Ibrahim v. Colombo Municipal Council.
1937Present: Poyser S.P.J. and Koch J.
IBRAHIM et al. v. COLOMBO MUNICIPAL COUNCIL103—D. C. Colombo' (Special), 2,078.
Housing and Town Improvement Ordinance—Scheme for lighting, sewering,draining, and metalling lane—Apportionment of cost—Appeal to specialtribunal—Jurisdiction of Court to canvass the decision of Councilregarding construction of work—Ordinance No. 19 of 1915, ss. 25 (7),93, and 94.
Where the Municipal Council acting under section 25 of the Housingand Town Improvement Ordinance approved of a scheme for the lighting,sewering, draining, metalling, &c., of a lane and the apportionment ofthe cost thereof among the owners of the premises affected,—
Held, that the tribunal of appeal appointed under section 93 of theOrdinance is limited to the question of the apportionment of costamong the owners, and is not entitled to inquire whether the resolu-tion of the Council as to the necessity for the works of construction wasultra vires.
A party, who is aggrieved by the decision of the Council with regardto a work of construction, may proceed by way of a writ of prohibitionor similar mandate to the Supreme Court.
HIS was a case stated by the District Court under section 92 (1) of theHousing and Town Improvement Ordinance, No. 9 of 1915.
The question submitted was whether the tribunal of appeal appointedunder the Ordinance in considering the question of the apportionmentof expenses among the owners of a scheme for lighting, sewering,draining, and metalling a lane, approved by the Municipal Council ofColombo, has jurisdiction to inquire into the necessity of the works of theconstruction approved by the Council.
The District Judge after finding that the right of appeal was notrestricted to the question of apportionment held that he had the powerto determine whether the provision of soil sewer came within the definitionof “ Construction ” in section 2 of the Ordinance.
H. V. Perera (with him J. L. M. Fernando), for the appellant.—Theappeal contemplated by section 25 (7) is an appeal against the appor-tionment, i.e., the proportion of the total expenses settled by the Chairmanas the share to be paid by the various frontagers. Here the frontagerschallenge not “ the apportionment ” of the expenses inter se but (a) theinclusion in the amount of these expenses of the cost of the 9-inch soil sewerand (b) the necessity for a metalled roadway, their contention being thata gravelled roadway was sufficient. In short the frontagers attack not1 3 C. W. Jft. 294.* 3 C. W. R. 326.
Ibrahim v. Colombo Municipal Council.
the apportionment by the Chairman, but the resolution of t)ie CouncilThe trontagers say that the part of the resolution regarding the soil sewer 'was ultra vires and the part of the resolution dealing with the metalledroadway required something that was unnecessary. These matters maybe questioned by some appropriate procedure but they cannot be raisedin an appeal against “ the apportionment These submissions are-supported by cases decided under section 157 of the Public Health Act,1875—Cook v. Ipswich Local BoardIn re an Arbitration between Stoker andMayor, &c., of Morpeth3 . If “ apportionment ” be construed in thissense, the second and third points stated for the opinion of this Courtmust be answered in the negative.
The fourth point stated for the opinion of this Court is whether the soilsewer falls within the definition of the term construction” in section 2.The word “ sewering ” in the definition of “ construction ” includes thelaying of the 9-inch soil sewer.
J. R. V. Ferdinands (with him D. Jansze), for respondent.—The DistrictJudge rightly held that the Council had clearly acted ultra vires in passinga resolution to include the construction of the 9-inch soil sewer. But forthe purposes of this matter it- is not necessary to inquire whether or not.the Council had jurisdiction to resolve on the construction of the sewer ;it is sufficient to show that the Chairman had no jurisdiction to apportionthe cost of the sewer to the frontagers. The frontagers contend that theChairman acted ultra vires in apportioning the expenses of constructingthe sewer—the very act of apportioning aggrieves them, quite apartfrom any question of the proportion or share of those expenses—and theyare therefore entitled to appeal against the apportionment, i.e., the actof apportioning. Section 25(1) reads “…. and the expenses
incurred by the local authority in executing any such work shall beapportioned by the Chairman ….” The Chairman has jurisdiction
to apportion only expenses incurred in executing “ any such work ”meaning any such work as is (i) covered by the resolution and (iifcomprised in the definition of “ construction ” in section 2.“ Such
work ” relates back to the words “ works comprised in the definition ofconstruction in section 2 of this Ordinance ” occurring earlier in thesection, If therefore the sewer is not a work comprised in the definitionof “ construction ” then the Chairman had no jurisdiction to apportionthe cost of the sewer. Two conditions must be present before the Chair-man had such jurisdiction, viz., (i) the work had to be covered by aresolution and (ii) the work had to be a “ work of construction ”. Hereonly the first condition is present. The 9-inch soil sewer does not sewerthe street within the definition of the term “ street ” in section 2. Theevidence shows that this sewer was constructed to serve the housesabutting on the street. The street is served by channels running on eitherside of the street; these channels deal with the street water. It followsthen that, as this sewer was not a work of construction within the meaningof the Ordinance, the act of the Chairman in apportioning the cost of thesewer enables the frontagers to appeal against the apportionment, and sofar as this matter at any rate is concerned an appeal lies to the tribunalof appeal.
1 24 Law Times Rep. 579.
* 112 Law Times Rep. 753.
POYSER SJP-J.—Ibrahim v. Colombo Municipal Council.
The -decision in the Sandgate District Local Board of Health v. Keene *shows that an appeal against the apportionment will extend to any andevery matter arising upon or affecting the apportionment. According tothat case in an appeal against the apportionment, the tribunal of appealcan inquire into the sufficiency and adequacy of a gravelled roadway.In this case the evidence shows that the Council did not consider thisstreet on its own merits ; it did not arrive at the decision to metal thestreet after considering the requirements of the street; it merely followed“ a standard form of construction ”.
(Counsel elaborated his contention that the 9-inch soil sewer was not awork of construction by showing that Ordinance No. 19 of 1915 was con-cerned only with the provision of street sewers which was somethingquite separate and distinct from the construction of soil sewers, i.e.,sewers to deal with the soil sewage and the houses fronting on thestreet. He referred to the Municipal Councils Ordinance, No. 6 of 1910(Part XI. a.) section 188 et seq., which provided for soil sewage, the PublicHealth Act, 1875, and also to certain decisions.)
H. V. Perera, in reply.—“ Such work ” means the work referred to inthe Councils’ resolution, and the Chairman has merely a ministerial dutyto apportion the expenses of the works mentioned in the resolution.The Chairman cannot examine whether the Council had authority toresolve to carry out an item or items of work mentioned in such resolution.
The Sandgate case though not overruled has, according to more recentauthorities, gone too far. (Vide the Morpeth case.)
The 9-inch soil sewer is a work of construction comprised in the definitionof construction in section 2. The soil sewer serves the street, for a streetmust be considered in relation to its inhabitants.—Vide the preamble toOrdinance No. 19 of 1915.
March 16, 1937. Poyser SP.J.—
The District Court Colombo is, under the provisions of sections 83 and84 of the Housing and Town Improvement Ordinance, No. 19 of 1915,the special tribunal of appeal for the administrative limits of the MunicipalCouncil of Colombo, and this is a “case stated” by the District Judgeunder section 92 (1) of the Ordinance.
The material facts are as follows :—The Municipal Council, actingunder section 25 of the Ordinance, resolved, on October 2, 1929, to carryout. a scheme of lighting, sewering, draining, metalling, and bitumenpainting in 42nd lane, Wellawatta, at an approximate cost of Rs. 40,687.
Notices were served on the owners of all premises affected (section 25(2) ), objections to the scheme were heard, and, finally, on January 21,1931, the Council, having considered further objections, approved thescheme and the apportionment of the cost made by the Chairman andpublished in the Government Gazette of October 25, 1929.
The work was commenced in accordance with the latter resolutionand completed in June, 1932, at a total cost of Rs. 36,869.16. InSeptember, 1933, certain of the owners of the premises affected, appealed,in accordance with section 25 (7) of the Ordinance, against their apportion-ments and after a considerable delay the matter duly came up for inquiryin the District Court.
1 V89Z) 1 Q. B. 831.
POYSER S.P.J.—Ibrahim, v. Colombo Municipal Council.
The principal grounds for the appeal, as set out in the amended petitionof appeal, dated August 1, 1935, were that “ (a) the cost of a 9-inchsoil sewer cannot in law' be apportioned amongst the appellants and theappellants are not liable for the cost of the said sewer “ (b) the provisionof a rubble and metalled and surface painted carriageway was a highlyextravagant and unnecessary work of construction, having regard interalia to the location and importance of the said lane, the nature and volumeof traffic using the said lane and other relevant factors and considerations,it was quite sufficient to construct a gravelled roadway and the differencebetween the estimated cost of such a roadway and the actual cost of thesaid rubble and metalled and surface painted carriageway, to wit, a sumof Rs. 13,469.16, cannot and should not be apportioned amongst theappellants
The District Judge, after holding that the right of appeal wap notrestricted to the question of apportionment only, viz., the proper divisionof the sum of Rs. 36,869.16 among the owners of the premises affected,considered he could determine whether the provision of a soil sewer camewithin the definition of “ construction ” in the Ordinance and also whetherthe provision of a metalled macadamized road was necessary.
These matters were exhaustively dealt with by the District Judge andhe finally held that the soil sewer was not a work of “ construction ”, andthat the provision of a metalled and macadamized road was unnecessaryand he accordingly made a substantial reduction of the sum to be appor-tioned, but, acting under the provisions of section 92 (1) of the Ordinance,stated the following case : —
“ (1) As to whether, under section 25 (7) of the Housing and TownImprovement Ordinance, No. 19 of 1915, this Court as a tribunal ofappeal is only empowered to consider under section 25 of the saidOrdinance the question of apportionment amongst the owners of thepremises liable under the Ordinance to pay for works of construction.
“ (2) As to whether the question of alleged extravagance and lack ofnecessity in this case with regard to a rubble, metalled, and surfacepainted road is a question which could be inquired into by this Courtas a tribunal of appeal in considering the apportionment of costs asbeing a matter coming within the scope and meaning of ‘ cost ’ underthe provisions of the Ordinance relating to the apportionment of costs.
“ (3) As to whether the decision of a local authority with regard toworks of construction as to the necessity for works of construction canbe made the subject of an appeal to this Court as a tribunal of appeal.
“ (4) As to whether the provision of soil sewerage was rightly heldby this Court not to be included or to fall within the definition of‘ construction ’ contained in the said Ordinance.”
The first point that was argued in appeal on behalf of the Council wasthat the tribunal of appeal could not inquire into whether the resolutionof the Council was ultra vires, the only matter they could deal with wasthe Chairman’s apportionment of the cost of the work carried out, i.e.,whether a proper proportion of the expenses had been apportioned amongthe frontagers in accordance with section 25 (4), whether other premises,not fronting 42nd lane would be benefited, (section 25 (5)), and othermatters in regard to apportionment.
POYSER S.PJ.—Ibrahim v. Colombo Municipal Council.
Mr. Ferdinands argued that the expression “ such work ” in section 25means “ such work of construction Consequently the Chairman hadonly power to apportion the expense of work which could properly beincluded in the definition of construction, and, if he included the expenseof any work which did not come under that definition, the tribunal ofappeal could pfoperly delete such expense from the apportionment.
This point involves the true construction of section 25 (1) of the Ordi-nance and the definition of “ construction ” which are as follows : —
“25 (1) If any street, not being a public street, or any part thereofbe not constructed or maintained to the satisfaction of the localauthority, the local authority may from time to time resolve withreference to such street or part thereof to do any one or more of theworks comprised in the definition of “ construction ” in section 2 ofthis Ordinance ; and the expenses incurred by the local authority inexecuting any such work shall be apportioned by the Chairman amongthe premises fronting, adjoining, or abutting upon such street or partthereof, and shall be recoverable from the owners of all such of theaforesaid premises as are liable to be assessed for local rates in the samemanner and by the same process as a rate.”
“ 2 ‘ Construction ’ in the case of any street or thoroughfare includesprovision for the lighting of the street or thoroughfare and the supplyof water to its inhabitants, and its sewering, draining, levelling, paving,kerbing, metalling, channelling, and every method of making acarriageway or footway, and the provision of access to the street orthoroughfare.”
I think the contention of the Council is correct and I consider Mr.Ferdinands’ construction is incorrect. The words “ such work ”, in myopinion, mean the work of construction resolved on by the Council. Itwill be seen that in this Chapter of the Act the Council have various powers,and the Chairman, who is the executive officer of the Council, has variouspowers and duties.
There is not only an appeal against the Chairman’s apportionment ofthe expenses of “ work of construction ” but there is also, section 26, anappeal against any order of the Chairman under this Chapter in respectof which an appeal is not otherwise provided.
I can see nothing in this Chapter or in the Act as a whole to indicate*that a resolution of the Council could be made the subject of an appealand this in effect what the petitioners have sought to do.
Further, if the Chairman had refused to include in his apportionmentthe cost of the soil sewer, he would, in effect, be amending a resolution ofthe Council and that he obviously has no power to do.
There are no authorities directly in point. A number of English caseswere referred to but such cases related to the true construction of section150, the Public Health Act, 1875. The material part of this section is as:follows : —
“ Where any street within any urban district (not being a highwayrepairable by the inhabitants at large) or the'carriageway, footway orany other part of such street is not sewered, levelled, paved, metalled,flagged, channelled, and made good or is not lighted to the satisfaction ofthe urban authority, such authority may, by notice addressed to the
POYSER S.P.J.—Ibrahim v. Colombo Municipal Council.
respective owners or occupiers of the premises fronting, adjoining orabutting on such parts thereof as may require to be sewered, levelled,paved, metalled, flagged, or channelled, or to be lighted, require themto sewer, level, pave, metal, flag, channel or make good or to provideproper means for lighting the same within a time to be specified in suchnotice ”….
“ If such notice is not complied with, the urban authority may, ifthey think fit, execute the works mentioned or referred to therein ; andmay recover in a summary manner the expenses incurred by them in sodoing from the owners in default, according to the frontage of theirrespective premises, and in such proportion as is settled by the surveyorof the urban authority, or (in case of dispute) by arbitration in mannerprovided by this Act; or the urban authority may by order declare theexpenses so incufred to be private improvement expenses
It will consequently be seen that the provisions of this section vary■considerably from those of section 25 of the local Act, but it is of interestto note that in the case of In re an Arbitration between Stoker and Mayor,&c., of Morpeth1 Shearman J. (page 758), after consideration of earlier.authorities held “ (1) that the arbitrator has only power to decide thequestion of apportionment, and the meaning of that must be to decide,where there is a disputant, what is the proper proportion of the wholesum to be paid by the disputant; and (2) that the arbitrator has nopower to inquire into the reasonableness of the whole amount he has toapportion between the frontagers ”.
A further point taken on behalf of the appellants was that if the Councilhad wrongly included the cost of a soil sewer in “ work of construction ”and such work could not be inquired into by the Tribunal of Appeal, thepetitioners had no remedy even if the Council had acted ultra vires, andsuch a state of affairs could never have been intended by the Legislature.
I cannot agree ; if the Council were to act ultra vires, the Supreme Courtwould have power, under section 46 of the Courts Ordinance, to issue awrit of prohibition or other suitable mandate. See The King v. Elec-tricity Commissioners2.
For the reasons above stated, I would answer the first paragraph of thecase stated in the affirmative. It consequently follows that paragraphs 2and 3 must be answered in the negative. In regard to paragraph 4 therewas a long and interesting argument and we were invited to express an-opinion, thereon even if such opinion were to be “ obiter ”. In viewhowever of the answer to paragraph 1, I do not think it necessary ordesirable that we should express opinions that are not material to thedecision of this appeal.
I would allow the appeal and direct that the Chairman’s final appor-tionment shall be treated as the correct apportionment.
The Council will have the costs of this appeal and the proceedings infhe District Court.
.Koch J.—I agree.
1 112 Law Times Rep. 753.
» (1924) I. K. B. 171.
IBRAHIM et al. v. COLOMBO MUNICIPAL COUNCIL