in terms of By-law 47Chapter 8 of the Colombo Municipal Council’s By-laws and therebycommitting an offence punishable under By-law 2.
He fined her Rs. 15 in default one week’s R.I. and the Appeal isagainst this conviction. The first point urged by Counsel for the Accused-Appellant is that the only remedy for a breach of the provisions ofRule 47 of Chapter 8 of the By-laws is that indicated in the latter partof the Rule itself, viz. the removal of the dangerous tree by the servantsof the Municipal Council at the cost of the person failing to complywith the statutory notice. This same point was before Wood RentonC.J. in the Case of Vandenuall v. Perera1 reported in 2 Ceylon WeeklyReporter at page 4. In that case the Chief Justice held that disregardof requirements lawfully made under that Rule are also punishableunder Rule 2 of Chapter 25 and I am in respectful agreement with thatview of the matter, but that does not conclude the Appeal forMr. Tharmalingam has submitted that this By-law authorising as itdoes the Municipal Council to cut down trees overhanging, and likely
(1915) 2 C. W. B. 4.
DE KJE4ETSER, J.—Fernando v. Ratnnyake
to prove dangerous to, private property is ultra vires ; he relied on thecase of Nicholas v. Happawana Terunnanse1 decided by Withers J.and reported in Yol. 2 of the New Law Reports at page 346. In thatcase Withers J. said “ there is always a clear line between what concernsindividuals and what concerns the Public. The Ordinance sanctions,and properly sanctions, the entrance on private grounds of Municipalofficers, but in every case u-ith the object of conserving the public goodor preventing harm of any Bort from affecting the public. If theMunicipality may step in to prevent my tree from falling on myneighbour’s house in the next garden it may step in to prevent my owntree falling on my own house or to prevent some accident to myselffrom the ruinous condition of my own house. Legislation aimed toprotect one person from the consequence of what may be a nuisance onthe part of his neighbour, but which does not affect or concern the generalpublic in the least degree, was not intended, I imagine, by the MunicipalCouncils Ordinance. The person who is threatened by his neighbour’soverhanging tree has a simple remedy in his own hands. Hence, inmy opinion, that part of the By-law in question which relates tooverhanging trees in purely private places is invalid ”.
In Nicholas v. Happawana Terunnanse the facts were that Municipalofficers had come to cut down a coconut tree which grew on the premisesbelonging to the accused and threatened to fall on a house in the nextgarden. The two lands were private premises over which the publichad no right of way and the relevant portions of the By-law consideredin that case was in these terms :—“ If any fruit tree or any part of a
tree within the limits of the Municipality be deemed by the Councilto be likely to fall upon any house or building or to endanger the occupiersthereof or if the same be near any road or street and likely to affect thesafety of passengers going along or using such road, or street it shall be
lawful for the Municipal Council”. In the instant
case the tree that the Accused was required to remove according to theevidence stood on the boundary of her premises and slanted into theadjoining premises which was a house. The fruits and leaves of thetree fell on the roof of that adjoining house. The officer who gaveevidence said that the tree slanted at about 45 degrees and in his opinionthe roots were weak and the tree threatened to fall, if there was heavyblowing, on the adjoining house. The relevant portion of By-law 47reads “ when any tree or branch or fruit of a tree within the limits of theMunicipality shall be deemed by the Chairman to be likely to fall uponany house or building and injure the occupiers thereof or whenever thesame shall overhang any street it shall be lawful”.
The question whether By-law 47 is ultra vires came up for considerationin the case of Sourjah v. Hadjiar2 reported in 18 N. L. R. at page 31.Lascelles C.J. held that it was not competent to a Court to entertainthe question of the validity' of a by-law after it had been passed withthe formalities required by Section 109 of the Municipal Councils
* (1914) 18 N. L. R. 31.
(1897) 2 N. L. R. 346.
DE KRETSER, J.—Fernando v. Ratnayake
Ordinance of 1910. In so holding Lascelies C.J. said “ several groundshad been taken in the appeal against the conviction of the Accused.The first, which was principally pressed, is that the By-law 47 in theChapter is ultra vires. It is an objection that might perhaps have hadsome force, if the matter had not been disposed in principle by a previousdecision of this Court in Labrooy v. Marilcar (1907) 2 A.C.R. 63. Itwas there held that it was not competent to a Court to entertain thequestion of a validity of a by-law after it has been passed withthe formalities required by Section 109 of the M.C. Ordinance of 19101By that Section it is provided that after the by-laws had been approvedof by the Governor in Executive Council they are as legally valid, effectual,and binding as if they had been enacted in the Ordinance
By-law 47 is kept alive in the present Municipal Councils Ordinance bySection 320 which provides for the continuance of existing by-laws,and Section 267 provides for the Municipality to have the power fromtime to time to make by-laws as may appear necessary for the purposeof carrying out the provision of this Ordinance while Section 268 enactsthat no by-law shall have effect until it has been approved by the Minister,confirmed by the Senate and the House of Representatives and notificationof such confirmation is published in the Gazette, while sub-section 2states that every by-law shall upon the notification of such confirmationbe as valid and effectual, as if it were herein enacted.
In the case of Gunaselcera v. The Municipal Revenue Inspector1 reportedin 53 N. L. R. at page 229 Gratiaen J. said in reference to the provisionsof Section 268 what in my opinion would be equally applicable to theprovisions of Section 109 of the M.C. Ordinance which Lascelies C.J.thought prevented him from considering the validity of By-law 47.
Gratiaen J. said “ it does not seem to me that the provisions of Section268 (2) are wide enough to withdraw altogether the jurisdiction of aCourt to declare ultra vires a by-law which has been passed in excess ofthe authority of a local authority. Section 268 (1) certainly introducesan additional safeguard by postponing the operation of a by-law untilit has been approved by the appropriate Minister and confirmed byParliament, but the co-existence of Parliamentary and judicial controlof delegated legislation are not incongruous. As I read Section 268 (2),the Notification of such approval and confirmation gives validity tothe by-law only if it "had in the first instance been passed intra viresthe local authority and not otherwise. A by-law that is from its inceptionultra vires cannot thereafter attain what has been described as the“ high water mark of inviolability ” which attaches to a Parliamentaryenactment. If it were intended that the mere confirmation, howeverperfunctory, of a by-law passed in excess of a Council’s authority, shouldthereby convert it into something possessing the force of inviolable law,the withdrawal of the jurisdiction of the Court would have been expressedin less uncertain terms ”.
* (1951) 53 N. L. R. 229.
Fernando v. Perera
In my opinion these comments of Gratiaen J. which were obiter inOunasekera v. The Municipal Revenue Inspector clearly state what I thinkis the true legal position in reference to by-laws vis-a-vis the provisions ofSection 268. It is therefore open to me to consider whether or not thatportion of By-law 47 which relates to overhanging trees in purely privateplaces iB not invalid. It appears to me that the remarks of Withers J.are entirely in point and I am of the view that this portion of By-law47 is invalid.
A perusal of Section 4 of the Municipal Councils Ordinance whichsets out the functions of a Municipal Council shows that a MunicipalCouncil is charged “ with the regulation, control, and administrationof all matters relating to the public health, public utility services andpublic thoroughfares, and generally with the protection and thepromotion of the comfort, convenience and welfare of the people andthe amenities of the Municipality. ”
The general powers as set out in Section 40, and matters in regard towhich By-laws may be made set out in Section 272 all point to the concernof the Municipality as being for the public within its limits and not for theindividual in contra-distinction to the public. It is not withoutsignificance in my view that when Section 57 was enacted giving theMunicipal Council the power to cut trees that overhang streets it didnot also give it the power to cut down trees that overhang private premises.The conviction and sentence is set aside and the Appeal is allowed.
Mrs. V. D. FERNANDO, Appellant, and S. W. RATNAYAKE (Inspector, Municipal Engine