033-NLR-NLR-V-08-LA-BROOY-PERERA.pdf
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LA BBOOT v. PEBEBA. *
M. C„ Colombo, 7;813.
Municipal Councils' Ordinance, No, 7 of1867, s. 188—Failuretoremove
sunshades projecting into street—Meaning of ** public street,“ uncoveredaqueduct ”—“ Permission " in s, 184—Bight of Council to withdraw it.
Per curiam (Moncbeiff, J., dissecting).'—In section 183 of “ TheMunicipal Councils' Ordinance,1887, 11the word “ publicstreet ” does not
mean "street" as defined insection3.It means theroadway as used
by the public for their passage along it, and might include a coveredaqueduct, drain, or sewer, but not an uncovered one.
The words " uncovered " before the words " aqueduct, drain, or sewer "-allies as well to drains and sewers as to aqueducts.
If a sunshade allowed to be put up by the Municipal Council doesnot project beyond the .outer edge ofthe drain,it cannotbesaid to
■obstruct in any way the free passage of the public along the roadway.
8emble that the permission granted by the Chairman of the MunicipalCouncil under section 184 to put upverandahs,balconies,&c.,is not
revocable capriciously.
Per Middleton, J.—The Municipality,' in granting a permissionunder section 184, give a great deal more than a simple license.
They may confer upon* thegranteearight to carryout works which
may cost him very considerable sumsofmoney, and itis neither reason-
able nor equitable that when a man has expended large sums of moneyon the faith of a duly granted right he should be exposed to a capriciousrevocation of it on the part of the grantor.
Section 183, even if it does not apply to obstructions lawfully madeunder section 184, although my viewis that itmust, atleast shows
that the Legislature recognize the equity of compensation where itbecomes necessary to order lawfully erected obstructions to be removed.
Per Latabd,C.J.—Aprojection, encroachment, or obstruction
made by permission on terms, conditions, and limitations would beremovable under section 183 on the expiry of the term, or on account ofthe happening or breach of one of the conditions attached to the permis-sion, and being lawfully made in terms of the permission granted undersection 184 the' grantee would be entitled to the compensation mentionedin the proviso to section 183, so that neither section 183 nor its provisowould be rendered inoperative by reason of it being held that theterms of any particular permission granted under section 184, not beingsubject to any limitation or condition, amounted to an irrevocable grant.
T
HE facts of this case, which was argued on 4th April, 1905,are fully set forth in the judgment of Middleton, J .
Pereira, K.C., for accused, appellant.
Van Langenberg (with Bawa), for respondents.
l§th April, 1905. Middleton, J.—•
The accused in this case was charged that “ on or about the22nd 4ay of October, J904> he did fail nr neglect, after notice inwriting issued under section 183 of- Ordinance. No. 7 of 1887
1905.
AprU 19.
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1905.
April 19.
Mu>di®ion,
J.
from the Chairman of the Municipal Council, and served on himon the 6th October, 190^, to remove two projections, namely, twosunshades at his premises Nos. 163/165, St. Joseph’s street, whichproject into and encroach upon the streets known as St. Joseph’sstreet and New Urugodawatta road, to carry out the provisions ofthe said notice. ” He was convicted on the above charge andsentenced to pay a fine of Bs. 50, and in default to suffer simpleimprisonment for one month “if he fails to remove the encroach-ment within one week from payment by the Municipal Councilof the compensation to be hereafter assessed. ’'
The accused appealed against this conviction, and the MunicipalCouncil appealed against, that part of the order of the Magistratewhich obliged them to pay compensation to the accused.
The evidence heard was to the effect that the accused had putup unshades that projected over the drain running along thefront of' his house. It was not proved either by plan C or bythe oral evidence that the sunshades projected beyond the edgeof the drain adjacent to' the roadway. It was also in evidencethat the accused had received a permit from the Chairman of theMunicipality to build according to a plan marked £, whichshowed sunshades; that in June last he got notice to remove thesunshades; that he took them down and shortened them, and thatthe drip of the rain water from the sunshades is now into thedrain, and that he had provided gutters on the sunshades. Thereis no evidence to show that the sunshade in question would infact in any way obstruct the passage of a public roadway, norwas there any evidence that if they did drip into the drain sucha drip would do any damage.
In the first place, as I read the conviction in thise case, thedefendant is only to be fined Bs. 50, or in default imprisoned fora month if he fails to remove the alleged encroachment withinone week from' payment by the Municipal Council of the compen-sation to be hereafter assessed.
He was not ordered to remove the alleged obstruction onpayment of compensation, and fined in addition, as appears to havebeen supposed during the argument.
Before the fine can be levied the Municipality must pay thenecessary compensation; and that is no doubt the reason of theirhross-appeal.
For the defendant appellant, it is contended that no contraven-tion of section 188 of the Ordinance has been proved,inasmuch as the sunshade is not shown to project beyond thatedge of the open drain or aqueduct which is next the public roadway.
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Aa I read that section it provides (1) againBt any obstruction iQ06.(
of the free passage along the public street; (2) against any AprUlobstruction into or upon any uncovered aqueduct, drain, or sewer,
It is sought by the Municipality to give the word 44 street ” inthis section an interpretation under section 3, which would bringwithin its meaning the drain or aqueduct itself, even thoughuncovered.
I cannot, however, believe, looking at the introduction of theword 44 public ” before the word 41 street ” in section 183 and theprohibitory part of the section, that the Legislature meant to usethe Word 44 street ” in the sense given it in section 3, or could havethought that any vehicle or person would have any right or evenwish to use an uncovered drain for passage As part of the street.
In my opinion the words 44 public street ” in that section meanthe roadway as used by the public for their passage along it, andmight include a covered aqueduct, drain, or sewer, but not anUncovered one. So long as the sunshade does not project beyondthe outer edge of the drain I cannot see that it obstructs in anyway the free passage of the public along the roadway, which inmy opinion is what' the first prohibitory part of the section isaimed at. If it merely hangs over the drain, even with thewater dripping from it, I cannot see how it can obstruct, project,or encroach into or upon the drain, and there is no prohibitionagainst overhanging the drain.
Some doubt was expressed during the argument as to whetherthe word 44 uncovered ** applied on the grammatical constructionof the sentence to drain or sewer as well ad aqueduct.
My experience of the appearance of these so-called aqueducts isthat they act as both drains and sewers; and other sections ofthe Ordinance show that the Legislature contemplated sewers anddrains being uncovered.
I think that the word 44 uncovered " in the section applies aswell to drains and sewers as to aqueducts. In my view of thematter, therefore, no obstruction or. encroachment within thewords of section 183 was proved against the defepdant.
For the Municipality, however, it was argued, assuming thesunshades to be an obstruction, that even if the Chairman gave apermission under section 184 he could withdraw it arbitrarily,and that permission having been withdrawn in the case beforeus, the defendant was an offender in renewing it after an allegedendeavour to bring it – within the terms of the Ordinance, andbecause when it was re-erected it was not lawfully erected,therefore the Municipality were not compellable to pay com-pensation under the latter part of section 183.
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In my view this contention is not supported by reason orApril 19. justice.
iSwamtos, The Municipality, in granting a permission under section 184,give a great deal more than a simple license.
They may confer upon the grantee a right to carry out workswhich may cost him very considerable sums of money, and it isneither reasonable nor equitable that when a man has expendedlarge sums of money on the faith of a duly granted right he shouldbe exposed to a capricious revocation of it on the part of thegrantor.
Section 18S, even if it does not apply to obstructions lawfullymade under section 184, although my view is that it must, at lehstshows that the Legislature recognize the equity of compensationwhere it becomes necessary to order lawfully erected obstructionsto be removed.
Even if that section did not apply, in my opinion the permissionof the Chairman would involve the grant of an interest whichwould on. the analogy of the cases quoted in Wood v. Leadbitter(13 M. & W. 838) be irrevocable.
It is not necessary for me to decide thiB latter contention of theMunicipality, as in my opinion the. erection of the sunshades hasnot contravened section 183, .and for that reason I would hold thatthe conviction is bad and should be quashed and the accusedacquitted.
Moncrkiff, J.—
According to the decisions of the English Courts the meaningof the word “ street ” in statutory provisions of this description isa matter of law; it does not depend on the popular sense of theword. Section 3 of the Municipal Councils’ Ordinance certainlymakes the drain in question part of a street “ over which thepublic has a right of way,” and therefore part of a public street.The words in the interpretation which include drains have beenadded to the. terms borrowed from English Acts. This drain isoverhung by the sunshades; the erection therefore of the sun-shades falls within section 183 of the Ordinance.
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It is said that the sunshades, which are of modest dimensions,escaped observation when the plans submitted by the appellantwere examined and permission for their erection was given.S^jtion 184 confers on the Chairman power to give ■ permis-sion.
Section 183 gives the Chairman power to order the removal ofcertain obstructions, whether made before or after the commence-ment of the Ordinance and whether made " lawfully or not.
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I am unable to agree with the suggestion that the “ lawfullymade ” obstructions contemplated do not inolude obstructionsmade by permission of the Chairman. No obstruction could belawfully made after .the commencement of the Ordinance exceptby permission of {he Chairman.
It is said that the permission given was an irrevocable grant;for no limit of time was fixed. That is a large construction toplace on words which are harmless in appearance. A mere licenseis revocable; it simply makes an action lawful which without itwould have been unlawful. I have been unable to find amongEnglish decisions any authority in point. From that fact I shouldhavei inferred that the permission was not meant to be withdrawnif the Ordinance had not expressly provided for its withdrawal. .To employ the terms used in Thomas v. Sorrell (1679), Vaughan351, the permission or license made lawful the erection of thesunshades, which would otherwise have b^n unlawful. As Ihave said, the Chairman is authorized to' remove projectionslawfully made after the commencement of the Ordinance orhereafter (that is, made by his permission); and then, accordingto the argument, he is forbidden to remove them because theywere lawfully made. I do not think that the Chairman's per-mission was meant to be irrevocable; I think, the provision saysexactly the reverse.
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The Legislature in drafting section 183 had in view sections 69and 70 of “ The Towns Improvement Clauses Act, 1847, ” from whichprovisions it is plain that the application of compensation for theremoval of projections, erected after the commencement of ourOrdinance or “ hereafter, ” was intentionally inserted. Section 70of the . Act mentioned provided “that if such obstructions orprojections shall have been lawfully made the Commissionersshall make reasonable compensation to every person who suffersdamage by such removal or alteration. ” The section applies onlyto projectionserected beforethe passing of the SpecialAct.
Those erected after the passing of the Act are dealt with in section69; no compensation is given for removing them, and in each casethe projection must be “ an obstruction to the safe and convenientpassage alongany street. ”Here obstructiohto “ safeand
convenient passage ” is not an essential but analternative.The
extension of compensation in our Ordinance to cases arising afterthe commencement of the Ordinance or hereafter is evidentlvdeliberate, and negatives in my opinion the suggestion of ^anirrevocable grant.
s*
I regret tobe unable toagree with themajority ofthe
Court.
1905.
April 19.
Monobehtf^
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1905.
April 19.
Layard, C.J.—
I have had the great advantage of reading both my brothers*judgments. It is unnecessary for me to repeat, here the facts ofthis case, as they will be found fully recited in the judgment ofmy brother Middleton. Further, it is not requisite for me, forthe purpose of this judgment, to decide whether when permissionsubject to no terms or conditions is granted under section 184 ofOrdinance No. 7 of 1887 the person obtaining such permission hasobtained an irrevocable grant, or whether the Chairman is justifiedin giving notice under section 188 notwithstanding that permis-sion, as in my opinion section 183 is inapplicable to the circlingstances of the present case. I wish, however, to point out that'even if we declared such a grant was irrevocable it would not, asargued on behalf of the Municipal Council, necessarily renderinoperative so much of section 183. as refers to projections,encroachments, or obstructions erected after the commencementof the Ordinance, and further that the enactment in the provisofor compensation in respect of such projections, encroachments,or obstructions lawfully made after the commencement of theOrdinance does not necessarily negative an irrevocable grant.For the Chairman in granting permission under section 184 mayattach to it such reasonable terms, conditions, and limitations asto him seem meet, and need hot give such a permission as wouldamount to an irrevocable grant. A projection, encroachment, orobstruction made by permission on such terms, conditions, andlimitations would be removable under section 183 on the expiryof the term, or"’on account of the happening or breach of one of theconditions attaching to the permission, and being lawfully madein terms of the permission granted under section 184 the granteewould be entitled to the compensation mentioned in the proviso.to section 183, so that neither section 183 nor its proviso wouldbe rendered inoperative by reason of it being held that the termsof any particular permission granted under section 184, not beingsubject to any limitation or condition, amounted to an irrevocablegrant.
I agree with my brother Moncreiff that section 3 of theOrdinance No. 7 of 1887 gives a meaning to the word “ street, **which certainly would make the drain in question part of a street.{That meaning, however, the’ section itself enacts, is only to applyif the context permits of it. The question then remains, does thecontext in section 183 permit of the word “ street ” as used inthat section being interpreted as applying to an “ uncovereddrain ? ” Beading the section carefully it appears to me that thecontext requires that a distinction should be drawn between the
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words " public street " as there used and the words "uncovered 1905.aqueduct, drain, and sewer. " The portion of the section referring April 19.to street uses the words "safe and convenient passage along layabd^C.J'any public street; ” these words are not apposite to uncoveredaqueducts, drains, or sewers, which certainly are not convenientpassages or ways for the public to walk along. Again, if theLegislature intended that the words "public street" as used insection 188 should include an " uncovered drain," it would nothave enacted thatr portion of the section dealing with uncoveredaqueducts, drains, and sewers. The fact that the section has madespecial and separate provision with regard to uncovered aqueducts,drains, and sewers, is to me a clear indication that the intentionwa& to draw a distinction between the words " a public street " asused in that section and the words " an uncovered aqueduct, drain,or sewer. " There is good reason for the Legislature drawing thedistinction; a sunshade or other projection overhanging an un-covered drain, as far as I can see, would cause no damage or injuryto 1die drain, whilst if it overhangs a portion of the roadway therain dropping from the sunshade might cause injury to the road.
The Legislature has expressly omitted to enact in section 183that any projection overhanging an uncovered aqueduct, drain, orsewer must be removed after notice, and the enactment in thatsection regarding a public " street, " when read with the contextand with that portion of the section which expressly and definitelydeals with “ an uncovered aqueduct, drain, or sewer, " seems todistinguish between the latter and a " street " and to require thatin interpreting the section I should exclude them from the street.
Further, I am justified in so doing in view of the Legislaturehaving expressly enacted in section 3 that " street " should notbe. given the meaning assigned to it in that section if the contextotherwise requires, and the context in my opinion does other-wise require.
1 agree with my brother Middleton that the conviction is bad andmust be set aside. The cross-appeal with regard to compensationconsequently need not be considered and must be dismissed.