088-NLR-NLR-V-45-MULLER-Appellant-and-MUNICIPAL-COMMISSIONER-COLOMBO-Respondent.pdf
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Muller and Municipal Commissioner, Colombo.
1944Present: Moseley S.P.J. and Wijeyewardene J.
MULLER, Appellant, and MUNICIPAL COMMISSIONER,COLOMBO, Respondent.-
10—D. C. (Inty.) Colombo, 68.
Housing and Town Improvement Ordinance (Cap. 199)—Petition of appeal byaggrieved party toTribunal ofAppeal—Timewithin which thepetition
should be lodged—Section 27.
The petitioner wasrequested bythe MunicipalCouncil to pay asum. of
money alleged to bethe amountapportioned tohim as his shareof the
cost of constructinga privateroad. In November, 1941, the petitioner
paid the amount under protest and in December, 1942, filed a petitionunder section 27 of the Housing and Town Improvement Ordinance-
asking for a refund of the money.
1 27 C. L. W. 73.
s 11 E. R. 1200.
6 32 N. L. R. 92.
106 E. R. 1027.
112 E. R. 892.
W0EYEWABDENE J.—Muller and Municipal Commissioner, Colombo 353
Held (on a preliminary objection taken by the respondent, the Com-missioner of the Municipal Council in the District Court, the Tribunal ofAppeal referred to in section 27) that the petition of appeal was filed intime.
T
HIS was a case stated for the opinion of the Supreme Court, undersection 94 of the Housing and Town Improvement Ordinance.
No appearance for appellant.
J. E. M. Obeyesekere, for respondent.
Cur. adv. vult.
May 30, 1944. Wijeyewardene J.—
The Municipal Council of Colombo took action under the Housingand Town improvement Ordinance for metalling or otherwise “ con-structing ” a private street known as Anderson road, Colombo, andrequested the petitioner in October, 1941, to pay Us. 424.44 alleged to bethe amount apportioned to bim as his share of the cost. In November,1941, the petitioner paid that sum to the Municipal Council “ underprotest and without prejudice to his legal rights”. In December, 1942^the petitioner filed a petition under section 27 of the Ordinance againstthe respondent, the Commissioner of the Municipal Council, and askedfor a refund of the sum of Bs. 424.44 paid by him. The respondentfiled a statement disputing the plaintiff’s claim.
When the matter came up for inquiry in the District Court—theTribunal of Appeal referred to in section 27—the respondent took apreliminary objection that the petition was not filed in time. Theobjection was upheld and the District Judge stated a case under section94 for the opinion of the Supreme Court on that question of law.
Now section 27 of the Ordinance which creates the right of appealdoes not mention any period of time within which the appeal should befiled. Section 96 enables the Governor to make regulations regardingthe matter, but, so far, no such regulations have been made. Underthese circumstances could it be said that the petitioner has not appealed'to the Tribunal of Appeal in time? The District Judge has answeredthe question in the affirmative, as he thought that the petition should,have been filed within a reasonable time and that a period of one yearcould not be considered a reasonable interval of time.
At the argument before us the Counsel for the respondent sought toesupport the order of the District Judge on the authority of Ran Menika v.Mudalihamy1 referred to by the District Judge. Thar^ was a decisionwith regard .to appeals under the Maintenance Ordinance, before it wasamended by Ordinance No. 13 of 1925. The earliest case on this questionof appeals under the Maintenance Ordinance was Fernando v. Fernandoz.In that case Bertram C.J., Ennis and de Sampayb JJ. held thatthere was no time limit to the right of appeal' under the MaintenanceOrdinance. There was not the slightest suggestion made in. that casethat though there was no such time limit, the appeals should be filedwithin a reasonable time. In 1922, Schneider J. followed that authority
1 (1923) 25 N. L. It. 254.2 (1921) 23 N. L. B. 31.
123. N. A 93349(11/49)
35*1 WIJBYEWABDEiv—. a.—Muller and municipal Commissioner, Colombo
in S. C. 240 P. C. Kegalla, 22,493 (S. C. Minutes of May 31, 1922) andentertained an appeal filed two years after the order appealed againstwas made. The next ease was Ban Menika v. Mudalihatny (supra)where Jayewardene A.J. observed that the appellant in that case wastrying to take full advantage of the judgment in Fernando v. Fernando{supra) and said—“ I think that appeals in maintenance cases must bebrought within a reasonable time ”, No authority was cited by thelearned Judge in support of that view and he expressed that view withoutany discussion of the recognised canons of interpretation.
Now section 27 of the Housing and Town Improvement o Ordinancereads—
“ Any person aggrieved by any order of the Chairman under thisChapter in respect of which an appeal is not otherwise provided, mayappeal to the Tribunal of Appeal ….
There is no reference to a reasonable period of time in this section.The language of the section is clear and unambiguous and a Court shouldnot attempt to construe it according to its own notions of what oughtto have been enacted. ‘‘ To depart from the meaning on account ofsuch views is, in .truth, not to construe the Act, but to alter it. But thebusiness of the interpreter is not to improve the statute; it is to expoundit ” (Maxwell on the Interpretation of Statutes, 7th Edition, page 5.)in Bradley v. The Board of Works for the Greenwich District1, the Courthad to consider whether an apportionment was made within time undersection 53 of the Metropolis Management Amendment Act (25 & 26Viet., c. 102.) In that case the Board constructed in 1868 a sewer in anew street, but no apportionment of its cost of construction, to be borneby the. owners of the houses in that street, was made until 1876. In1878 Bradley was charged before a Magistrate for failing to pay theamount due by him as his share of the cost and ordered to pay thatamount. On a case stated by the Magistrate the Court held in favourof the apportionment and Cockburn C.J. said—
‘ ‘ The only question we have .to consider is whether the apportionmentof the amount payable by the appellant was made within proper time.Now, turning to section 53 (of 25 & 26 Viet., c. 102.) we seek in vainfor any limitation of the time within which the apportionment is to becompleted. And as the Legislature have fixed no limit it is impossiblefor us to introduce one …. at all events we cannot amend theAct by inserting in it a provision which we do not find there.”
Even if it is conceded that the appeal to the Tribunal of Appeal shouldhave been filed within a reasonable time, could it be said that a period ofone year is. not reasonable? This appeal is for all practical purposesan action to recover money • paid under protest. A regular action forenforcing such a claim could be filed within three years. Why shouldit then be regarded as unreasonable for a petitioner to delay for one yearbefore presenting his petition to the Tribunal of Appeal?
' I set aside the order of the District Judge and remit the proceedingsto the District Court for inquiry. The respondent will pay in any event
1 {.1878) 3 Q. B. D. 384.
KEUNEMAN J.—The King v. Martin
355
the costs of the petitioner in respect of the proceedings up to date in theDistrict Court. The appellant will not be entitled to any costs in thisCourt as he was not represented at the argument before us. All futurecosts will be in the discretion of the District Judge.
Moseley S.P.J.—I agree.
Appeal allowed.