MOSELEY S.P.J.—Nesadurai v. Perera.
1940Present: Moseley S.PJ.
NESADURAI v. PERERA.780—M. M. C. Colombo, 1,827
Municipal Councils Ordinance, s. 208 (Cap. 193)—Notice to provide drainageworks—Non-compliance with notice.
Non-compliance with a notice given under section 208 of the MunicipalCouncils Ordinance is not an offence.
^^PPEAL from a conviction by the Municipal Magistrate of Colombo.
U. A. Jayasundere, for accused, appellant.
No appearance for complainant, respondent.
Cur. adv. vult.
February 18, 1940. Moseley S.P.J.—
The appellant was convicted on a charge of failure to carry out certainworks which he had been required to execute by written notice issued bythe Commissioner of the Municipal Council of Colombo under section 208of Chapter 193 of the The Legislative Enactments of Ceylon. Section 229of the Ordinance contains a table of penalties which may be imposed inrespect of offences, and in pursuance, presumably, of the provision of apenalty prescribed for an offence against the provision of section 208, theappellant was fined Rs. 30, in default thirty days simple imprisonment.He was further given time to start and finish the work by October 10.
The grounds of appeal, as set out in the petition, are that the appellanthas done nothing in contravention of the section. At the hearing,however, Counsel for the appellant limited his argument to the contentionthat section 208 does not create an offence. That it does not do so in somany words must be conceded. Moreover, section 222, makes expressprovision for the case where an owner or occupier neglects to complywith the requirements of any notice served upon him in pursuance of anysection of this part of the Ordinance by permitting the Chairman to causethe required works to be executed and to recover the cost from the owneror occupier. Such a provision, of course, does not necessarily negative thepower of the legislature to create an offence out of the neglect to complywith the requirements of such a notice. It may well be in the interestsof public health that works of the description contemplated should becarried out with expedition. In such a case it would not be unreasonableto provide for the execution of the works by the Council and, in addition,to make the neglect of the owner punishable. For example, section 213of the Ordinance, while It does not expressly create an offence, imposesupon an owner a requirement non-compliance with which would, in myview, constitute an offence for which a penalty is prescribed by section 229.The section goes on to invest the Chairman to carry out the required work,and recover the cost from the owner.
MOSELEY S.P.J.—Nesadurai v. Perera
It would not therefore be safe to assume that the legislature, having inmind the provision of section 222, did not intend to create an offence inthe case of neglect, on the part of an owner, to comply with the require-ments of a notice issued by the Chairman in pursuance of the provisions ofsection 208.
The point for decision is whether or not section 208 creates an offence.
A reference to section 229, which declares that a contravention of anyprovision of this part of the Ordinance is an offence, shows that penaltiesare provided in respect of nineteen sections. Of these sections, seven, inso many words, create offences; six, by imposing liabilities or prohibitions,do so in effect; five merely give the Chairman power to require certainthings to be done, and, if they are not done by the owner, to have themdone at his expense. As to the remaining section, viz., 206, a penalty forcontravention is provided by section 229, and while it may be possible toguess at the intention of the legislature there is not even a vague hint asto the offence which it is intended to penalize. It would seem, then,that the provision of penalties for the contravention of certain sectionshas been made without much thought regarding the offences which thosesections might be supposed to define. If the legislature intends to createan offence it should do so in unequivocal terms. It is not, in my opinion,sufficient merely to frame a table setting out a penalty for breach of asection. In case Truck & Sons v. Priester l, Lindley L.J. observed : “ It isa well settled rule that the Court will not hold that a penalty has beenincurred unless the language of the clause which is said to impose it, is soclear that the case must necessarily be within it ”.
,Now, is the language of section 208 so clear that it is beyond doubtthat a person who omits to comply with the requirements of the Chairmanset out in a notice has committed an offence? Section 229 whichprescribes the penalty begins with these words : “ Whoever contravenesany provision of this part of the Ordinance shall be guilty of an offence ”.It does not proceed to say “ or whoever fails to comply with any noticeissued under any provision of this part ”. Compare the language ofsection 208 with that of section 213. In the latter case we have “ . .
.. the owners shall, within thirty days after notice …. cause
…. ” . Non-compliance with the requirements of the notice would
seem, beyond all doubt, to be an offence, notwithstanding the fact thatthe section goes on to empower the Chairman to carry on with the workand charge the cost to the owner. Section 208, however, merely providesfor the issue by the Chairman of a notice requiring the owner to executecertain works within a reasonable time. Nowhere in the section is anyobligation placed upon the owner to carry out those requirements. Forthe consequence of non-compliance one has to refer to section 222, whichseems to indicate clearly that no more is expected from the owner thanthat he shall bear the expenses of any works carried out by the Chairmanin consequence of the owner’s neglect to comply with a notice.
If it was the intention of the legislature that non-compliance with sucha notice should be an offence, it has not, in my opinion, declared its
• 19 Q. B. D. 629.
HOWARD C.J.—The King v. Joseph.
intention with the clarity which Lindley L.J. thought necessary. More-over, considering this part of the Ordinance as a whole, and the numberof instances, viz., section 218, in which an offence is explicitly created,there is no reason for thinking that it was intended that non-compliancein this particular case should be an offence.
I would allow the appeal.
NESADURAI v. PERERA