CAVen. Kirama Sumana Nanda Thero v Rajapakshe59
VEN. KIRAMA SUMANA NANDA THEROv
RAJAPAKSHECOURT OF APPEALEKANAYAKE, J.
CHANDRA GUNARATNE, J.
DC GAM PAHA 43630/M
OCTOBER 15, 2007
Pradeshiya Saba Act 15 of 1987 – Sections 35, 36, 210-214, 214(1) and (2), 215- Demolition of walls – No prior approval of the Sabawa – Notice in writing to begiven to Pradeshiya Saba before action is instituted? – If not – could action bemaintained – Sabawa acting outside the scope of Authority? Civil ProcedureCode section 461 – Amendment Act 20 of 1967- compared.
The plaintiff-appellant claimed damages for demolition of walls of 4 rooms in thebuilding which belonged to the plaintiff by the 1st and 2nd respondents (Mahara
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Pradeshiya Sabawa). The position of the plaintiff-respondent was that demolitiontook place as the plaintiff failed to obtain prior approval of the Pradeshiya Sabawa.
The trial Judge held that, notice under S214 of the Pradeshiya Saba Act was notgiven to the Pradeshiya Sabawa and the Pradeshiya Sabawa was empoweredunder Section 35 and Section 36 to demolish the building.
It was contended in appeal by the plaintiff-appellant that (1) the trial Judge failedto consider the Law applicable for demolition under Act 15 of 1987 (2) That thetrial Judge failed to consider that under Section 35 of the Act, the respondentscould not have demolished a part of the building, without he being heard. (3) thatthe Court has misdirected itself.
In terms of S210-215 – more specially S214 (1) and (2) no action couldbe instituted against any Pradeshiya Sabawa until the expiration of onemonth, next after notice in writing is given to the Pradeshiya Sabawa.
Per Anil Gunaratne, J.
"The above procedural provision is similar to S461 of the Civil Procedure Codeinvolving the State. The earlier view was that if notice was not given action wasnot maintainable. The introduction of an amendment to S461 by Act 20 of 1977with S461 A – where no notice has been given, S461A enables Court to stayproceedings for a further month. The section does not contemplate of a dismissalof action on failure to give notice."
The position is different in the provisions relating to notice in thePradeshiya Sabawa Act 15 of 1987 which does not contain a similarprovision as S461 of the Code. Provisions in S214 seem to be animperative requirement.
S35/36 contemplates to safeguard human life from possible dangers bya structure in a collapsible state. If these ingredients are present thePradeshiya Saba of the area could adopt or cause to take such steps todo everything possible to prevent a dangerous state.
The main items of evidence to support the ingredients in S35/36 arecontained in the defendants' documents. The Pradeshiya Sabawa hasnot acted outside its scope of authority. The plaintiff had constructed abuilding not according to approved specifications, it is an unauthorisedconstruction, the neighbours have expressed fear about theunauthorised construction and the possible danger which may ensue.
APPEAL from the judgment of the District Court of Gampaha.
q/Vert. Kirama Sumana Nanda Thero v Rajapakshe61
(Anil Gooneratne, J.)
Cases referred to:
Saiboo and others v Attorney-Genera;!- 48 NLR 574.
Weerasinghe v De Silva – 1994 – 2 Sri LR 248.
Liyanage v Municipal Council of Galle – 1994 – 3 Sri LR 217
Johannesburg Municipality v African Reality Trust – 1927 – AD 163.
Paramasothy v Veenayagamoorthy – (1943) 44 NLR 361
Pererav Perera- (1957) 59 NLR 133.
Udaya Gammanpifa for plaintiff-respondents.
1st and 2nd defendant-respondents absent and unrepresented.
January 30, 2008
ANIL GOONERATNE, J.This was delictual action filed in the District Court of Gampahawhere the plaintiff-appellant claimed damages for demolition of wallsof 4 rooms in the building which belongs to plaintiff, by the 1st and 2nddefendant-respondents in the manner pleaded in paragraphs 5/6 ofthe plaint. It was the position of the respondents according to theanswer filed in the Original Court that demolition took place as theplaintiff failed to obtain prior approval of the Pradeshiya Sabhawa Act,No, 15 of 1987, and in view of a series of complaints about illegalconstruction by the plaintiff, demolition had to be done, and such actof demolition by the Pradeshiya Sabha was legal. Judgment wasdelivered by the learned District Judge on or about 14.01.2004dismissing plaintiff's action.
At the hearing of this appeal only the appellant was represented.This appeal arises from the said judgment and in the Petition ofAppeal, appellant plead inter alia.
The learned District Judge has failed to consider the lawapplicable for demolition under the Pradeshiya Sabha Act,No. 15 of 1987.
The learned District Judge has failed to consider that undersection 35 of the Pradeshiya Sabha Act, the respondentscould not have demolished the part of the building asaforesaid, of the said appellant without he being heardand/or after filing an action in the respective Magistrate'sCourt prior to the said demolition.
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The respondents falsely misdirected the court and thelearned District Judge without considering that documentsmarked Vl and Vl were not proved misdirected her herselfand delivered a wrong judgment.
Parlies proceeded to trial on 23 issues. This appeal needs todecide whether statutory provisions in Pradeshiya Sabha Act and it’sapplicability to the case in hand justifies demolition as describedabove, and the question of compliance with procedural requirements.
The learned District Judge inter alia refer to the following pointsand findings arising from evidence led at the trial.
In the complaint P2, 4 persons and a lady came to the templein a Double cab on 28.4.99 at about 10.30 a.m. andthreatened to demolish the building. Court observes thatpersons concerned are not identified.
Evidence of plaintiff in court is to the effect that the Chairmanof the Pradeshiya Sabha with others caused damages to thebuildings and demolished, same.
By P3 plaintiff complains to the police that when he arrived atthe temple on 29.4.1999 at 4.30 p.m. about 1/3 of the walls inthe hall upstairs (Dharma Shalava) had been pulled down. P3shows that plaintiff was not present at the scene of thebuilding when damage was caused to the building, and incross-examination stated that when the Chairman of thePradeshiya Sabha is supposed to have come he was notpresent.
In court, the plaintiff claimed damages caused to the buildingupstairs and the ground floor. But in paragraphs 6 of the plaintdamages where claimed only for the damages caused to thebuilding upstairs.
The main ground urged on behalf of the ChairmanPradeshiya Sabhawa was that the construction was anunauthorized construction and plans had not been approvedand the construction had taken place not according to anyapproved specification. Plaintiff’s evidence too confirms thisposition. Plan had been submitted for approval only afterunauthorized construction. Plaintiff admitted that the
CAVen. Kirama Sumana Nanda Thero v Rajapakshe63
(Anil Gooneratne, J.)
foundation of the building was done without authority andconstruction done by plaintiff priest himself without anyguidance by persons involved in building construction whichcaused danger to those in the vicinity.
1 st defendant's contention is that the plaintiff had constructeda building not according to approved specification and as aresult it is dangerous to other premises in the vicinity.
Evidence of 1st defendant on D1, a letter addressed to theplaintiff priest and the police. D1 refers to unauthorizedconstruction which had been done without approval or anyspecification, which building had been inspected by thetechnical officer. The neighbours have expressed fears aboutthe unauthorised construction and the possible danger whichmay ensue. A direction to stop construction and removal ofbuilding in a dilapidated state. D1 should be dated 12.4.1999but the District Judge states 12.4.1992.
D2 of 18.5.1999 is a letter by Divisional Secretary Maharaaddressed to Commissioner of Buddhist Affairs and copies toplaintiff and Chairman Pradeshiya Sabha, about the illegalacts mentioned in D1 and requesting that the dangerousbuilding be cleared and a request to inspect the building.
D3 is a letter addressed to plaintiff by Chairman, MaharaPradeshiya Sabhawa referring to unauthorized structure,danger to neighbours as a result of structure, previouswarnings, inspection by Technical Officer etc. The lastparagraph of D3 states that the unauthorized structure shouldbe removed in 7 days and a notice under section 35 of Act,No. 15 of 1987. It further states that failure to comply asabove, action will be taken under section 36 to remove samewithout any warning to remove the obstruction and theunauthorized structure. D3 is copied to Commissioner ofBuddhist Affairs, Government Agent and a Minister.
Plaintiff has admitted receipt of D1 and D2. Plaint had beenfiled when D3 was dispatched to plaintiff.
District Judge comments on the valuation report on damagesmarked P4, and rejects P4 and observes.
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P4 contains facts submitted by plaintiff priest and not that ofthe author of same.
Report submitted by the author only the face value.
Author unable to testify about the foundation of the buildingi.e. material, strength etc.
In a case of this nature the primary question for plaintiff toestablish is whether by any illegal act of the Defendants (unlessprotected by statute) the private life of the plaintiff had been interferedwith and if so mandatory procedural requirements to bring an actionhave been complied with by the plaintiff to succeed in damages.Compliance with procedural requirements would be the firstprecondition to be looked into in a case of a statutory authority. Thelearned District Judge has answered issue Nos. 3 and 4 in thenegative. These issues relate to illegal acts of the defendants. IssueNo. 7 relates to the above procedural requirement, which is alsoanswered in the negative in favour of the defendants.
In terms of Pradeshiya Sabha Act procedure and legalproceedings are embodied in section 210 to 215 of the Act. Issue No.7 refers to section 214 of the said Act. Section 214(1) & (2) reads thus:
No action shall be instituted against any Pradeshiya Sabha orany member or any officer of the Pradeshiya Sabha or anyperson acting under the direction of the Pradeshiya Sabha foranything done or intended to be done under the powersconferred by this Act, or any by-law made thereunder, untilthe expiration of one month next after notice in writing shallhave been given to the Pradeshiya Sabha or to thedefendant, stating with reasonable certainty the cause ofsuch action and the name and the place of abode of theintended plaintiff and of his Attorney-at-Law or agent, if any,in such action.
Every action referred to in subsection (1) shall becommenced within ix months after the accrual of the cause ofaction and not thereafter.
The above procedural provisions are somewhat similar tosection 461 of the Civil Procedure Code in cases involving the stateand in that regard representation of the Attorney-General, comes into
CAVen. Kirama Sumana Nanda Thero v Rajapakshe65
(Anil Gooneratne, J.)
the picture. Earlier view was that if notice was not given action was notmaintainable Saiboo and others v Attorney-General). Object of section461 of the Civil Procedure Code is to afford an opportunity to the personsconcerned to consider his position with regard to a claim and come toterms of settlement Weerasinghe v De Silvd2). The introduction of theamendment to section 461, by Act, No.20 of 1977 with section 461 A,procedure where no notice has been given is dealt with to enable courtstay proceedings for a further month. The said section does notcontemplate of a dismissal of action on failure to give notice.
However position is different in the provisions relating to notice inthe Pradeshiya Sabha Act, No.15 of 1987 which does not contain asimilar provision as section 461A of the Civil Procedure Code.
As such the provisions contained in section 214 of the said Actseems to be an imperative requirement. District Judge in this casehad answered issue No. 7 in the negative and held that plaintiff cannotmaintain this action. The appellant's counsel argued that there was nonecessity to give notice as the respondent's have no power to act inthe manner they acted. In Liyanage v Municipal Council Galled).
Section 307(1) of the Municipal Councils Ordinance requiresnotice of action in respect of "anything done or intended to bedone under the provisions of (the Ordinance". Clearly it is notin respect of every act or omission that notice is required.
Section 307(1) does not apply to those acts which aMunicipal Council has no power to do or which it has powerto do (under statue, common law or contract) otherwise thanunder the Ordinance.
Notice is also not required in respect of mala fide acts orthose vitiated by some procedural or other defect.
The next question is whether the defendants had the power toact as above. The learned District Judge has to a great extentconsidered the factual position to enable the Pradeshiya Sabha to actaccording to section 35 and 36 of the Pradeshiya Sabha Act.
The learned District Judge as enumerated in (E), (F), (G), (H), (I)and (K) of the above findings, gives an indication that the ingredientsreferred to in section 35 and 36 of Act, No. 15 of 1987 has beenconsidered, in the Original Court Judgment. The said sections readsthus ….
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Section 35 – If any house, building, boundary wall or gatewayadjoining any street or thoroughfare in any area or anything affixedthereon, be deemed by the Pradeshiya Sabha of that area to be ina ruinous state, whether dangerous or not, or to be likely to fail, thePradeshiya Sabha shall immediately if it appears to be necessary,cause a proper hoarding or fence to be put up for the protectionof persons using such street or thoroughfare, and shall causenotice in writing to be served on the owner or occupier forthwith totake down, secure, or repair such house, building, boundary wall,gateway or thing affixed thereon, as the case may require.
Section 36 – If any person, on whom a notice is served by or onbehalf of a Pradeshiya Sabha under section 35 does not begin tocomply with such notice within three days of the service thereof ordoes not complete the work with due diligence, the PradeshiyaSabha shall cause all or so much of the work as it may thinknecessary to be carried out, and all the expenses incurred by thePradeshiya Sabha shall be paid by such person and shall berecoverable as hereinafter provided.
(f one takes a close look at the above sections, any structure inclose proximity to a road referred to therein, it is evident that it shouldbe in a ruinous state which could be dangerous and likely to fall on tothe road. The section contemplates to safeguard human life frompossible dangers by a structure in a collapsible state. If theseingredients are present the Pradeshiya Sabha of the area could adoptor cause to take such steps to do everything possible to prevent adangerous state.
Statutory Authority – Principles of Ceylon Law by H.W.Thambiah Q.C. pg. 403/404.
The defendant may plead that a statute protects his actionand, therefore, no action for damages lies, if as a result of some actdone under the authority of the statute damage is caused toanother. In such cases as Innes J. said (Johannesburg Municipalityv African Reality Trust4> "the primary question is whether thestatute in question justifies an interference with private lives. If itdoes not, then there is an end to the matter. Anyone whose privatelife has been interfered with, (without, of course some justification)has a remedy." Where the defendant has discharged the onus byproving that his act was justified by law, it is still open to the plaintiff
QAVen. Kirama Sumana Nanda Thero v Rajapaksheqj
(Anil Gooneratne, J.)
to prove that the defendant is not entitled to the protection ofstatutory defence because the powers conferred upon him bystatute were exercised negligently Paramasothy v Veenayaga-moorthyt5). Thus, although The Cattle Trespass Ordinanceauthorizes an irrigation headman to take charge of trespassingcattle, yet his position is that of a bailee for reward and if he has notexercised due diligence after taking the custody of the cattle he willbe liable in damages for the negligence Perera v Perera(6). Publicservants are protected by many statutes in Ceylon for any actionwhich they may bona fide do under the provisions of statute law(Fernando, Actions Against Public Servants in Ceylon).
The main items of evidence to support the ingredients in theabove sections are contained in defendant's documents, D1 to D3.Perusal of these documents indicate very clearly that the author ofthose documents have given his mind to the ruinous state of thestructure put up by the plaintiff. I cannot hold that the defendantacted outside their scope of authority, to enable the Original Courtto grant relief to the plaintiff. As such it would be a precondition toissue a notice under section 214 of the said Act prior to filing action.The trial court Judge has correctly answered issue No.7, and onthis alone action has to be dismissed. In any event issue No.14, 16-21 has been answered correctly by the learned District Judgewhich issues more or less refer to section 35 and 36 of Act, No. 15 .of 1987. In the circumstances judgment of the District Court isaffirmed. Appeal dismissed with costs.
EKANAYAKE, J.I agree.
VEN. KIRAMA SUMANA NANDA THERO v. RAJAPAKSHE