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Present: Schneider J. and Jayewardene A. J.COREA v, COREA et al.
m—D. C. Chilaw, 7,380.
Public Thoroughfares—Building along a thoroughfare—Demolition byorder of District Committee—Inability of Mudaliyar—Action fordamages—Ordinance No. 10 of 1861, 88.12 and 86.
A building constructed two or three feet from the, road would beone along a thoroughfare within the meaning of section 86 of theThoroughfares Ordinance..,
Plaintiff constructed a building along a thoroughfare withoutgiving notice, as required by section 86 of the Ordinance, and wascalled upon by the Chairman of the District Committee to removethe building.
On plaintiff’s failure to do so, the Chairman of the DistrictCommittee, with the sanction of the Provincial'Committee, directedthe first defendant to demolish the building, which the latterproceeded to do. Plaintiff sued the defendant and those associatedwith him to recover a sum of Rs. 6,000 as damages for wrongfuldestruction of the house.
Held, that plaintiff's right to sue the defendant was not affectedby section 12 of the Ordinance.
Held, further that tho Chairman of the District Committee waswithin his rights in ordering the demolition of the building, andthat the defendant was protected from liability for his action.
“As a rule when the discharge of a public duty imposed bystatute upon a person or bodies of persons involves the exercise ofa discretion, which is not a merely ministerial act, if this discretioniuis been exercised erroneously, no action lies except upon proofof mala fides or indirect motive.”
'T'HE plaintiff in this action, who was the owner of a block of landat the junction of two roads, commenced building operationsthereon early in the year 1922. He had not, however, given thenotice required by section 86 of the Thoroughfares Ordinance,No. 10 of 1861. The matter was brought to the notice of theDistrict Committee, Chilaw, who issued a notice to the plaintiff toremove the building forthwith. The plaintiff took no notice of theletter and the District Committee acting under the instructions of theProvincial Committee authorized the Mudaliyar, the first defendantin the present case, to proceed to the spot and demolish thebuildings erected, within ten days of the receipt of the letter.
Tho first defendant fearing resistance and a breach of the peacetook with him the second, third, and fourth defendants, who arethe Muhandiram, the Inspector of Police, and the Vidane Arachchiof the place.
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The plaintiff now sues them to recover a sum of Rs. 5,000 asdamages sustained by him by the acts of the defendants, which actsthe plaintiff says were wrongful and illegal.
The District Judge dismissed plaintiff’s action, and the plaintiffappealed.
Hayley, for plaintiff, appellant.—The facts of the present case arehardly disputed and all parties are practically agreed as to them.The defendants have succeeded in the lower court on two specificpoints of law, viz.:—
That they were not the party liable, as under section 12 of the
Ordinance, the proper party to be sued was either the
District Committee or the Provincial Committee.
That even conceding that the action was properly constituted
their action was justified under section 86.
With regard to the first point urged it cannot be seriously pressedon behalf of the respondents as the current of case law is verystrongly against it. If the defendants admit that they were agentsof the parties to be sued under section 12, and if as it is here, the actscommitted amount to a tort, then either party may be sued for thedamage, vide, Robertson on Crown, p. 638.
With regard to the justification it must be conceded that if anysuch power was vested in the Committee, it certainly was not byvirtue of section 86 but by ^action 90, and purporting as they did toact under section 86, the act committed was ultra vires, and henceillegal.
The case can be carried even further. Granting to section 86,the construction which the respondents put on it by no stretch oflanguage could it be said that the facts of the present case bringit within the powers of the section.
In the first place the section applies only to buildings along athoroughfare. In the present case there is ample evidence to provethat between the site and the road there are several coconut trees.So that as ordinarily understood the present building does riot abuton the road as contemplated by the section.
Furthermore the section really applies to new buildings and theevidence here discloses that there was an old site, and that thepresent building was really a renewal. Notice having been givenin the previous instance, no notice was necessary in the present case.
Even if section 86 empowers the Chairman to pull down buildingsit can only apply to encroachments, as the section comes underthe genera) heading of Encroachments. It certainly cannot apply toa case like the present one where the building is several feet away.
The plaintiff no doubt would have been wiser if he had notified,but the absence of such notice does not entitle the other party totake such drastic steps as have been taken. In so doing they actedmaliciously.
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On the question of the interpretation of the word “ along ” Counselcited Chairman, District Road Committee v. Gurunanse.1
i8. Obeysekera D.S.-G. (with him M. W. H. de Silva C.C.), for thedefendants, respondent.—The contention of the appellant withregard to section 12 is wholly wrong. There the statute gives acertain remedy against a particular authority and the appellant isnot entitled to resort to any other remedy. The statute says it isthe District Committee or Provincial Committee that ought to besued in such cases, and the appellant’s remedy, if any, is againstthem.
With I'egard to the scope of section 86 and the interpretati jn ofthe word “ along ” it need only be said that there is clear authorityfor the proposition that “ along ” means “ by the side of,” vide 99—P. C. Chilaw, 11,858, S. G. Minutes, March 31, 1922; P. C.Panadure, 2,724, S.C. Minutes, June 23,1908. As to what is meantby a “ new building,” vide Ahamah v. Goonewardene2
The mere harshness of a statute does not disentitle the persons. who have been given drastic powers from using those powers.If the powers are too wide the Legislature ought to step in. TheCourts have merely to give the correct construction irrespective ofthe consequences.
Hayley in reply—
October 15, 1925. Jayewardene A.J.—
In this case the appellant sued the respondents to recover a sumof Rs. 5,000 as damages sustained by him by the wrongful andillegal destruction of a house erected on a land belonging to him.The facts which led up to the litigation are as follows:—Theappellant is the owner of a land called Thanayanwatta, situated atthe junction of two roads called the Compasspara and the PublicWorks Department road to Dandagamuwa. He has obtained aCertificate of Quiet Possession for it (P 2). In the year 1917,when the Certificate of Quiet Possession was granted there werefour buildings on it. One of them marked “ Dispensary ” is stillthere. The other buildings had disappeared at some date anteriorto 1922. It is stated in the evidence that there was a fencebetween the houses and the roads. This too is not there now,• but there is nothing to show when it disappeared. At the end of1921, or early in 1922, the plaintiff commenced to put up a buildingoccupying more or less the same site as the three old buildings.He had not given the notice required by section 86 of theThoroughfares Ordinance No. 10 of 1861. A headman, who hadbeen instructed to report to the authorities whenever any buildingis constructed within 25 feet from the centre of a minor road andwithin 33 feet of the centre of a Public Works Department road
<. orea v.Corea
1 1 Cur. L. R. 164.
* 5 Bat. 105.
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reported to the Vidane Arachchi, the fourth defendant (D 6) thatthe plaintiff was building a house about 22 feet from the centre ofthe Public Works Department road (Madampe-Kurunegala-Dandagamuwa road) and about 17 feet from the centre of theminor road (Compasspara), and that the building was very close tothe roads. He also stated that he had ordered the builders not tocontinue the work without obtaining an authority to build. TheVidane Arachchi reported the matter (D 7) to the Mudaliyar, thefirst defendant, and stated that the building in question was veryclose to the Kurunegala and Compass roads. The first defendantreported the matter to his superior officer, the Chairman, DistrictCommittee, Chilaw, who issued a notice on the plaintiff requiringhim to remove forthwith the building which he had erected Orcaused to be erected at Dumalasuriya junction without giving onemonth's notice in writing in breach of section 86 of the Thorough-fares Ordinance of 1861. With the notice the Chairman sent aletter (D 1) in which he stated that if the plaintiff put back thebuilding so as to leave 33 feet from the centre of the Madampe-Dandagamuwa (Kurunegala) road and 25 feet from the centre ofthe Compasspara no more would be said, that otherwise, it wouldbecome necessary to take further action with a view to its removalunder section 86 of the Ordinance. This was in October, 1922. Theplaintiff took no notice of this letter or of the notice .served on him.In January, 1923, the District Committee, Chilaw, obtained thesanction of the Provincial Committee (P 3) to demolish the building.In granting the sanction, the Chairman, Provincial Committee,asked that notice be served on the builder to remove the building.This was done by D4 dated February 2,1923. On March 1 by D5 theChairman, District Committee, Chilaw, informed the first defendant,the Mudaliyar of the District, that the Provincial (Road) Committeehad sanctioned the removal of the plaintiff's building under section86 of Ordinance No. 10 of 1861, and directed him to remove itwithin ten days of the receipt of the letter. On this authority thefirst defendant on March 6 caused the building in question to bepulled down.
The first defendant says he took the second, third, and fourthdefendants, the Muhandiram, the Inspector of Police, and theVidane Arachchi, respectively, of the place to assist him in casethere was resistance and a breach of the peace. They were presentat the demolition, but, took no part in it. The costs of demolitionhave been paid by the plaintiff. The plaintiff alleges that thedefendants acted wrongfully and illegally in pulling down andremoving his building, and claims the sum of Rs. 5,000 as damages.The defendants answered that they were not liable to be sued inview of section 12 of Ordinance No. 10 of 1861, and that theaction should have been brought against the District Committee orthe Provincial Committee and not against them, and on the merits
Jaykwar-dene A.J. *
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Jaybwarthey iu8tified their action under section 86 of the Ordinance.
dene A.J.Several issues were framed on the pleadings and the material issues
— raised the question of the liability of the defendants to be sued—Corea “ generally and in view of section 12 of the Ordinance,” and thequestion whether the erection of the said building was “ a contraven-tion of section 86 of Ordinance No. 10 of 1861.” These issues thelearned District Judge answered in favour of the defendants anddismissed the plaintiff’s action.
The plaintiff appeals. With regard to the liability of thedefendants to be sued, it is clear from the evidence that the second,third, and fourth defendants took no part whatever in committingthe act of which the plaintiff complains. The dismissal of theaction against them must, in any event, stand. As regards the firstdefendant, he admits that he had the building pulled down andremoved. He has committed the act of which the plaintiffcomplains, and the question is whether section 12 affords him anyprotection ■from liability to an action for damages, if that actamounts to a tort or wrong.
Now section 12 enacts inter alia that, “ all suits the cause ofwhich shall arise or accrue to any person whatsoever from or byreason of any contract or agreement or any other matter or thing,made or entered into, done, or performed by any Provincial orDistrict Committee in the execution of the powers vested in them bythis Ordinance, shall be brought by such person against suchProvincial or District Committee ….”
But the plaintiff’s allegation is that the defendants’ act waswrongful and illegal. He does not admit that the act complained ofwas committed in the execution of the powers vested in the Com-mittee by the Ordinance. He says that the act was in excess of thepowers conferred by the Ordinance, unauthorized by law, andultra vires. In view of these allegations the plaintiff was not boundto bring his action against the District Committee or ProvincialCommittee, although the latter also might be liable to be sued.He was entitled to bring the action against all persons who actuallycommitted the illegal act. The Common Law liability of agentswho commit torts are clearly stated in Article 133 of Bowstead’s Lawof Agency, VI. Edition, p. Ml:—
/ Where loss or injury is caused to any third person or anypenalty is incurred by any wrongful act or omission of anagent while acting on behalf of the principal, the agent ispersonally liable therefor, whether he is acting with theauthority of the pr*nc4pal or not, unless the authorty ofthe principal justifies the wrong, to the same extent as ifhe were acting on his own behalf. This article applies topublic agents.”
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In my opinion, the plaintiff was entitled to sue the defendants inthis action. They are, however, entitled to reJy on the grounds onwhich their principals might have justified their action.
Next, we have to consider the question whether the pulling downand removal of the house was an illegal or wrongful act, or whetherit can be justified under section 86 of the Ordinance.
Under that section it is not lawful for any person to commence anybuilding, wall, or fence along any thoroughfare without giving onecalendar month’s notice in writing to the Chairman of the DistrictCommittee of the district within which the building, wail, or fenceis about to bp commenced. It empowers the Chairman to requirein writing the removal of any such building, wall, or fence com-menced without notice. It also empowers the Chairman with thesanction of the Provincial Committee to cause any building, &c.,commenced or erected without a month’s notice to be removed andto recover the costs of such removal. The first point to be decidedis, was the building in question “ along ” a thoroughfare ? TheChairman, District Committee, Chilaw, appears to have framed somerules which he has communicated to his headmen, under which allbuildings within 33 feet of the centre of a Public Works Departmentroad and 25 feet from the centre of a minor road are to be deemedto be “ along ” a thoroughfare. There is no legal authority formaking such a rule, although some rule defining when a buildingmay be said to be “ along a thoroughfare ” appears to bedesirable. However that may be, the evidence led in this caseshows that the distance from the side drain of the roads to thefoundation of the building was from two to five feet. The plaintiff’sown witness, Mr. Murray, a licensed surveyor, admitted that thedistance from the drain to the foundation might be two, four, orfive feet. The burden of proving the distance between the roadand his building was on the plaintiff, who contended that thebuilding was not “ along ” the two roads passing by his land. Thisdistance has not been measured, and no survey has been filed.The evidence of his witness, Mr. Murray, must be taken in the senseleast favourable to bis side, with the result that the plaintiff mustbe taken to have erected bis building at a distance of two feetfrom the road. A building two or three feet from a road would,in my opinion, be “ along a thoroughfare.”
Section 86 applies whether the building is in fact an encroachmenton a road or not.
The plaintiff, however, seeks to avoid the application of section 86bo his building by proof of the existence of a row of coconut treesbetween it and the roads. There is evidence to show that there aretwo old coconut trees between the foundation of the building andthe Compasspara, and an old coconut tree and the stump of anothertree between it and the other road. I am not prepared to say thatthe presence of a few trees, as in this case, prevents a building being
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considered a building along a thoroughfare, if it is in fact so. Thesection does not prohibit the planting of trees along a thoroughfareand it is not unusual to have trees on the sideB of a road. Then itis said that the building occupied the site of three old buildings whichbad stood on the land in 1917, and it is contended that section 86applies only to new buildings and not to buildings re-erected on oldsites. It does not appear when these old buildings were removed.Assuming that to be so, it has not been proved that the-buildingremoved was on the old site. It is stated that it “ practically ”covered the old site. That is not sufficient. For it is quite possiblethat the new one might have been closer to the road than the oldone, and it may also be that the old buildings were put up after duenotice. I do not think there is anything in sections 84 to 90 whichdeal with encroachments to justify such a contention. Lastly, it iscontended that as section 86 is one of a group of sections enacted withthe object of preventing encroachments upon thoroughfares, thisbuilding which had been completed, and which stood on private land,should not have been removed by the adoption of the very summaryprocedure laid down in section 86. That certainly raises an import-ant question which is worthy of serious consideration. Perhaps,if the appellant had applied for an injunction to restrain the Chair-man from removing his building, when he was informed of hisintention to do so, this question might have been considered by theCourt, and the plaintiff's building might have been saved.
But it is impossible to contend, in view of the words of section 86which empowers the Chairman of the District Committee with thesanction of the Provincial Committee to cause any buddingcommenced or erected without notice, to be removed, that theChairman, District Committee, Chilaw, was not within bis strictlegal rights in acting in the way he did.
The words of the section are absolute and unqualified, and theconsequences of disobeying its requirements axe drastic, but whenit is alleged that the persons concerned in carrying out its provisionshave acted illegally and wrongfully, their conduct must be testedby the powers conferred on them by the Legislature, and not bysuggestions that they might have acted more equitably in theparticular instance. If the section works hardly in a case like thepresent, it is for the Legislature and not for the Courts to give relief.In my opinion, the plaintiff’s building was " along ” or “ alongside ”a thoroughfare within the meaning of section 86, and the firstdefendant did not act illegally or wrongfully in removing it at therequest of the Chairman, District Committee, Chilaw. Even if itbe held that the building was not “ along 55 a thoroughfare, owing toits distance from the roads or on^any of the grounds put forwardby the appellant, the question remains whether the first defendantis liable in damages for his act. As I have said before, the defen-dants can plead in justification any defence that would have been
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open to the District Committee. Then, would the District Com-mittee be liable if it had taken the mistaken view that the buildingwas “ along a thoroughfare,” and caused it to be removed ? It isnot suggested that the Committee or its Chairman acted mala fideor otherwise than honestly in this matter. The plaintifl had morethan one opportunity of objecting to the removal of the building.Two notices were issued asking him to remove the building. Hetook no action on these notices.
As a rule when the discharge of a public duty imposed by statuteupon a person or bodies of persons involves the exercise of a dis-cretion which is not a merely ministerial act, if the discretionhas been exercised erroneously, no action lies except upon proof ofmala fides or indirect motive : Partridge v. The General MedicalCouncil;1 Attorney-General v. Hooper.2 In a local case under thisvery Ordinance where the plaintiff sued the Provincial (Road)Committee for excessive assessment in connection with the openingof a new road, this Court said—
«TAYE WAR.DENE A.J.
“ The Supreme Court is of opinion that the plaintiff is not entitledto recover. No malice or mala fides is imputed to thedefendants, and it appears that, in assessing the variousamounts on the proprietors, of the several estates in thedistrict, they acted honestly and to the best of then-judgment and ability.” (Tytler v. The Provincial RoadCommittee for the Centred Province.)3
The House of Lords acted on this rule in the case of Everett v.Griffiths,4 and Lord Moulton explained the principle clearly in hisjudgment at pages 695-696. He said—
“ Now it must be borne in mind that no charge of bad faith ormalice is made against either of the defendants, nor wasthere a scintilla of evidence adduced at the trial on whichany such charge could be founded. Both the defendantsmust, therefore, be taken to have acted in good faiththroughout . . . . ”
.. .Ha man is required in the discharge of a, public
duty to make a decision which affects, by its legal conse-quences the liberty or property of others, and he performsthat duty and makes that decision honestly and in goodfaith, it is, in my opinion, a fundamental principle, of ourlaw that he is protected. It is not consonant with theprinciples of our law to require a man to make such adecision in the discharge of his duty to the public, andthen to leave him in peril by reason of the consequences toothers of that decision, provided that he has acted honestlyin making that decision. In the opinion of some of the
1 L. R. (1890) 25 Q. B. D. 90.* (1867) Rama. (I863-186S). p. 2S7.
» L. R. (1893) 3 Ch. 483.* L. R. (1921) A. C. 631.
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noble Lords whose opinions have been already given thisis expressed by saying that you cannot attack a man fordoing a judicial act without alleging and proving malice ormalafides. I wish to avoid the use of the words “ judicialact,” not because I think them unsuitable, but becausethere are varying degrees of protection given in respect ofthe performance of judicial acts according to the judicialposition of the person performing them, and I wish to avoidany discussion as to matters of this kind and to rest myjudgment directly upon what I believe to be the universalrule applicable in all cases, which is, that which I havestated above.”
The defendants are entitled to appeal to this rule of law and toask that they be protected against an action for damages resultingfrom an act done by them on orders given by their principal in theexercise of a discretion, it may be erroneous, but, nevertheless, fairand honest.
In my opinion they are entitled to be so protected. For thesereasons I hold that as neither the Provincial nor the District Com-mittee would be liable to be sued for damages in the circumstancesof this case, their agents, the defendants, would equally not be liable,and that the action against them has been rightly dismissed.
The appeal is also dismissed, with costs.
Schneider J.—I agree.