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DEHIWELA-MT. LAVINIA MUNICIPAL COUNCIL AND OTHERSv
GAUTHAMADASA AND OTHERSCOURT OF APPEALAMARATUNGA, J.
BALAPATAHENDI, J.
A.L.A. 297/2000 (LG)
C. MT.LAVINIA NO. 396/99/SPLSEPTEMBER 25, 2002
Municipal Councils Ordinance – Sections 42, 45, and 307 – Survey for thepurpose of Road widening – Would this affect property rights? – Could theCourt grant an Injunction at this stage? – Non consideration of matters rele-vant to granting of an interim injunction – Fatal.
CA
Dehiwela-Mt. Lavinia Municipal Council and others v
Gauthamadasa and others (Amaratunga, J.)
289
The petitioner Council decided to widen a particular road and connect it toanother road in 1992. In 1999 a letter was received by the plaintiff-respon-dent from the council that, a Surveyor would visit the locality to conduct asurvey for that purpose. The plaintiff-respondent sought and obtained an inter-im injunction restraining the petitioner Council from entering and surveying thelands.
Held :
An Injunction is a discretionary remedy granted to prevent the commissionof a wrongful act which violates or threatens to violate the legal rights of aparty, the party seeking relief must satisfy Court that a prima facie caseexists in his favour.
There is a total absence of any consideration relating to the existence ofa prima facie case. The only act complained of was the proposed survey.The Court should have considered whether the proposed survey was awrongful act which violated the property rights of the plaintiff.
The exercise of any power given by written law is not wrongful or unlaw-ful, unless that power has been wrongly exercised contrary to the mannerspecified for its exercise. The plaintiffs have not complained of a wrongfulexercise of the power.
The Court could not then have granted a declaration that the survey wasunlawful. If the Court has no right to grant the declaration prayed for, theCourt would not have the power to grant an interim injunction to preventthe doing of the act in respect of which the declaration is sought.
An injunction would not be granted unless there is a threat of immediateor irremediable harm to a party.
APPLICATION for Leave to Appeal from the Order of the District Court of Mt.Lavinia, with leave being granted.
Cases referred to:
Felix Dias Bandaranayake v State Film Corporation 1981 2 Sri LR 287 at301
Yakkaduwa Pragnarama Thero v Minister of Education 71 NLR 506Lalanath de Silva for defendant-petitioner.
P.A.D. Samarasekera P.C., with Kirthi Sri Gunawardena for plaintiff respon-dent.
Cur.adv.vult
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November 12, 2003GAMINI AMARATUNGA, J.
This is an appeal with leave to appeal granted by this Court.The subject matter of the appeal is the order made by the learnedDistrict Judge of Mt. Lavinia granting an interim injunction againstthe Dehiwala-Mt. Lavinia Municipal Council(hereinafter referred toas the council). The facts relevant to this application are as follows.According to the plaint the Council has taken a decision to widenSri Gunalankara Mawatha situated at Dehiwala and connect it toAponso Mawatha. This decision taken in 1992 was not implement-ed due to the protests of the plaintiffs and several others who wereresidents of the Sri Gunalankara Mawatha.
The 1st plaintiff-respondent received a letter dated 5/3/1999,signed by the Municipal Commissioner of the Council informing himthat on 12/3/1999 a surveyor would visit the locality to conduct asurvey, in terms of the powers vested under the Municipal CouncilOrdinance, for the purpose of widening the Sri GunalankaraMawatha and to join it with Aponso Mawatha. The plaint states thatupon receiving that letter the 1st plaintiff sent a letter to the Councilprotesting to the proposed survey and on 12/3/1999 the Surveyordid not survey Sri Gunalankara Mawatha but conducted his surveyat the Aponso Mawatha. The plaintiffs were the owners of proper-ties abutting the Gunalankara Mawatha. The plaint averred that aletter similar to the letter dated 5/3/1999 had been sent to residentsof Aponso Mawatha informing them that the surveyor would visitAponso Mawatha on 26/3/1999 for the same purpose. The plaintfurther averred that from the said letter of 26/3/1999 it was clearthat the Council was going to commence the said road widening on26/3/1999 without giving any intimation to the plaintiffs under sec-tion 42 of the Municipal Councils Ordinance, Cap 252. The plaintiffsfurther averred that for the purpose of the said road widening, itwas proposed to annex an extent of 5 perches, and 3 perches eachfrom the properties of the 1st plaintiff and the 2nd and 3rd plaintiffsrespectively to the Sri Gunalankara Mawatha and that this act wasgoing to cause severe prejudice to their property rights. The plain-tiffs therefore sought the following reliefs from Court.
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CA
Dehiwela-Mt. Lavinia Municipal Council and others v
Gauthamadasa and others (Amaratunga, J.)
291
A declaration that the acquisition and / or the connecting ofthe lands described in the schedules to the plaint and /or theconducting a survey of the lands described in the schedulesto the plaint was unlawful
A permanent injunction, an interim injunction and an enjoin-ing order restraining the Council, its servants and agentsfrom entering and / or surveying the lands described in theschedules to the plaint and restraining the Council, its ser-vants and agents from annexing any part Of the said land tothe Sri Gunalankara Mawatha.
Having considered the plaint and the documents submitted thelearned Judge has issued an enjoining order and notice of interiminjunction. After the council appeared and filed its objections to theinterim injunction the learned District Judge has granted an interiminjunction as prayed for. This appeal is against that order. Leave toappeal has been granted of consent of the parties. For the purpos-es of this appeal both parties have filed written submissions. Bothparties have agreed that this appeal should be decided on the writ-ten submissions.
At the end of his Order granting the interim injunction thelearned judge has added a rider to the effect that the said order wasnot an obstacle to the Council. taking steps under the LandAcquisition Act or the Municipal Councils Ordinance to acquirelands necessary for the said road widening project. I believe thatthe learned Judge has added the said rider for the sake of clarity.But it was totally unnecessary, for the Municipal Council did notneed the authority from or the permission of the District Court toexercise the statutory powers vested in it under the provisions ofthe Municipal Councils Ordinance or to make a request to the gov-ernment to acquire the lands necessary for the lawful activities ofthe Council. Much reliance has been placed on this rider in the writ-ten submissions filed on behalf of the plaintiff-respondents to arguethat the said Order did not prevent the Council from taking stepsunder the Land Acquisition Act and the Municipal CouncilsOrdinance to implement the said road widening project. Howeverthe said rider does not relieve this Court from its duty to examinethe legality of the Order complained of.
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An injunction is a discretionary remedy granted to prevent thecommission of a wrongful act which violates or threatens to violate the 'legal rights of a party.lt is well established law that a party claiminginjunctive relief must satisfy Court that a prima facie case exists in hisfavour to obtain injunctive relief. The requirement of showing a primafacie case for the purpose of obtaining injunctive relief has beenexplained in the following lucid terms by Soza, J. in Felix DiasBandaranayake v State Film Corporation <1> at 301. "The applicant foran interim injunction must show that there is a serious matter in rela- sotion to his legal rights, to be tried at the hearing and that he has a goodchance of winning. It is not necessary that the plaintiff should be cer-tain to win. It is sufficient if the probabilities are he will win." An exam-ination of the existence of a prima facie case in the above sense is thestarting point to an order for the granting of injunctive relief.
A conspicuous feature of the order complained of is the totalabsence of any consideration relating to the existence of a primafacie case. The averments in the plaint merely establish the follow-ing two factual positions.
That the Council has decided to widen Sri Gunalankara 90Mawatha and to connect it with the Aponso Mawatha.
The Council has commissioned a surveyor to conduct a sur-vey at Sri Gunalankara and Aponso Mawathas.
Both those factual positions have not been denied by theCouncil. The plaint did not reveal any other act done by the Councilwhich has the effect of violating or having the effect of threateningthe violation of the legal rights of the plaintiff. The only act com-plained of was the proposed survey. In these circumstances thelearned Judge should have considered whether the proposed sur-vey was a wrongful act which violated the property rights of the 100plaintiffs. In the plaint the plaintiffs have averred that the Councilwas going to commence the road widening operations without giv-ing them any notice under section 42 of the Municipal CouncilOrdinance. The said section 42 authorizes the Council to do sur-veys of any private lands, buildings, or premises necessary formunicipal purposes and authorize any officer or servant of thecouncil to make such survey and do the acts specified therein, withnotice to the occupiers of such private lands or premises.
CA
Dehiwela-Mt. Lavinia Municipal Council and others v
Gauthamadasa and others (Amaratunga, J.)
293
In view of the specific reference to the said section 42 thelearned Judge should have turned his attention to the said section. 110There is no indication in the Order that he has done that. If he hasexamined the said section, it would have become very clear to himthat the proposed survey was to be conducted on the power orauthority available to the Council under the law. The letters dated5/3/1999 and 15/3/1999 signed by the Municipal Commissioner ofthe Council were obviously notices sent under the said section 42.Accordingly the averment of the plaint that no notice had beengiven under section 42 was incorrect.
The exercise of any power given by written law is not wrong-ful or unlawful, unless that power has been wrongly exercised con- 120trary to the manner specified for its exercise. The plaintiffs have notcomplained of a wrongful exercise of that power. When a powergiven under a statute is sought to be exercised according to themanner set out in the statute a person cannot complain that it is aviolation of his legal rights. Accordingly the Court could not havegranted a declaration that the survey of the plaintiffs lands wasunlawful. In a situation, where the Court has no right to grant thedeclaration prayed for, the Court did not have the power to grant aninterim injunction to prevent the doing of the act in respect of whichthe declaration was sought.130
When a land surveyed under section 42 is needed for a pur-pose of the Council, such lands may be acquired under section 48of the Municipal Councils Ordinance by negotiation or where it isnot possible, under section 45 by getting the Government toacquire the land under the Land Acquisition Act. Accordingly a sur-vey is the initial step for obtaining lands for the purposes of theCouncil. The fact that a survey is carried out and the lands to beacquisitioned are earmarked does not necessarily mean that thoselands will be automatically acquired. There are other steps in theprocess. The party whose lands are to be acquired is entitled to 140negotiate. If the party is not prepared even to negotiate, then theacquisition process set out in the Land Acquisition Act has to be setin motion. That Act has provisions for considering the objections ofparties whose lands are proposed to be acquired. If a land isrequired for a public purpose, a land may be acquired under theLand Acquisition Act but the Act contains provisions to safeguardthe rights of affected parties. That is the law of the land.
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At the time the District Court granted the impugned injunctionthe only act to be done was the survey, which the Council was law-fully entitled to conduct in terms of the Municipal Councils 150Ordinance. Such survey was not capable of causing an immediateharm or prejudice to the property rights of the plaintiffs. An injunc-tion would not be granted unless there is a threat of immediate andirremediable harm to a party. Yakkaduwa Pragnarama Thero vMinister of Education<2>. In this case there was no material beforeCourt to show that such was the situation. All reasons urged by theplaintiffs against the proposed survey namely that the land from theopposite side were not earmarked for acquisition and that the pro-posed road widening project was motivated by political considera-tions were matters not relevant to the question that was before 160Court.
In the circumstances set out above there was a total failure toconsider the matters relevant to the granting of an interim injunctionat that stage. In view of this the learned Judge's order issuing aninterim injunction cannot be allowed to stand. This finding makes itunnecessary for me to consider the other matters urged in thisappeal such as the failure to give notice under section 307 of theMunicipal Councils Ordinance and the allegation of suppression ofmaterial facts.
I allow the appeal, set aside the order of the learned District 170Judge granting an interim injunction and dismiss the plaintiff's appli-cation for an interim injunction. The plaintiff-respondents togethershall pay a sum of Rs.7500/- as costs of this appeal to the defen-dant Municipal Council.
BALAPATABENDI, J. – I agree.
Appeal allowed.
