047-NLR-NLR-V-09-ELIZABETH-THELIS-et-al.-v.-THE-MUNICIPAL-COUNCIL-OF-COLOMBO.pdf
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Present:Mr. Justice Middleton and Mr, Justice Wood Renton.
ELIZABETH THELIS et al. v. THE MUNICIPAL COUNCIL
OP COLOMBO.
D. G., Colombo, 22,389.
Section 190 of Ordinance No. 7 of 1887 enacts: “ The Govern-ment or the Municipal Council may from time to time cause to bemade suchmain orother sewers, drains,andwater-coursesas may
be judgednecessaryfor the effectualdrainingof the Municipality,,
and, if needful, the Government or Municipal Council may carrythem through, across, or under any street or any place laid out as.or intendedfor a street, or any cellarorvaultwhich maybe under'
any of the streets, and (after .reasonable notice in writing, in thatbehalf) into, through, or under any enclosed or other lands whatso-ever, doingas littledamage as maybe,andmaking fullcompen-sationfor anydamage done; and ifany disputeshallarise touching
the amount or apportionment of compensation, the same shall be-settledin themanner hereinafterprovidedfor thesettlement of
disputes respecting damages and expenses."
And section 281 of the same Ordinance enacts:"Except as here-
in otherwise provided, in all cases when compensation, damages,costs, or expenses are by this Ordinance directed to be paid, the-amount-, and, if necessary, the apportionment of the same in case-of dispute, shall be summarily ascertained and determined by the-Magistrate or Municipal Magistrate."
Held, that the effect of section 281 was to take away the rightof action at common law, and that a party injured by the exercise-of thestatutorypowers conferred bysection190is confined to the-
remedy given by section 281.
TheGovernorand Company of theBritishCastPlateManufacturers
o. Meredith (4 Term.' Beports, p. 794) and Stevens e. Jeacocke,(11 Q. B. 731) followed.
T
HE plaintiffs, who were the owners of premises 15 and 59Temple road, Colombo, sued the Municipal Council of
Colombo for Rs. 2,000 damages, alleging that “ between the 12thday of June, 1905, and 15th day of July, -1905, the defendantcorporation caused to be cut a drain across the plaintiffs’ saidipremises and directed the water from the public drain into the saiddrain, whereby plaintiffs’ said premises suffered considerable damageby reason of the water which overflowed the said drain cut asaforesaid and by the silting of grass which forms part of the saidpremises No. 59 and by depreciation in value of the said premises-by reason of the existence of the said drain.” The defendantCouncil objected to the jurisdiction of the District Court and pleadedthat the plaintiffs should have proceeded under sections 190 and281 of the Municipal Councils Ordinance (No. 7 of 1887).
8J. W. A 98412 (8/60)
1906.
July 16.
1906.
July IQ.
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The District Judge (J. R. Weinman, Esq.,) held as. follows:—
“ The Municipal Council of Colombo, acting under the provisionsof section 190 of The Municipal Councils Ordinance, 1887, onthe 12th June, and the 15th July, 1905, cut a drain across theplaintiffs’ land. Their right to cut the drain is not questioned.For the consequential damage the Council offered Rs. 197 ascompensation, which the plaintiffs refused to accept. They claimRs. 2,000. Section 190 authorizes the Council to cut such a drain‘ causing as little damage as may be, and making full compensationfor any damage done, and if any dispute shall arise such disputeshall be settled in the manner hereinafter provided;’ section 287provides that compensation, costs, &c.,‘ shall -be summarily
ascertained and determined by the Magistrate or Municipal Magis-trate.’
" In the face of these sections it is contended that this Court hasno jurisdiction to entertain the claim. It was contended for theplaintiff that the jurisdiction of any Court could not be oustedexcept by express enactment. For instance, section 34 of OrdinanceHo. 24 of 1889, which ousts the Gansabhawa jurisdiction of PoliceCourts and Courts of Requests in certain matters runs as follows: —
‘ The jurisdiction conferred on the tribunals hereby created shallbe exclusive, and shall not be exercised by any other tribunal orany plea or pretext whatever.’
“ I quite agree that where there exists jurisdiction or jurisdictionhas been expressly conferred such jurisdiction cannot be takenaway except by express enactment. That is not so in the presentcase. Here the Council was given a certain right, and it was alsoenacted that the Council should make compensation for damagedone, and the mode in which the amount of the compensation is tobe ascertained is set down. I doubt whether given the right theCouncil is liable to compensation without express- provision. Theenactment takes away the jurisdiction of no Court. It invades noright. It simply says:‘You are entitled to compensation.
If you cannot agree, there is a procedure provided for you.’ Itgives you a right to recover compensation, but says that for itsascertainment you must go to the Police Court.
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" If it is alleged that the Council acted ultra vires of the Ordinance,acted in any way wrongly, then I quite admit that an action will liein the District Court. But there is no such allegation, and in myopinion this Court has no jurisdiction to entertain the claim.
“ The plain tiffs’ claim is dismissed with costs. ”
The plaintiffs appealed.
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Walter Pereira, K.G., S.-G., for the appellants.—The only ques-tion in this case submitted to the Court below for decision waswhether the Court had jurisdiction in respect of the plaintiffs’ claim.The claim is for damage sustained by the plaintiffs by reason of thedefendants (the Municipal Council of Colombo) having cut a drainacross their land. The Municipal Council was empowered by section190 of the Municipal Councils’ Ordinance to cut such drains. If theprovision of the section ended there, it might be said that plaintiffshad no cause of action. The section further provided that thedamage done was to be assessed by the Police Court. If that wasall that there was in the section regarding damage, it might be saidthat the special tribunal referred to, and that only, had jurisdiction.But after giving the power to the Council to cut drains across privateproperty, the section provided in plain terms that the Council should“ make full compensation for any damage done.” This provision gavethe landowner a cause of action, and there was nothing in the Ordi-nance to oust the ordinary jurisdiction of the District Court. True,it was further provided that if any dispute arose touching theamount of compensation, the same was to be settled by the PoliceCourt. These words did not take away the jurisdiction of the Dis-trict Court. It could be taken away by express terms only Byrnev. Byrne (1). Suppose the Municipal Council simply refused to payany damage at all, would not the District Cotut have jurisdictionto award damage? It is submitted it would, because the section,without reference to any Court, provides that full compensationshould be made. And if the District Court wouid have the powerto award damage, it would have the power to fix the' amount to bepaid. The Courts’ Ordinance was enacted after the MunicipalCouncils’ Ordinance, and therein (see sections 64 and 65) DistrictCourts were given jurisdiction in all civil matters and full power tohear, &c., all pleas, suits, and actions in which a party defendantresided within its jurisdiction, &c., and although exceptions weremade in favour of certain enactments, the Municipal Councils’Ordinance was not referred to. Where exclusive jurisdiction isintended to be given to a Court, the law plainly says so. The Gansab-hawas, for instance, are given exclusive jurisdiction and appropri-ate words are used for the purpose. The jurisdiction of a Courtof unlimited jurisdiction is not taken away by limited statutory •jurisdiction being given to another Court. Troup v. Ricardo (2).
Sampayo, K.G., for the Council.—There is no authority for theproposition that the ordinary civil Court has jurisdiction if there isno express provision in the statute to the contrary. Under section 190 1
(1) FI. and K. 425.(2) 34 L. J. Ch. 91.
19-
1906.
July 10.
1000.
JMp 10.
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of the Municipal Councils' Ordinance the act complained of isexpressly authorized and iB therefore lawful, and if the Ordinanceitself had not provided a remedy, the plaintiffs would have had noright of action whatever. It is submitted that where injury is caused(by the exercise of statutory powers, if the mode of redressing it ispointed out by the statute, the ordinary jurisdiction of the civilcourts is ousted. Wolverhampton Waterworks Co. v. Hawkesford (1);Jiailey v. Bailey (2); Bentley v. Manchester Railway Co. (3); The Gover-nor and Company of the British Cast Plate Manufacturers t>. Meredith .(4); Stevens v. Je'acocke (5); Ram Chunder v. Secretary of.State (6).
Walter Pereira, K.C., S.-G. in reply.—The cases cited by thecounsel on the other side have no application at all. We are notnow dealing with a case in which statutory powers are conferredby a legislative enactment, and the enactment itself did no morethan provide a remedy in case of damage caused by the exercise ofthose powers. Here, the enactment distinctly provided thatfull compensation should be made for any damage done, andthis provision had no reference to any Court. If we shutour eyes to this provision, the respondent’s counsel is right andhis authorities are relevant. But, why Bhut our eyes to it? Suppose,as suggested before, the Municipal Council unreasonably refused topay any damage at all, would not the District Court have jurisdictionunder this provision? If it would, how could the subsequent provisiondependent upon other conditions be deemed to have the effect oftaking away any such jurisdiction ?
10th July, 1906. Wood Benton J.—
In my opinion this appeal should be dismissed.
The plaintiffs-appellants have sued the Municipal Council forcertain damage alleged to have been done by the Council in cuttinga drain into their land by virtue of section 190 of the Municipal'Councils' Ordinance, No. 7 of 1887.
It is admitted that the Council have a right to cut drains of this'character, and it is not suggested in the plaint that, in the courseof the proceedings, they have acted otherwise thari in the exercise■of their statutory powers.
If section 190 of the Ordinance of 1887 had merely empowered theCouncil to execute works of this kind, it is clear that the appellantswould have no remedy, if any damage were caused thereby, in a
.(1) 5 Jut. (N. S.) Pt. 1, 1, 104.<2) 18 Q. B. D. 859.
(8) (1891) 3 Ch. 222.
4 Term. Rep. 794.
11 Q. B. 731.
J. L. R. 12 Mad. 105.
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Court of law. But the section referred to, after imposing on theCouncil the duty of doing as little damage as possible in the exe-cution of the authorized works, goes on to require them to makefull compensation for any damage done, and provides that, if anydispute should arise in regard to either the amount or apportionmentof compensation, it shall be settled in accordance with later sections,by proceedings before the Police or Municipal Magistrate.
The question which we have to decide in this case is, whetherthe effect of the provisions which I have quoted is to take away theappellants’ right of action at common law. It is admitted on thepart of the appellants that up to a certain point -the Council haveacted in conformity with section 190 of the Ordinance of 1SS7.They provisionally assessed the compensation which, in theiropinion, was due, and tendered it to the appellants, and all that canbe urged against them in this connection is that they did notthemselves lake the initiative in bringing the dispute before thePolice Court or the Municipal Magistrate.
So far as I can see, the Ordinance of 1887 imposes no specialobligation on the Council to take the initiative. In such proceedingsi.t is open to either party to apply to the constituted tribunal, and Ido not think that the failure of the Council to do so in the firstinstance in any way deprives them of whatever protection is con-ferred on them by statute.
The case therefore stands thus. Section 190 has conferred onthe Council an express statutory power; it has imposed on theman express obligation as regards the payment of compensation;and in conjunction with the later provisions it has indicated aspecial tribunal by which any dispute as to the amount or apportion-ment of such compensation is to be settled.
It appears to me to be certain on the authority of a number ofdecisions, of which The Governor and Company of the British CastPlate Manufacturers v. Meredith (1) and Stevens v. Jeacocke (2) maybe given as typical examples, that under such circumstances a partyinjured by the exercise of statutory powers is confined to the remedywhich the statute has created. In support of this view I wouldfurther refer to the later case of Saunby v. The Water Commissionersof the City of London and the Corporation of the City of London,Ontario (3), in which, it seems to me to result directly from thedecision of the Judicial Committee that the plaintiff’s remedy in anaction for trespass which he brought in the Canadian Courts wouldhave been held to be barred by the provision for arbitration in 1
(1) (1792) 4 Term. Reports, 794.(2)' (1848) 11 Q. B. 731.
(8) (1906) A. C. 110.
1906.
July 16.
WoodRbnton J.
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1906.Jtdy 16.
WoodRkktom J.
section 5 of 36 Victoria, cap. 102 (Ontario) if the Commissionershad pursued the procedure which the statute indicated.
Our attention has been called by the learned Solicitor-Generalto tiie fact that the' exclusive jurisdiction which is conferred onDistrict Courts in actions for damages, by sections 64 and 65 of theCourts’ Ordinance is a power of later creation than that conferredby section 190 of the Municipal Ordinance of 1887. But it appearstp me that the terms of section 190 of that Ordinance exclude thejurisdiction of District Courts in such a case as the present bynecessary implication, and it has been held in The WolverhamptonNew Waterworks Company v. Hawkesford (1) that necessary impli-cation is sufficient for such a purpose. Under these circumstancesI do not think that section 190 of Ordinance No. 7 of 1887 is affectedin the way in which the learned Solicitor-General contends it is,by section 64 of the Courts’ Ordinance.
I would order that the appeal be dismised with costs.
Middleton J.—
I agree. In my opinion section 190 gives the Municipalitystatutory powers against which there would be no remedy unlessit had been provided under the Ordinance, and I think that, inthe words of Lord Tenterden C.J. in Doe dem Murray, The Bishop ofRochester v. Bridges (2), “ where an act creates an obligation andenforces the performance in a specified manner, we take it to be thegeneral rule that performance cannot be enforced in any othermanner.”
It is not alleged here that anything has been done in the exerciseof that statutory power by the Council which is ultra vires.
I think that this section 190 should be construed as giving aspecial remedy which must be followed to the exclusion of thecommon law right of action..
G) (1859) 5 Jut. (N. S.) Pt. 1, 1, 104. (2) (1831) 1 B. and Ad. 847, a{ p. 859.