ALECKMAN v. KOCHCHIKADE TOWN COUNCIL

010-SLLR-SLLR-1982-2-ALECKMAN-v.-KOCHCHIKADE-TOWN-COUNCIL.pdf


CA
Aleckman i Kochchikatle Town ( tuincil
487
ALECKMAN
v.
KOCHCHIKADE TOWN COUNCIL
COURT OF APPEAL
ABDUL CADER. J., AND H A G. DE SILVA. J.
CA(SC) 103/74.
D.C. NEGOMBO 2621/MMARCH 24 AND 25. 1982.
Town Council Ordinance, sections. I2H. 2IS – Time, limit to institute action -Electricity Act, section 2(1). 33 – Local Authorities – Licensees to supply electricity- Breaches and wrongs as such licensee – Applicability of Electricity Act.
The plaintiff-appellant was a resident in the Kochchikadc Town Council areaand the defendant• Town Council supplied electricity to the plainlilf. On 20.9.72the defendant terminated the supply to the plaintiff appellant on l he ground thatthe premises to which the electricity was supplied was not owned l>y the plaintiffand that the building was not in conformity with the lloie.ing and TownImprovement Ordinance.''
The defendant Council argued that in terms of section .’ I Nl I the ap'pellantcould not maintain this action as action was not filed within jttuRMV'inonth period.-The plaintiff argued that, the .defendant was.in fact acting.unde.r. the provisions,of the Electrcity Act and that there is no time limit under the Electrcity Act.
Held –
That the defendant was a licensee under the Electricity Act ;and‘<ihat' this actionarose out of defendant's alleged failure of duties and obligations'cast upon it'bythe Electricity Act and hence the time limit imposed by the Town Council'Ordinance does not apply.
•488
Sri Lanka Law Reports
(1982) 2 S L R.
Cases referred to:
Negombo Municipal Council v. J. Fernando, (1961) 63 N.L.R. 512, 520
Weerasooriya Arachchi v. Special Commissioner, Calle Municipality (1967) 69N.L.R. 437.
Municipal Council of Batticaloa v.' Eliyathamby Vijayalachchi SC. 20174 Inly- D.C. Batticaloa 5680/81 – S.C. minutes of 19.3.76.
Feilding v. Municipal Council of Colombo, 2 Browne's Reports 196.
APPEAL from judgment of the District Court of Negombo.
C. Ranganathan. Q.C., with P. Somatitakam, C. Chetvarajah, K. Logasunderamand S.FI.M. Reeza for the plaintiff-appellant
H.W. Jayewardene, Q.C. with J. W. Subasinghe, S. A., V. Siriwardene and MissP. Seneviratne for the defendant-respondent.
Cur. adv. vult
June 25, 1982.
DE SILVA, J.
The plaintiff-appellant on 3rd May 1973 instituted an action againstthe Kochchikade Town Council, the defendant-respondent, allegingthat tljfc defendant Council had on 20th September 1972 wrongfullyand in breach of the provisions of the Electricity Act (Cap.205)discontinued the supply pf electricity to the premises of the plaintiff.The plaintiff claimed damages in a sum of Rs. 25,000/- and prayedfor a mandatory injunction for the restoration of the supply ofelectricity. Two preliminary issues of law were raised by the defendant,viz:
Has the plaintiff filed this action in Court within 6 months ofthe date when the cause, of action arose?
If not, can the plaintiff have and maintain this action in viewof the provision of section 218 of the Town Councils Ordinance?
Both these issues were answered in the negative by the learnedDistrict Judge and accordingly the plaintiffs action was dismissedwith costs. It is from this order that the plaintiff-appellant has appealed.
According to the plaint, the defendant Town Council was thelicensee under the Electricity Act (Cap.205) as amended -by ActsNos 59 of 1967 and 17 of 1969, for the distribution of electricitywithin the local limits of the defendant-Council. The plaintiff appliedfor and obtained a supply of electricity to the premises situated
CA
Aleckman v. Kochchikade Town Council (lie Silva, J )
489
within the local limits of the defendant-Council. The defendant/Councilcontinued to supply the electricity till 20th September 1973, and onthat date wrongfully and in breach of the provisions of the ElectricityAct discontinued the supply and failed, neglected and refused torestore the supply to the premises thereafter. As a result of this- failure the plaintiff alleged that he had been suffering great hardshipand inconvenience, had incurred heavy expenses in making alternativearrangements for the supply of electricity to the said |>n mises andhad also suffered great humiliation, pain of mind and loss nl leputation.The plaintiff estimated the damages suffered by him at Rs. 2.s ,t MK)/-.
The defendant Council in its answer took up the position that thesupply of electricity was given as stated by the plaintiff to the saidpremises on the belief of the representation made by the plaintiffthat he was the owner of the said premises. The defendant Councilfurther stated that after such supply was given it was found that thebuilding to which the electricity was supplied was not in conformitywith the requirements of the Housing & Town Improvement Ordinanceso as to enable the said premises to be lawfully occupied. by theplaintiff which necessitated the defendant Council withdrawing theCertificate of Conformity issued in respect of that building, whichhad been mistakenly, irregularly or unlawfully issued. Accordingly,as the defendant Council would not have been acting lawfully if itcontinued to supply electricity to such a building, the defendantCouncil was obliged to and did lawfully terminate the supply ofelectricity on 20th September 1972. The defendant Council furtheraverred that the plaintiff had failed to commence this action withinsixmonths next after theaccrual of the cause of action, andinview
ofsection 218(2) of theTown Council Ordinance, could nothave
and maintain the action.
Section 218(1) of the Town Councils Ordinance states that –
“No action shall beinstituted against any Town Councilfor
anything done orintended to be done under thepowers
conferred by this Ordinance or any by-law made thereunderuntil the expiration of one month next after notice in writingshall have been given to the Council"
It is common ground that by letter D1 of 29th January 1973 theplaintiff gave the defendant Council the required notice of his intentionto file an action against the defendant Council for the reliefs statedtherein.
Sri Lanka Law Reports
(l<fH2) 2 S.L.R.
490
Section 218(2) of the said Ordinance states – “Every actionreferred to in subsection (1) shall be commenced within sixmonths after the accrual of the cause of action and not afterwards”.
Admittedly, the cause of action arose' in'this case' on 20th September1972, the date on which the electricity supply was discontinued andthe action was filed on 3rd May 1973. well after six months afterthe cause of action arose.
Mr. Ranganathan for the appellant contends that the supply, ofelectricity since the promulgation of the "Electricity Act in 1950 isunder that Act and the, defendant Council though empowered tosupply electricity under the Town Councils Ordinance, is in factacting within the provision of the Electricity Act in so doing, andsince there is no six month limitation for the filing of an actionunder the Electricity'Act. the present action is not time-barred••
Section 128(e) of the Town Councils Ordinance empowers a TownCouncil to establish and maintain for the benefit of the persons inits area within the town, a supply of electric light or power.
Section 2(1) of the Electricity Act (Cap.205) prohibits any personunless he is authorised in that behalf by a licence granted by theMinister from '-
establishing or maintaining any installation for the generationof electrical energy for the purpose of transmitting, or distributingsuch energy for use in any place which is not the property ofthat person, or
for any fee or reward supplying electrical energy to any other. person.
Section 33(1) of the Electricity Act (as amended by the CeylonElectricity Board Act.No. 17 of 1969) states that a “licensee shallupon being required to do so by the owner or occupier of anypremises situated within one hundred and fifty feet from any distributing
main of the licensee give and continue to give a supply
of ' energy for those premises in accordance with the. provisions ofthis Act and the regulations made thereunder”
It will therefore be seen that the defendant Town Council is alicensee and is obliged to supply electricity to the consumer inaccordance with the provisions of the Electricity Act.
Mr. Ranganathan,. Counsel for the appellant, points out that inpara 3 of the Plaint the.plaintiff avers .the defendant Council’s positionas a licensee under the Electricity Act (Cap.205) as amended, and
CAAleckmun v. Kochchikiulc Town (tunri: (He Sih«, J.)491
in para 8 he alleges th;U‘the'discontinuance of the supply of electricitywas wrongful artd -rtV breach of the provisions of the Electricity Act.His contention is that this action is in respect of the failure'-of'theduties and obligations of the defendant Council, the licensee, castupon it by the Electricity Act, and as such, this action will notattract to itself the provisions of the Town Councils Ordinance.
He cites in support of this contention a number of authorities ofthe Supreme. Court which have held in 'dealing with analogousprovisions of the Municipal Councils Ordinance that the Municipal.Council acts under the provisions of the Electricity Act when itsupplies electrical energy to consumers and therefore an action filedin respect of such activity is not time-barred by any provision tothat effect under the Municipal Councils Ordinance.
n Negombo Municipal Council i J. Fernando. (1) 11.N <'«. F ernando.
J.as he then was. stated,
“But for the licence granted to the Council under the Act.the Council would have no right to supply electricity and wouldindeed be committing an offence in so doing. The fact that aMunicipal Council is empowered by the 1947 Ordinance tosupply electricity and to enter into contracts for the purposeis of no avail, since those powers cannot now be exercisedsave in conformity with the Electricity Act, which is a laterspecial enactment governing the supply of electricity. The“scheme" of the Act, as 1 have held, is that a licensee isbound to supply electricity in accordance with conditions laiddown by the legislature itself or else prescribed by regulationsmade under the Act; and just as the mode and condition ofsupply are comprehensively controlled by the Act,, so also isthe relationship between the licensee and the consumer similarlyControlled”.
In the case of S.M. Weerasooriyu Arachchi v's. Special ( ommissinner,Galle Municipality, (2) it was held that –
“Section 307(2) of the Municipal Councils Ordinance is not applicableto a case, where the cause of action arose from an act which wasdone under section 16 of the Electricity Act and which a MunicipalCouncil has no power to perform under any of the provisions of theMunicipal Councils Ordinance". It may be said in respect of thiscase that the Court Ijad failed to consider Section 4ll( l)(U)(iii) ofthe Municipal Council Ordinance (Cap.252) which empowers . a
492
Sri Lanka Law Report*
(19X2) 2 S.L.R.
Mi'micipal Council to establish and maintain the supply of electriclight' or povl'crbut the1 next case cited by Mr. Ranganathan by whrhdelusion hCSubmits this Court is bound, did in-fact take into accountthese provisions of the Municipal Councils Ordinance.
i ' •>: ' t
In the case of Municipal Council of Butlicaloa vs. EliyathambyVijayalachchi, (3) the plaintiff-respondent sued the Municipal Councilof Batticaloa for damages in a sum of Rs.30,000/– in respect of thedeath by electrocution of her son. The issue whether the action ofthe plaintiff was prescribed in view of section 307 of the MunicipalCouncils Ordinance was taken up first and the Trial Judge decidedthat issue in favour !hf the plaintiff and held that although the actionwas filed after 3 months of the electrocution that section was notapplicable to that action. Thamotheram, J. in the course of hisjudgment stated –
“The question we have to answer is whether the plaintiff infiling this action was doing so for anything done or intendedto he done under the provisions of the Municipal Councils
Ordinance The death in this case was the result of
electrocution the only relevance of the fact that the
person who was sued was the Municipal Council is that it isa co-operative body capable of beipg sued. The more importantfact in this case is that it is a licensee under the ElectricityAct. By becoming a licensee it undertook certain duties andresponsibilities ………
*- i
The rights the Municipal Council enjoys in relation to thesujsply of electrical energy is under the Electricity Act. Thevery supply of electrical energy is controlled by the provisionsof the Act.
The complaint therefore that the deceased died of electrocutiondue to negligence relates to something done or intended tobe done really under the Electricity Act and not under theMunicipal Councils Ordinance
We arc therefore of the view that the provisions of section307 of the Municipal Councils Ordinance have no applicationto the present case as the cause of action relates to somethingdone or intended to be done under the provisions of theElectricity Act. We note that in the plaint the plaintiff suedthe Municipal Council as a licensee under the Electricity Act”.
Section 40 (l)(U)(iii) of the Municipal Councils Ordinance (Cap.252)empowers a Municipal Council to establish and maintain the supplyof electric light or power.
04
Alecknmn v. Kochchikade Town Council (De Silva. J.)
493
Section 307(1) of this Ordinance states –
“No action shall be instituted against any Municipal
Council…..' for anything done or intended to be done
under the provisions of this ordinance o. of any by-law,regulation or rule made thereunder until the expiration of onemonth next after notice in writing shall have been given tothe Council”
Sub-section 2 thereof states –
“Every action referred to in sub-section 1 shall be commencedwithin three months next after the accrual of the cause ofaction and not afterwards”.
The provisions of section 128(e) of the Town CouncilsOrdinance (Cap.256) and of section 40(l)(U)(iii) of the MunicipalCouncils Ordinance (Cap.252) are couched in similar terms andempower the respective Councils to supply electric light or power.They are in the present context empowering sections but by virtueof section 2 of the Electricity Act (Cap.205) no person can supplyelectricity unless he is authorized in that behalf by a licence grantedby the Minister. The rights, duties, obligations and liabilities of alocal authority as a licensee for the supply of electricity arise notunder the Town Councils Ordinance or the Municipal CouncilsOrdinance but under the various provisions of the Electricity Actand therefore any action^ by or against such a licensee must bebrought under, and would be governed by the provisions of theElectricity Act.
Mr. Jayewardene for the plaintiff-respondent contended that thecases referred to above have no application to the instant case inthat, they interpret the sections of the Municipal Councils Ordinancevis-a-vis the provisions of the Electricity Act and not those of theTown Councils Ordinance. Mr. Jayewardene contends that there isa significant difference in the wording between section 218(1) of theTown Councils Ordinance and that of section 307(1) of the MunicipalCouncils Ordinance. He submits that while section 218 of the TownCouncils Ordinance speaks of “powers conferred by this Ordinance”,section 307(1) of the Municipal Councils Ordinance postulates “pro-visions of this Ordinance”. He therefore submits that the-cases reliedon by the plaintiff-appellant would have no relevance and.would notbe binding‘on’this Court in that they do not interpret 'words “inpari materia”.1 In'> my view-the distinction sought to be drawn. >by
•»94
(1982) 2 SLR.
Sri Lanka Law Repons
{r. Javcwardane is a distinction without substance.. Whether theword used is “powers" or “provisions", they in effect amount to thesatn^..thing. Both section 128(c) of the Town Cquncils Ordinancearid section. 40(1 )(Cl)(iii) of the Municipal Councils Ordinance aresections which.empower their respective Local Authorities to supplyelectric light or power. Various powers are derived from provisions|of these Ordinances and the time limits specified in section 218(2)of the Town Councils Ordinance and section 307 (2) of the MunicipalCouncils Ordinance apply to actions relating to activities of theseCouncils done and performed exclusively within empowering provisionsof their respective Ordinances and have no effect on actions broughtagainst these Councils for duties cast upon them by other enactmentssuch as the Electricity Act which do not contain such limitations.
• Mr. Jaycwardane also cited the case of Feilding vs. MunicipalCouncil of Colombo. (4) In that case the horses of the plaintiff'Hccom'irig frightened by being squirted by a watering cart, owing tothe negligence of the defendant Company’s servant, bolted, one oftherrt injuring itself so severely that it had to be subsequently shottwo tnonths afterwards. Soon after the accident the plaintiff gavenotice in writing of his intended action to the Chairman of theCouncil but did not institute his action until nearly five months aftertht accident. It was held that notice, was necessary and that thenotice given was sufficient. It was held further that the action wasijt time having been brought within three months of the horse’sdeath. Lawrics.. A.C.J.'in his judgment at page 198 states –
“One of t.he powers conferred on the Chairman of the MunicipalCouncil in Ceylon by the Ordinance No.7 of 1887 is to water(he streets.
■-> An action of this kind is one for damages for an act doneunder the provisions of the Ordinance; an act done, but donenegligently without proper precautions against injury to the public.
In my opinion the plaintiff was obliged to give the noticeand to bring the action within the time mentioned in the 218thsection of the Ordinance”.
This case has no application to the present case. There the injuryv^as caused by a servant of the defendant Council in performing apublic duty empowered and controlled solely by the Municipal CouncilsOrdinance while in the instant case the local authority is acting asa licensee under the Electricity Act and under its provisions. Furtherthis action, as evidenced by the plaintiffs averments in paras 3 and
CAAleckman v. K chchikatlv Town Council I Pc Silva. .1 i
8 of the plaint ,'isffor damage for discontinuance of supply of electricitywhich the licensee is obliged to maintain under the provisions of theElectricity Act. All the actions of the licensee in supplying electricityare controlled by the provisions of the Electricity Act. Whether thisCourt is bound or not. by the.decisions relied on by the plaintiff-pppeljant.I prefer to follow them and in. that view of the matter,, itj js ^notnecessary for me to refer to the various submissions and"authoritieson stare decisis relied on by Mr. Jayewarviane.
I am therefore of the view that the time limit placed by the TownCouncils Ordinance would not operate in the case of an action , filedfor a breach of a duty cast on the local authority, as licensee, bythe Electricity Act.;;
For the reasons given above, I allow the appeal,and 1 answer bothissues raised at the trial in favour of the plaintiff. The case will1 nowproceed, to a trial on any other issues that may be raised by theparties to the action. The plaintiff-appellant will be entitled to thecosts of this appeal.
ABDUL CADER, J. — I agree.Appeal allowed.