047-NLR-NLR-V-73-G.-H.-W.-DE-SILVA-Appellant-and-TOWN-COUNCIL-DODANDUWA-Respondent.pdf
H. X. G. FERNANDO, C.J.—De Silva v. Town Council, Dodanduwa
205
1970 Present: H. N. G. Fernando, C.J., Sirimane, J., andWijayatllake, J.
G. II. W. DE SILVA, Appellant, and TOWN COUNCIL,DODANDUWA, Respondent
S. C. 154169 {Inly.)—D. C. Galls, 7541/L.
Municipal or Town Council—Purchase, by Council, oj land sold for non-payment ofrales—Vesting certificate—Whether its validity can be challenged on ground ofnon-compliance with prescribed procedure—Municipal Councils Ordinance(Cap. 252), ss. 252 to 264—Town Councils Ordinance (Cap. 256), s. 169.
Where, by virtue of the provisions of section 201 of the Municipal CouncilsOrdinance rood with section 109 of tho Town Councils Ordinanco, immovableproporty is purchased on behalf of a Town Council at a sale for non-payment oftaxos, tho validity of tho vesting cortificnto issued thereafter to the Councilunder section 203 is not liablo to bo challenged on tho ground that, prior to thesale, the Council did not properly authorise some officer to purchase tho proportyin terms of soction 2C1.
Ap
PEAL from a judgment of tho District Court, Gallc.
Nimal Senanayake, with Miss S. M. Senaratnc and M. IV. Amerasinghe,for the defendant-appellant.
C. Banganathan, Q.O., with Ilarischandra Mendis and N. T. S.Kularalne, for the plaintiff-respondent.
Cur. adv. vult.
July 9, 1970. H. N. G. Fernando, C.J.—
The plaintiff in this section, the Dodanduwa Town Council, sued thedefendant for a declaration of title to certain premises situated withintho administrative limits of the Council. Tho plaintiff claimed title byvirtue of a certificate, purporting to have been issued under s. 263 of thoMunicipal Councils Ordinance (Cap. 252), vesting the premises in theCouncil. Sections 252 to 264 of that Ordinanco are declared by s. 169 oftho Town Councils Ordinance to bo applicable for tho purpose of therecovery of rateB imposed by a Town Council.
Section 263 provides for tho issue of a vesting certificate in a case“ where land or other immovable property is purchased by a (Town)Council under s. 261 Such a purchase can take place under tho pro-cedure 6et out in earlier sections of Cap. 252. If the rates duo on anyLxxni—121*J 10583—2,255 (0/70)
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H. X. G. FERXAXDO, C-J.—De Silva v. Town Council, DodanJuwa
premises are not duly paid, a warrant can be issued under s. 252 for therecovery of the rates by the seizure and sale of the movable and immov-able property of the proprietor of the premises. Where such a warrant isissued, s. 256 authorises the property so seized to be 6old by public auctionafter notice in the Government Gazette and in one or more newspapers.At the auction, ” it shall be lawful for any person authorised by theCouncil in t hat behalf to bid at the sale for, and to purchase, such land orproperty on behalf of tho Council ” (s. 261).
In the present action. Counsel for the defendant framed certain issues(numbered 6-12) which raised questions whether in this case there had infact been compliance with the requirements as to the issue of tho warrantunder s. 252, as to the seizure provided for by e. 256, as to tho authorisa-tion by the Council to bid for and purchase tho premises at the sale, andas to the actual purckaso at the sale in terms of s. 261. When, however,Counsel commenced to examine tho plaintiff’s witness concerning thefacts involved in theso issues, the learned District Judge upheld anobjection taken by Counsel for the plaintiff on the ground that evidenceof such facts is excluded ly tho terms of s. 263 :—
“ Where land or other immovable property is purchased by a Muni-cipal Council under the provisions of s. 261, a certificate substantiallyin the form set out in tho Eighth Schedule, signed by the Mayor, shallvest the property 6old absolutely in the Council free from allencumbrances ; and such certificate shall be received in all Courts asconclusive evidenco of the title of the Council to such land or otherimmovable property. Every certificate shall be liable to the 6t.ampduty leviable on conveyances of immovable property and to thocharges payable for the registration thereof.”
The present appeal from the order of the District Judge was listedbefore a Bench of 3 Judges for the purpose of reviewing tho correctness ofthe judgment in Nafia Umma v. Abdul Aziz1, which construed s. 146 ofthe former Municipal Councils Ordinance. The present e.. 263 is inidentical terms. The following is the construction placed on s. 146in that judgment:—
** Section 146 declares that a certificate in the prescribed form shallbe conclusive evidence of the title, and shall exclude all evidencosetting up another title, either directly or through impugning thecertificate on the ground of a fundamental infirmity.”
I must frankly state that I did entertain doubts as to the correctnessof the judgment, because of my opinion that s. 146 may be capable of theconstruction that the vesting certificate is conclusive as to title only in acase where property is purchased by the Council at a sale held after theprocedure prescribed in the Ordinance has been duly observed. Nevertheless,there are important considerations which compel me to the conclusionthat the judgment must bo followed.
1 (,1925) 27 N. L. JR. 150.
H. N. G. FERNANDO, C.J.—De Silva v. Town Council, Dodaniuwa 2(57
Mr. Ranganatban stressed tbo fact that for many years persons havepurchased property from Municipal Councils on the faith of tho con-clusivcncss of tho title conferred by vesting certificates under the formers. 146 and tho present s. 263. The experience of my brother Sirimano intho original Courts confirms tho importance of this fact. Thero is alsotho consideration that when the former Municipal Councils Ordinance of1910 was repealed in 1947 tho set of provisions which included the formers. 146 was re-enacted without change in the now Ordinance (Cap. 252).If in fact the judgment in the case of Najta Ummn v. Abdul Aziz haderroneously construed the intention of s. 14G, tho Legislature had ampleopportunity to correct such error.,
In view of these considerations, tho rulo of stare decisis must apply,even if wo entertain some doubt as to the correctness of tho judgment.
I was impressed also by Mr. Ranganathan’s arguments in support ofthe construction which was placed on a. 146. The section concerns casesin which property is sold by a responsible public authority, and not at thoinstance of a private creditor, and in which property is purchased by theauthority out of public funds; thero is therefore much to be said infavour of the view that the Legislature firstly relied on the presumptionthat the sales would in fact bo carried out according to law, and secondlyintended to avoid the possibility of a challenge of the vesting certificateon the ground of non-compliance with the prescribed procedure. Again,
. the former s. 147 and the present a. 264 show that there is no question ofa Local Authority making profit on property vested by tho Certificate.These sections provide that upon a re-sale of tho vested property, theauthority will take for itself only its proper dues, and will hold anysurplus for the benefit of the former owners. This safeguard has beenreinforced by an amendment in 1961, under which the former owner mayhimself pay up the dues and redeem his property. These considerationsremove to a great extent the fears that I have previously entertained oftho prejudice which may bo caused to owners of property if they aredebarred from challenging the validity of purchases by local authoritiesat sales purporting to have been held under the Ordinance.
Mr. Senanayake for the defendant proposed to cite recent decisions ofthe English Courts in which orders or acts made or done by statutoryauthorities have been quashed or declared null on the ground that theyhave beca made or done only -under colour of statutory power or in badfaith, and not in genuine exercise of such power. Wo need not howeverproceed to consider any such decisions, for the reason that in the instantcase we are satisfied that the purchase of tho defendant’s property by theplaintiff Council was not made under more colour of statutory power or inbad faith. In the first place, it is not disputed that tho rates due uponthe property had been unpaid for a long period. Then it is clear fromother proceedings in tho Supremo Court to which tho plaintiff and thedefendant were parties, and from documents of which wo take judicialnotice, that the defendant’s property was one of numerous propertieswhich were included in a warrant issued tinder Cap. 252, and that the
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Pina v. Aha mad u Lcbbc
sales of all these properties were advertised in accordance with therequirements of s. 250. There is thus do room even for tho suspicion thatthis property was improperly singled out for sale. The only matter uponwhich thcro appears to be some doubt is whether the Council did properlyauthoriso some officer to purchase this property in terms of s. 261 ; butthat is not a matter which can give rise to any suspicion of colourableaction or of bad faith. Indeed, although the Counsel for the plaintiffCouncil could give no assurance on the point, it may 3-et bo that thedefendant if he so wishes may even now be able to redeem his propertyby tendering to tho Council the sums which the Council sought to recoverby tho forced sale. The defendant has only himself to blame for hisown failure to mako an offer of such payment before this action wasinstituted.
For these reasons we affirm the order under appeal and we furtherdirect that the issues Nos. 6-12 framed at tho trial bo struck out asirrelevant. The appeal is dismissed with costs.
Sxbimasb, J.—I agree.
WlJAYATitAKE, J.—I agree.
Appeal dismissed.