ABRAHAMS C.J.—Fernando v. Chairman, Municipal Council, Colombo. 75
1936Present: Abrahams C.J. and Dalton S.P.J.
FERNANDO v. CHAIRMAN, MUNICIPAL COUNCIL,COLOMBO.5—D. C. Colombo, 2,025.
Housing and town improvement—Improvement to street—Duty of Chairmanin apportioning cost among frontage owners—Failure of respondentto give evidence of greater or less degree of benefit derived by respectivepremises—Right of appeal—Ordinance No, 19 of 1915. s. 25 (4).
In apportioning among the frontage owners of a street the cost ofimprovements effected on it, there is no absolute duty imposed on theChairman of a local authority by the proviso to section 25 (4) of theHousing and Town Improvement Ordinance to have regard to thegreater or less degree of benefit to be derived by any premises from thework to be undertaken.
Where no objection was raised by a frontage owner to the apportion-ment and no evidence was placed before the Chairman of the compara-tive benefit to be enjoyed out of the improvement by the respectivepremises,—
Held, that the owner was not entitled to ask the Tribunal of Appeal todisturb the finding of the Chairman.
^^PPEAL from an order of the District Judge of Colombo.
Keuneman, K.C. (with him Van Geyzel), for appellant.
H. E. Amarasinghe, for respondent.
July 16, 1936. Abrahams C.J.—
This is an appeal from the District Judge, Colombo, allowing anappeal from an order of apportionment made by the Chairman of theMunicipal Council, Colombo, under section 25 of the Housing of thePeople and Improvement of Towns Ordinance, 1915. In allowing the
1 32 N. L. R. 92.
76 ABRAHAMS C.J. Fernando v. Chairman, Municipal Council, Colombo.
appeal the ‘ learned District Judge made a new order of apportionmentE)nd subsequently stated a case for the opinion of this Court as to whetherin the circumstances his order was correct or not.
The Municipal Council under section 25 (1) of the above-namedOrdinance resolved to execute certain works of improvement to thestreet named Campbell Terrace and, having estimated the cost of theWork provisionally, apportioned that cost among the frontage ownersi]n that street assigning the largest share to the respondent in theseproceedings, who had the longest line of frontage. The frontage ownersWere notified of the various assessments, and in pursuance of sub-section (2)of the above i section they were given an opportunity to raise objectionsto the work or the proposed apportionment. Some half dozen of thefrontage owners did appear and raise objections, but it cannot beascertained'from the notes of the Council’s meeting whether any of themobjected to his individual apportionment on the ground that he wouldbe deriving less benefit from the projected work than some or other of hisneighbours, and thereby that the proposed apportionment, which appearsfrom an arithmetical examination of the figures to have been basedaccording, to frontage, was not fair. . It is convenient here to refer to sub-section (4) of section 25 of the Ordinance, which shows the principleupon which the apportionment is to be made in such cases, and it readsas follows : —
“The said expenses shall be apportioned to the frontage of therespective premises, provided that the Chairman may have regardto the greater or less degree of benefit to be derived by any premisesfrom any work so undertaken. ”
The Council considered the objections, whatever they were, and approvedthe scheme of apportionment.
The responent to this appeal was not one of the objectors to thescheme of apportionment. His counsel says that he entered intonegotiations with the Municipal Council subsequently to make a freshapportionment, but he has not told us what these negotiations were.The work was completed in June, .1933, and in November, 1934, respondentappealed to the District Judge, Colombo, under sub-section (7) of theOrdinance, which reads as folows :—
“Any person aggrieved by any apportionment under this sectionmay appeal to the Tribunal of Appeal, and on any such appeal thetribunal may make a new apportionment or make such other order asit may deem' just. ”
Certain issues were drafted for decision by the District Judge of which thefollowing were the only ones which need be considered, namely:—
Did the respondent fail to have regard to the degree of benefitto be derived by the appellant’s premises from the works of construc-tion carried out by the respondent in settling the apportionment ofexpenses ?
3 (a). Was the respondent bound to have regard to such a degree ofbenefit as set out in issue 3 ? •
3 (b). Is it open to the Tribunal of Appeal to decide the questionsraised in issues 3 and 3 (a) ?
ABRAHAMS C.J.—Fernando v. Chairman, Municipal Council, Colombo. 77
What is the quantum of benefit, if any, derived by the
appellant’s premises from the works of construction carried out by the
The appellant mentioned in the issues- is, of course, the respondentin the present appeal. A certain amount of evidence was taken as to thenature of the improvements. The learned District Judge stated thatit was by no means clear, and there was no evidence to indicate that thequestion of apportionment was considered by the Chairman of theCouncil from the point of view of the greater or less degree of benefit tobe derived from the different premises, and he held that it was opento him as a Tribunal of Appeal to decide the questions raised in issues3 and 3 (a). It will, however, be observed that neither of these issuesgoes to the root of the matter because the true construction of the provisoto sub-section (4) of section 25 of the Ordinance is not, what is the degreeof benefit to be derived from any particular premises, but whetherpremises owned by a person who says he is aggrieved by the apportion-ment derived a lesser benefit from those owned by the frontagers to suchan extent that it would be unjust to assess his share of the apportionmentaccording to the length of frontage. It is not clear to me why the learnedDistrict Judge did not give his decision on that ground. What he didwas to accept the evidence of Mr. Eastman, who has a good deal ofexperience and skill in such assessments, to the effect that so far as thesale or site value of the property was concerned the actual benefit derivedfrom the work was practically negligible, that there was a possible remotefuture benefit to the property, but that benefit could only be estimatedon a percentage of the site value, and he estimated that benefit at 5 percent, of the site value. The learned District Judge, therefore, finallyheld that the quantum of benefit derived by the appellant’s premises fromthe work of construction amounted to Rs. 750 and he ordered the Chair-man to make a fresh apportionment to that extent whereas the provisofigure at which the respondent had been assessed by the Chairman wasRs. 2,484.33. It is obvious that this order based as it is on a misconstruc-tion of the Ordinance, was bad, and on this ground, if on no other, theappellant is entitled to succeed.
It is however, desirable that as this appeal has been fought on theobligations imposed upon the Chairman of the Municipal Council thisCourt should give a decision as to whether, in the circumstances disclosedin the case, the respondent was actually an aggrieved party by the ap-portionment. It has been argued by learned Counsel for the appellantthat on the words of the proviso to sub-section (4) of section 25 of theOrdinance, the. Chairman is given an absolute discretion and that,provided in respect of that discretion he does not behave capriciously orarbitrarily, the decision he arrived at cannot be made the ground for anappeal, and that in the circumstances it has not been shown that he didnot exercise his discretion properly. Personally, I am unwilling to sayconclusively whether or not the Chairman has that discretion which isclaimed for him, since I am unable to envisage every set of circumstancesthat might arise to determine his duty under the Ordinance. I thinkit is sufficient for the purposes of this case to say that I reject whatappears to be the contention of the respondent that an absolute duty was
78 ABRAHAMS C.J.—Fernando v. Chairman, Municipal Council, Colombo.
imposed on the Chairman to have regard to the greater or less degree ofbenefit to be derived by the premises. The word “ may ” has beeninterpreted in a large number of English cases, the principal of which isJulius v. Bishop of Oxford The overwhelming balance of judicialopinion is that it can never mean “ must ” or “ shall It was said byCotton L.J., In re Baker' at page 270, “ I think that great misconcep-tion is caused by saying that in some cases 4 may ’ means 4 must Itnever can mean ‘ must ’ so long as the English language retains itsmeaning ; but it gives a power, and then it may be a question in whatcases, where a Judge has a power given him by the word ‘ may itbecomes his duty to exercise it. ” I do not think that it was the duty ofthe Chairman of the Municipal Council in these present circumstances,where no objection was raised by the respondent to the apportionment,and when no evidence was either placed before the Chairman or placeditself in some way before him himself, to search in making his apportion-ment for evidence of the comparative benefit to be enjoyed out of theimprovements by the respective premises. There was an obligationimposed upon him to make the apportionment according to the lengthof the respective frontages and, in my opinion, the Ordinance does notsay, neither does it imply, that in such circumstances the Chairman hasto do anything more.
Before us the respondent relied on the case of Rex v. The Minister ofHealth (Ex parte Aldridge 3) in support of his contention that the Chairmanwas obliged to consider the degree of benefit derived by the respondentby the improvements, and the learned District Judge considered thatthat case sufficiently resembled this case to justify his finding that he hadthe power to form his own conclusions on the degree of benefit to beentailed by the improvements. There is, of course, a resemblancebetween the two cases. I have given careful consideration to it, butI do not think it is a conclusive resemblance. In Aldridge’s Case theappellate authority, the Minister of Health, was given power when aparty appealed on the ground that he was aggrieved by an apportion-ment to make any order that he thought equitable. That order wasstated in the enabling Act to be binding and conclusive on all parties.It seems to me that this power is so wide that there can be no interpreta-tion of the enabling Act in derogation of it. Further, and this is verymuch more important, the scheme of the enabling Act was, that afternotice to the Urban Authority, objections to the proposed works wereto be taken in a particular way, and it set out with the most carefuldetail grounds upon which objections were to be taken and the timewithin which objections were to be made. It seems obvious’, therefore,that if an objector had done all that was required of him he had adistinct right to complain that a prejudicial apportionment had beenmade and appeal for a rectification. But to construe the local Ordinanceso as to give such a right of appeal as the respondent claims, will be toimpose upon the Chairman of the Council a duty which I do not thinkthe Legislature contemplated, since no matter how conscientiously hemight have done his work on the materials which he had before him,
1 5 App. Cos. 214.s 44 Ch. D. 262.
8 (1925) 2 K. B. 363.
Baby Nona v. Carolis Appuhamy.
^ny frontager, who like the respondent in this case, held his hand tillafter the final apportionment could claim the right to come into theCourt a considerable time afterwards and disturb his finding by per-suading the Tribunal of Appeal to give a contrary decision based uponmatters which were never before the Chairman. I cannot sanction sounreasonable a construction of the Ordinance. I am of opinion thatthis appeal should be allowed with costs here and in the Court below.
Dalton SP.J.—I agree.
FERNANDO v. CHAIRMAN, MUNICIPAL COUNCIL, COLOMBO