Municipal Council of Badulla v. Ratnayake
Municipal Council of Badullav.
COURT OF APPEAL.
VYTHIATJNGAM, J. AND RANASINGHE. J.
c. a. (s. c.) 263/72 (f)—d. c. badulla 7593/m.
February 14, 15. 16, 1979-
Electricity Act, (Cap. 205) section 3 (1)—Duty of licensee to supplyelectricity—Premises to be used for unauthorised purpose.—Whether arelevant ccvsiaeration in granting supply.
Damages—Breach of statutory duty—Whether licensee liable on proof ofbreach alone—Notice under section 307 of the Municipal CouncilsOrdinance—When necessary.
Sri Lanka Law Reports (1978-79) 2 S. L.R.
The Electricity Act No. 19 of 1950 makes provision for the appointmentof a hcencee to be charged with the duty of supplying energy to occu-piers or owners of premises who satisfy certain requirements. TileMunicipal Council of Badulla was such a licencee. The Act also madeprovision for the imposition of penalties in the event of default.
The respondent made an application to the Council for the supply ofenergy to his premises and was required to pay a deposit. Aftercommencement of the work but prior to its completion the Councilinformed him that no purpose would be served by supplying electricityto his premises since it could' not grant a licence for the trade whichhe proposed to carry on in those premises. The deposit less labourcharges was returned. The respondent sued the Council for damagesfor failure to perform a statutory duty.
The purpose for which the supply was asked for is totally irrelevantto the consideration as to whether the Council was under a duty togive the supply. There has been a breach by the Council of a dutyimposed upon it which infringes a correlative right vested in therespondent. The respondent is entitled to legal redress on proof ofbreach of duty alone and damages are presumed to have been sustained.
The notice required to be given under section 307 of the MunicipalCouncils Ordinance is necessary only when the Council is sued inrespect of any act done or intended to be done under that Ordinanceor any by-law, regulation or rule made thereunder. As the defendant wassued in respect of a breach of duty imposed by the Electricity Act suchnotice was not necessary.
Cases referred to
The Negombo Municipal Council v. Fernando, (1961) 63 N.L.R. 512.
Woodcock et al v. South Western Electricity Board, (1975) 2 All
Corea v. The Urban Council of Kotte, (1958) 62 N.L.R. 60.
Nallammah et al v. Vijayaratnam, (1970) 79 C.L.W. 41.
Glamorgan County Council v. Carter, (1962) 3 All E.R. 866.
David v. Abdul Cader, (1971)77 N.L.R. 18.
David v. Abdul Cader, (1963) 65 N7L.R. 253.
Ellis v. Vickerman, (1954) 3 S.A.L.R. 1001.
Black v. Fife Coal Co. Ltd., (1912) A.C. 149; 106 L.T. 161; 28
Cape Central Railways v. Nothling, 8 S.C. 25.
Anns v. London Borough of Merton, (1977) 2 All E.R. 492 ; (1977)
2 W.L.R. 1024 H.L.
Don Albert v. Municipal Revenue Inspector, (1962) 65 N.L.R. 1:
64 C.L.W. 75.
Weerasooriya Arachchi v. The Special Commissioner, GalleMunicipality, (1967) 69 N.L.R. 437.
APPEAL from the District Court, Badulla.
H. W. Jayewardene, Q.C., with Laxman Per era, for the defendant-appellant.
C. Ranganathan, Q.C., with A. P. Niles, for the plaintiff-respondent.
Cur. adv. vult.
CA Municipal Council of Badulla v. Rafnayake (Vythialingam, J.)143
April 3, 1979.
The plaintiff-respondent sued the defendant-appellant—theMunicipal Council of Badulla, for damages for the failure toperform a statutory duty to supply electric energy to premisesNo. 52, Passara Road, of which he was the occupier. After trialthe District Judge held with the plaintiff and entered judgmentfor him in a sum of Rs. 12,000 and costs. The defendant Councilhas appealed against that judgment and decree.
The main contention of the defendant-appellant was that theplaintiff wanted the supply of electric energy for an illegalpurpose, viz. the carrying on of a trade declared by regulationsto be a dangerous or offensive trade and which was prohibitedin the area in which the premises were situated, and that itwas therefore, under no duty to supply the electric energy.Indeed if it did, so it was argued, it would be guilty of aidingand abetting the commission of an offence by the plaintiff.
Admittedly the defendant Council was the licensee appointedunder the provisions of the Electricity Act, No. 19 of 1950. Itwas charged with the duty of giving and continuing to give asupply of energy to occupiers or owners of premises within thearea, fulfilling the requirements of the Act and the conditionsof the licence. Section 33 (1) of the Act provides that “Alicencee shall, upon being required to do so by the owner oroccupier of any premises situated within one hundred and fifty-feet from any distributing main of the licensee in which he isfor the time being required to maintain or is maintaining asupply of energy for the purposes of general supply to privateconsumers, give and continue to give a supply of energy forthose premises in accordance with the provisions of the licenceand of the regulations”
Section 64 (1) makes provision for penalties to be imposed onthe licensee if he makes default in supplying energy to anyowner or occupier of premises to whom he is required to supplyenergy by or under the provisions of the Act or of his licence.The licensee when, it enters into a contract for the supply ofelectric energy is precluded from imposing on the consumerconditions or terms which are not authorised expressly by theprovisions of the Act or by regulations framed in accordancewith the provisions of section 46 of the Act—The NegortiboMunicipal Council v. K. M. J. Fernando (1).
It is not in dispute that the premises in suit is within onehundred and fifty feet from a distributing main of the licensee.
Sri Lanka Law Reports (1978-79) 2 S. L.R.
It is also necessary that the person applying for supply should beeither the owner or the occupier of the premises to which thesupply is sought. And in this context “occupier” means alawful occupier and not, for instance, a mere squatter—Wood-cock et al v. South Western Electricity Board (2). Someattempt was made to argue that the plaintiff was not theowner or occupier of the premises in question. But the evidenceclearly establishes and the trial judge was right in holdingthat the plaintiff was the occupier of the premises. The soilbelonged to some Tamil people and one R. M. Appuhamy con-verted the premises to a motor garage after his application todo so (D3) was allowed. The plaintiff said that he took thepremises on rent from Appuhamy and that he was in charge ofthe premises and that his things were there in the premises.This evidence was not controverted by any other evidence.
It was not the defendants’ case that the plaintiff was for anyother reason not qualified to receive the supply of electricenergy to the premises in question. He made his application(P3) sometime in February 1968 and he was asked to pay asum of Rs. 530 which he deposited and the defendant acceptedin respect of the estimated cost of the necessary installation andsupply of electric energy. Work was commenced thereafter andthe line was constructed. As there was delay and failure tocomplete the work the plaintiff protested and ultimately sentthe letter PI through his lawyer in November 1968. He receivedthe reply dated 20th November, 1S68, that the Council was notlegally in a position to grant a licence to carry on the trade ofmilling paddy in the area which had been proclaimed as aresidential area and no useful purpose would be served bysupplying electricity. They returned a sum of Rs. 499.03 lesslabour charges out of the deposit of Rs. 530 made by theplaintiff.
Ordinarily a trade which is dangerous or offensive can becarried on provided a licence is obtained for that purpose.Because such trades may be a hazard to the safety of personsand property in the area and may affect the health, comfort andwell-being of its residents the local authority considers it appro-priate that by-laws should be passed to regulate such tradesand prescribe conditions under which such trades can becarried on in safety. But in some cases there may be a totalprohibition against carrying on of such trades in any given area.
In the instant case the by-laws D7 of the defendant councilprovided that no person shall carry on, within the limits ofthe Council, in any place any dangerous or offensive trade
CA Municipal Council of Bsdulla v. Ratnayake (Vythialingam, J.)145
without an annual licence from the Chairman which licencethe Chairman shall issue to all persons complying with theconditions provided for the issue of such licence. Originally themilling of paddy was not declared to be an offensive ordangerous trade. But in the regulations D8 made in 1948 anoffensive or dangerous trade was defined to include “ the millingof paddy, wheat or kurakkan or any other grain, by machineryAt that time therefore a person could carry on the trade ofmilling paddy provided he obtained a licence for that purpose.
In 1952, however, a zoning scheme for an urban developmentarea comprising the administrative limits of the Badulla UrbanCouncil was approved by the Minister (Dl) under section 28 (3)of the Town and Country Planning Ordinance (Cap. 269).Admittedly the premises in question fell within an areareserved under the scheme for residential buildings. Part Vof the regulations sets out that no person shall within a resi-dential area erect a new building (Reg. 2 b) or re-erect orextend or use an existing building (Reg. 4) for carrying on adangerous or offensive trade enumerated in the Fifth Schedule.The only exception is in respect of a building which was alreadybeing used for this purpose prior to the coming into force of theorder. The premises in question was not so used. Item 23 inthe Fifth Schedule is “ the milling of paddy, wheat, kurakkanor grain by machinerySo that now within this area onecould not carry on this trade under any circumstances.
In his application P3 in cage 8 the plaintiff had stated that the"supply will be required for business purposes for a paddyhalier ”. The question is whether the defendant is, by or underthe provisions of the Act or the terms of his licence, entitled torefuse to supply the electric energy on the ground that the pur-pose for which it is required is to enable the plaintiff to carry ona trade which ha is not entitled to carry on and that no usefulpurpose would be served by giving the supply. There is, underthe Electricity Act, a duty cast on the licensee to give and con-tinue to give the supply to an occupier or owner of premiseswho is otherwise qualified to ask for it.
Mr. Jayawardene for the defendant-appellant submitted thatthe trial Judge confused between the grant of a power and theimposition of an obligation in the nature of a duty with a cor-responding right in another. In analysing the scope of the pro-visions of section 33 of the Electricity Act, H. N. G. Fernando,
J.said at page 517 in the case of The Negombo Municipal Coun-cil v. K. M. J. Fernando (supra) “ without reproducing againthe language of that section which is framed in the form of the
Sri Lanka Law Reports (1978-79) 2 S.LR.
imposition of an obligation on the licensee, that section, in myopinion, amounts to nothing less than provision which confer^upon the occupier of premises in proximity to a distributingmain a right to be given a supply of energy in accordance withthe provisions of the licence (granted by the Minister to the localauthority) and of the regulations made under the Act. In otherwords, an occupier has a right to point to the provisions of thelicence and to regulations under the Act and to insist that if hiscase falls within the scope of those provisions, the local autho-rity must give and continue to give a supply of energy for hispremises, and if the authority makes default in doing so theauthority is liable to be prosecuted and punished under sectiom64
Besides, quite apart from prosecuting the licensee undersection 6'4 the occupier or owner of the premises who is quali-fied to receive the supply can enforce the performance of theduty by the licensee by means of a writ of mandamus. Thus is®the case of Corea v. The Urban Council of Kotte (3) in issuinga writ of mandamus for the performance of this duty by alicensee Sansoni, J. pointed out at page 63 “The basis of thepetitioner’s, application is section 33 (1) which casts a duty oma licensee, when he is required to do so by the owner or occupierof any premises situated within 150 feet from a distributingmain, to give and continue to give a supply of energy for thosepremises and to furnish and lay any service lines that may benecessary for the purpose of supplying that energy. There is aduty cast upon the first respondent by the Act and it is a dutywhich the petitioner is entitled to enforce by mandamus whenthere has been a refusal to carry it out ”.
He said earlier that he did not think that a criminal prosecu-tion under section 64 is an alternative legal remedy to mandamusand certainly it is not as convenient, beneficial or effectual asthe remedy that the petitioner had sought in that case, for hewas more interested, naturally, in obtaining a supply of electri-city to his premises and the institution of criminal proceedingswould not avail him in that respect. So that unless there wassomething to the contrary in the provisions of the licence or inthe regulations made under the Act the defendant was under aduty under the Act to give or continue to give, and the plaintiffhad a right to receive, the supply of the energy. We have notbeen referred to any provisions in the licence or in the regulationsmade under the Act, to the contrary.
The purpose for which the supply is asked for is totally irre-levant to the consideration as to whether the defendant was
CA Municipal Council of Badulla v. Ratnayake (Vyfhialingam, J.)147
under a duty under the Act to give the supply. The supply ofelectric energy is to the premises and not for a purpose. Indeedin his application P3 it was totally unnecessary for the plaintiffto have stated that the purpose of the supply was to operate a“ paddy huller ”. It was not one of the particulars asked for by(the defendant. The application is in a cyclostyled form cage 8 ofwhich is as follows :—“8. Supply will be required for DOMES-TIC, BUSINESS * purposes At the bottom of the form against(the asterisk are the words “ strike out whichever is inapplicableSo that all that plaintiff need have done was to strike out theword DOMESTIC. He need not have added the words “for apaddy huller If this was a material requirement the defendantcouncil would have included it in the form itself.
That the defendant council did not consider the purpose forwhich ttie supply was required was material is shown by anothercircumstance. It accepted the plaintiff’s application in the formin which it was submitted even though the purpose for whichthe supply was required was stated to be for operating a paddyhuller. It called upon the plaintiff to deposit a sum of Rs. 520and after he had done so it commenced the work and laid out thelines. It was sometime later that it refused to give the supplyon the ground that milling of paddy could not be carried on inthat area. It was not as if the defendant was unaware of thisat the time the plaintiff’s application was accepted. Appuhamyhad made a Building Application in respect of these identicalpremises to convert it from a running repair garage into a placefor keeping and using a rice and paddy cleaning machine.
The Public Health Inspector Dehigama inspected the premisesand made his report D6 dated 3.11.1967 in which he pointed outthat the trade proposed to be carried on was an offensive tradeand that the premises falls within the area reserved for residen-tial purposes under the Zoning Scheme. This report was madesome months prior to the application P3 of the plaintiff. Thisapplication of Appuhamy was considered by the Sanitation Com-mittee on 15.3.1968 and was rejected by three votes to two andsubsequently confirmed by the Council by seven votes to six(P10). So that at the time the plaintiff’s application was consi-dered and accepted the defendant Council was well aware thatthe premises to which the supply was requested was situated ina residential area in a planning zone. The only conclusion onecan come to is that the defendant Councli at that time was ofthe view that in the discharge of its duty as a licensee underthe Electricity Act the purpose for which the supply of energywas asked for was an irrelevant consideration.
Sri Lanka Law Reports (1978-79) 2 S. L.R.
This is as ii should be. For if the plaintiff carried on a trade orprofession which he was prohibited by the regulations fromcarrying on then he would be liable to prosecution and punish-ment. This has nothing to do with the Electricity Act. Howeverit is obvious that the plaintiff know nothing about the premisesbeing situated in a residential area of a planning zone in whichthe carrying on of the trade of milling of paddy was prohibited!as being an offensive or dangerous trade. He said in his evidencethat he did not at any time intend to contravene the law andthat if he could not carry on the trade without a licence he wouldapply for a licence. If a licence was refused he would not carryon the trade but use the supply to carry on some other businessin the premises. The trial Judge has accepted this evidence andsaid in his judgment that the plaintiff is entitled to credit whenhe says; that granted the electric supply he would not haveengaged in anything that was not permissible.
In this connection we were referred to the case of Nallammakel al v. Vijayaratnam (4) where it was held inter alia, that thedefendant’s application for a licence to run a rice mill was notin conformity with the by-law 1 (1) (a) and by-law 7 of tfoe-Jaffna Municipal Council as admittedly there was another dwell-ing house on the other side within 145 feet of the proposed miffand the licence could not have been granted without doing some-thing illegal. What was held in that case was that there was aprohibition against issuing a licence to run a rice mill if there was;a dwelling house within 200 feet of it and since there was a dwel-ling house within 145 feet of the proposed mill the Council itselfwould be doing something illegal or contrary to the by-laws if itissued the licence. In the instant case the defendant Council!would be doing nothing contrary to any laws or by-laws bygiving the supply of energy. It would be the plaintiff who wouldbe doing something illegal if he operated a paddy mill in spite
o.f the prohibition. If given the supply he may do somethingperfectly lawful.
Another case to which we were referred was the case ofGlamorgan County Council v. Carter (5) to show that the useto which the energy should be put was a legal use. But that casedealt with the question as to whether a planning permission wasnecessary and turned on the interpretation of the word “ use ”in section 12 (5) of the Town and Country Planning Act 1947,which omitting unnecessary words is as follows :" Notwith-
standing anything in this section permission shall not be requir-ed under this part of the Act—.. (c) in the case of land whichon the appointed day is unoccupied in respect of the use of the
CA Municipal Council of Badulia v, Ratnayake (Vyfhiaiingam, J.)149
land for the purpose for which it was used” It was held that
the word “ use ” in this context must mean lawful use and con-sequently that the respondent whose occupation was illegal couldacquire no rights. But this case has no relevance to the facts ofthe instant case for the purpose for which the supply of electri-city was required is irrelevant. Besides here there has been noillegal use to which the supply has as yet been put. We are onlyin the realm of intention which has not yet been turned intoreality and which can at any moment be changed.
I hold therefore that there has been a breach by the defendantCouncil of its duty imposed on it by the Act as a licensee anda breach of a right conferred by the Act on the plaintiff. Cansuch a breach without more confer on the plaintiff a right toclaim damages from the defendant ? The trial Judge held thatit did. In this judgment he has stated “ It is not seriously con-tended, and it does not appear that the defendant acted from illwill, and it is perhaps understandable that the defendant thoughtthat having refused Appuhamy’s building application it hadnothing further to say to the plaintiff. But all that cannot availthe defendant and is irrelevant. What is relevant is that theplaintiff complains of the breach of an obligation imposed bythe Act on the licensee and the breach of the right conferred bythe Act on him”. And he holds that the person subject to theduty having committed a breach of it his act is equivalent toculpa.
Mr. Jayawardene however contends that to enable the plain-tiff to maintain an action for damages it is not enough for himto show simply that there was a breach of a statutory duty butmust prove further that the defendant was either negligent inthe performance of his duty or was actuated by ill will or malice.But in the case of David v. Abdul Cader (6) it was held other-wise. In that case the Chairman of a local authority offered alicence to the plaintiff to operate a cinema but subject to therestriction that “ the Council’s lights should be employed provi-sionally between the hours 9.30 p.m. to midnight daily and 6 p.m.to 9.30 p.m. on every other day. ” The plaintiff refused to acceptthe licence and brought this action claiming damages.
The District Judge held that the defendant had not wrong-fully or maliciously refused to issue the licence as he had notacted out of ill will or bad faith. In appeal it was held that theexcuse which the trial judge was able to find for the conductof the defendant did not relieve him of liability. H. N. G.Fernando, C.J. pointed out at page 23 “and the defen-
dant, in refusing the licence for which the plaintiff applied and
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
in offering a licence which contained an invalid restriction,acted in a manner not authorised by law, and denied to theplaintiff his right under the law. This denial constituted a breachof the duty which the defendant owed, to issue licences under theOrdinance to persons entitled to such licences. The judgmentof the Privy Council at an earlier stage of this action contem-plated that under the Roman Dutch Law such a breach of dutymight well be actionable ”.
Mr. Jayawardene submitted that this was based on a mis-conception of the judgment of the Privy Council which wasdelivered in an earlier stage in the proceedings in the samecase—David v. Abdul Cader (7) in regard to two issues whichwere tried as preliminary issues of law. In the lower Courtthe action was dismissed on the ground that it did not disclosea cause of action against the defendant in his personal capacity.In appeal the Supreme Court did not decide this question butdismissed the action on the ground that there was no rightvested in the plaintiff and that he could not maintain an actionfor damages even if the licensing authority had acted mali-ciously in withholding the licence. The Privy Council set-aside this judgment and held that the action was properlyconstituted and that “ it seems impossible to say that the respon-dent did not owe some duty to the appellant with regard to theexecution of his statutory power; and if as pleaded he had beenmalicious in refusing or neglecting to grant the licence, it isequally impossible to s,ay without investigation of the factsthat there cannot have been a breach of duty giving rise to aclaim for damages ”.
The Privy Council stated that “such consultation as theirLordships have thought it wise to make of the institutionalwriters on Roman Dutch Law, Yoet, Lee and Wille has not ledthem to think that the conceptions of that law would regard asnecessarily inadmissible a right of compensation to a plaintifffor a malicious invasion of his statutory ‘rights’ to have hisclaim to a licence subjected to bona fide determination by apublic authority They did not decide what would amount toa “ malicious invasion of his statutory rights ” but left it to bedecided at the trial by the lower courts in accordance with theprinciples of the Roman Dutch Law. But certainly H. N. G.Fernando, C J. was right in saying that the Privy Council“ contemplated that under the Roman Dutch Law such a breachof duty might well be actionable” and on a consideration ofcertain of the Roman Dutch Law writers he concluded that it
CA Municipal Council of Badulla v. Rafnayake (Vyfhialingam, J.)151
was not necessary to prove ill will or spite and that it was im-material that the object which the defendant had in view wasa laudable one. There was, if I may say so, with respect, nomisconception on his part of the judgment of the Privy Council.
Dealing with this aspect of the matter Wille—The Principlesof South African Law (5th Ed.) 302, states “Legislation byimposing a duty, positive or negative on one person, may
impliedly confer a right on another person or persons
If the person subject to the duty commits a breach of the dutyhis$ act or omission is equivalent to culpa and is an infringementof the right; and the owner of the right is entitled to legalredress by way of an interdict without having to prove anyactual damage for in such circumstances damages are presumedto have been sustained”. Where, however, he claims damageshe has to prove the damages sustained by him.
Mr. Jayewardene submits that in this context one has toconsider whether the duty is imposed in the interests of aperson or class of persons or the public generally. But this isa matter of construction of the provisions of the Statute and isrelevant only for the consideration of the question as to whe-ther a particular person has a right to redress or not. Wherethe duty is imposed in the interests of the public generally anindividual has no right of redress unless he can prove that hehas sustained actual pecuniary loss by reason of the contraven-tion of the statute—Ellis v. Vickerman (8). In the instant casethe statute imposes the duty not in the interests of the publicgenerally but in the interests of a class of persons namely thoseowners or occupiers of premises who are qualified to receive thesupplj' of energy.
Lord Kinnears pointed out in Black v. Fife Coal Co. Ltd. (9)“But when a duty of this kind is imposed for the benefit ofparticular persons there arises at common law a correlativeright in those persons who may be injured by its contraven-tion ”. In this context it is relevant to note that in the case ofCape Central Railways v- Nothling (10) De Villiers, C.J. laiddown four propositions the first of which is as follows :—
“ where a statute or statutory by-law enacts that a certain thingshall be done for the benefit of a person he has in the absenceof any indication in the statute or by-law of an intention tothe contrary, a civil remedy for any special damages sustainedby him by reason of non-compliance with the terms of thestatute or by-law”.
Sri Lanka Law Reports (1978 – 79) 2 S. L. R.
It would be different if the duty which was imposed by theAct was merely one of care. In such a case it is immaterialif what was imposed was a power or duty; the duty of caremay exist in either case. In such cases it must be establishedthat either the act was outside the ambit of the power or theduty of care had not been exercised—see Anns v- LondonBorough of Merton (11). I am therefore of the view that theplaintiff is entitled to claim damages from the defendant forthe breach of a duty imposed on it by the Act and whichinfringed a correlative right vested in him, on the mere proofof the breach of the duty, without more.
The trial judge has assessed the damages sustained by theplaintiff at Rs. 10 per day on the basis that “either by usinghis huller and the premises himself or by handing over thebuilding to others the plaintiff could have hoped for a prospec-tive profit of at least Rs. 10 per day given the electricity supplyapplied for. From the plaintiff’s evidence it was not clear asto what use he was going to put the premises and the supplyof energy. He said that if he was not allowed to carry on thetrade of milling paddy he would buy paddy from villagers, hullit and sell the paddy. This is on the basis that hulling paddyhimself for the purpose of selling the rice was not carrying onthe trade of milling paddy. See Don Albert v. MunicipalRevenue Inspector (12). But it is doubtful whether that casewould apply to the facts of the instant case. Alternately hesaid he could have carried on welding work and that severalpeople offered to pay rent for this purpose. But none of thesepeople were called as witnesses except Appuhamy who saidthat he was prepared to pay Rs. 15 per day if electricity wasavailable. On this basis he said that he could have got a profitof about Rs. 700 per month.
The plaintiff himself is an aratchchi attached to the Courtand had no experience of business of this kind. All that hecould say was what he learnt from the inquiries he had made.Besides, the damages that he can claim is the damagesoccasioned to him as a result of the failure to give him thesupply of energy and not what he could have obtained byrenting out the premises and the machinery. The plaintiff saidthat at first what was offered was Rs. 150 per mensem. I thinkthat this would include the rent for the premises which I wouldestimate at Rs. 50 per mensem. So that the reasonable estimateof the damages sustained by the plaintiff as a result of thebreach of the statutory duty by the defendant to supply the
Morawaka v. Dhammaratna Thero
energy would be Rs. 100 per mensem. On this basis he willbe entitled to Rs. 2,000 for 20 months from the date of the plainttill July 1970 and at Rs. 100 per mensem thereafter.
It was also submitted that the notice required under section307 of the Municipal Councils Ordinance had not been given.This notice is necessary only if the Council is sued in respectof anything done or intended to be done under the provisionsof that Ordinance or of any by-law, regulation or rule madethereunder. In the instant case the defendant Council is suednot in respect of anything done under the Ordinance or by-lawetc. made under it but in respect of a breach of duty imposedby the Electricity Act. It was so held in the case of Weera-sooriya Arachchi v. The Special Commissioner, Galle Munici-pality (13).
Subject to the variation in regard to the damages the appealis dismissed with costs.
RANASINGHE, J.—I agree.
Municipal Council of Badulla v. Ratnayake