017-NLR-NLR-V-35-NEWNHAM-v.-LUCAS-FERNANDO.pdf
Newnham v. Lucas Fernando.
113
1933Present: Dalton iLCJ. and de Silva A.J.NEWNHAM v. LUCAS FERNANDO.
I75-^D. C. Colombo, 2,861.
Housing and Town Improvement—Laying of street lines—-Existing street andcontinuation thereof—Meaning of continuation—Ordinance No. 19 of1915, s. 18 (4).
Where power is given to a local authority by section 18 (4) of theHousing and Town Improvement Ordinance to define by resolution “ thelines by which an existing street or any part or continuation thereofis bounded ”,—
Held, that the section applied to streets existing at the time of theresolution or to any proposed continuation thereof.
^ PPEAL from an order of the District Judge of Colombo..
In 1926 the Municipal Council of Colombo purported to define thelines of a street, according to a plan attached to the resolution, connectingBuller’s road with the Galle road. The present claim arose out of theacquisition of the land by the Municipality for public purposes and theamount of compensation payable for the same. It was contended for theclaimant that the street lines had not been validly laid down in termsof section 18 (4) of the Housing and Town Improvement Ordinance,No. 19 of 1915.
V. Perera (with him J. R. V. Ferdinands), for claimant, appellant.—The Chairman of the Municipal Council acquired 2 roods 7.84 perchesunder the Land Acquisition Ordinance, offering Rs. 26,777.25 as com-pensation to the appellant. The block of land is situated at Reidavenue. The plaintiff has discriminated between two portions of thisland because one cannot build between street lines. The land wasacquired on February 10, 1931. This street is a new street because nostreet lines were laid down in accordance with the Ordinance. The streetlines were laid down across private property, where there was no streetat all on May 14, 1926. The street lines laid down were not in accord-ance with law inasmuch as there was no existing street, public or private.Section 18 of Ordinance No. 19 or 1915 does not authorize the laying ofstreet lines under these circumstances, although the Council claims tohave acted under section 18 (4). If the land is acquired for the purposeof a road then the Council can lay down street lines under section 18.There was no intention of extending Buller’s road at the time of itsconstruction. At the time of making Buller’s road it was complete asit ran into Reid avenue. The Chairman of the Council contends thatthe Council has power under section 18 (4) to define lines for the con-tinuation of any existing street. When the street lines were laid downthe land was private property. The section refers to continuationof a street. The Council cannot lay street lines where there is no road.The road and its continuation must be conceived at the same time*
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DALTON A.C.J.—Newnham v. Lucas Fernando.
The mere possibility of continuation is not the test to be applied.Section 18 (1) (a) draws a distinction between an existing street and anew street. The road must have existed in 1915, then street lines canbe laid at any time. Before the Council can lay down street lines thecontinuation must be in existence. A word or expression in ordinaryuse need not have the same meaning in a different context. In thiscontext “ existing street ” is used to distinguish it from a “ new street ”.Until acquisition the private owner can do what he likes with it; Streetlines are laid down only in respect of an existing street, or a part of itor a continuation of it. In order to stop building, street lines should belaid under the 1915 Ordinance.
Section 46 enables the Council to acquire land for the purpose of layingdown a new street. Continuation may refer to the full execution of anidea present at the time when the original road was laid down. Theintention was to connect Borella and Reid avenue. These views aresupported by the resolution of the Council.
A. Hayley, K.C. (with him J. L. M. Fernando), for plaintiff, respond-ent.—The scheme of the Ordinance must be interpreted. Sections35-60 of Ordinance No. 19 of 1915 have nothing to do with the matterin question. These sections contemplate schemes of improvement bycommissioners or bodies of persons willing to pay for improvements.You can build only by an existing street or a hypothetical street. TheCouncil can make no new street: it is always a continuation of the publicroads of a town. A “ new street ” is not defined in the Ordinance, otherthan the use of section 18 (4). “ Continuation ” is used in the broadestpossible sense in the Ordinance. Only private persons can open up newstreets. The present new road is only an extension of the former Mosquelane. “Street” has been very widely defined in the Ordinance. Onthe facts the new road is a continuation of Buller’s road. Section 18is all one section and the various provisions are all inter-connected.An Ordinance has to be read as a whole. “ Continue ” means also “ toextend ”. “ Extension ” is defined according to this meaning—ShanghaiCorporation v. McMurray Section 172 of Ordinance No. 6 of 1910empowered the laying down of lines of the original Buller’s road.
H. V. Perera, in reply.—The main distinction in the Ordinance is thatbetween existing streets and new streets. The fixing of street lines isthe initial step in the making of a new road.
May 31, 1933. Dalton A.C.J.—
This appeal raises questions as to the construction of section 18 (4)of the Housing and Town Improvement Ordinance, 1915, and as to thepowers of the Town Council of Colombo thereunder.
In 1926 the Council had purported to define the lines of a street asshown on a plan attached to the resolution, connecting Buller’s roadwith the Galle road. The present case concerns the acquisition of landfor that street, and the amount to be paid therefor. At the hearing itwas agreed, firstly that if the learned trial Judge held that the streetlines had been validly defined, and secondly, if any depreciation in
» 09 L. J. P. C. 19.
DALTON A.CJ.—Newnham v. Lucas Fernando.
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consequence of street lines having been laid down can be taken intoaccount, all portions within the street lines should be valued atRs. 30,000 per acre, otherwise at Rs. 60,000 per acre.
The second point referred to in this agreement has, I am told, beenalready settled in favour of the Council in case No. S. C. 174. The firstpoint now arises in this appeal. The trial Judge decided the question infavour of the Council and the claimant now appeals.
At the conclusion of the argument I felt quite unable to agree withMr. Perera’s contentions as to the meaning of the words “ existingstreet ” and “ continuation thereof” as used in section 18 (4). I haveno doubt “ existing street” means a street existing at the time theresolution is passed. It seems to me to be the natural construction ofthe sub-section. It is urged by him that it must mean a street existingat the time the Ordinance was passed, and that the same meaning mustbe given to the word as also used in section 18 (1) (a). He argued thatone could not give two different meanings to one word as used in the samesection. It is not in my opinion necessary to do so, for I am equallyunable to agree with him that “existing” as used in section 18 (1) (a)means existing at the time the Ordinance was passed. In my opinionit means existing at the time the erection referred to is being made.To give the word the construction for which he contends would in myopinion be an unnatural straining of the words used, which seem to meto be fairly plain. I find the word “existing” used in other parts ofthe Ordinance in the same sense as I find it is used in section 18.
In the same way it seems to me that the word “ continuation ” means,as Mr. Hayley contends, proposed continuation. If it meant an existingcontinuation, that it seems to me would be included in the term “ existingstreet ”, and would be repeating over again the same thing.
At the conclusion of the arguments before us the only matter of diffi-culty that presented itself to me was whether the street in questionthat has been made was in fact a “ continuation ” of Buller’s road,within the meaning of that term as used in section 18 (4), or a new streetaltogether, since I could find no definite finding of the trial Judge onthat point.
It is conceded that under this Ordinance the local authority has nopower to define the lines of a new street, apart from certain improvementschemes provided for in Part III., Chapter II. of the Ordinance. It isnecessary therefore to see that the powers given in section 18 (4) to definethe lines by which any continuation of an existing street is bound shallnot be made use of to do something the authority has no power to do,since the laying down of street lines necessarily results in a depreciationof the value of the property coming within those lines.
The learned trial Judge appreciated that it was necessary to decidewhether the street lines laid down in 1926 were in fact laid down as acontinuation of an existing street but I have-some difficulty in under-standing how he answers this question. He seems, I think, to havemisunderstood the argument of counsel for the claimant who urged thatthe continuation must be an “existing” continuation. At any rate,
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DE SILVA A.J.—Newnham v. Lucas Fernando.
however, the learned Judge states he was unable to accept the contentionthat Buller’s road as it existed in 1926 must necessarily end at Reidavenue and could not be extended or continued across the junction.
The terms of the resolution as passed in 1926 refer to “ a street con-necting Buller’s road with the Galle road”. The plan attached to theresolution is called “ plan of Buller’s road extension to Colombo-Galleroad”. At that date Mr. Perera urged that Buller’s road came to anend where it joined Reid avenue, the avenue running across the end ofBuller’s road. He suggested that the proposed road on the other sideof Reid avenue was not a continuation of Buller’s road, but in fact a newroad altogether, the word “ continuation ” suggesting a union without a „break. It is true that the Council’s assessor in giving evidence speaks ofthe road as a new road; at one point he calls it an “ entirely new road ”,but I think, having regard to the context, he uses those words as onemight sometimes use them of an admitted continuation recently built ofan existing road.
A question as to the meaning of the words “ extensions of the lines ofroads at present laid down ” came up for decision in Shanghai Corporationv. McMurray I agree with Mr. Perera that the word “ extension ”as used in the regulations in question in that case certainly had a muchwider meaning than the word “ continuation ” as used in section 18 (4),but the case is cited as having some bearing on the matter we have todecide, since the Privy Council seem to have given the term a very widemeaning, applying not only to extension of the original road, but alsoto branches going off in different directions. As there the Court fromwhich the appeal came was held to have taken too narrow a "view of theword “ extension ”, so here, on consideration of the terms of the sectionand of the evidence in the case I have come to the conclusion that themeaning of “ continuation ” for which Mr. Perera contends would betoo narrow a meaning. In the circumstances here upon the evidencein the case I would hold that the road in question is a continuation of anexisting road, i.e., Buller’s road, and therefore on this point also the appealmust fail.
The appeal will therefore be dismissed with costs.de Silva A.J.—
In view of the decision of this Court in case S. C. No. 174/D. C., Colombo,2,839, the only point raised by Mr. Perera for the defendant-appellantin this case is whether street lines have been validly defined across thedefendant’s land by a resolution of the Municipal Council of April 14,1926.
Admittedly, at the time of the passing of the resolution there was nostreet on the defendant’s land. The Council in passing the resolutionacted under section 18 (4) of the Housing and Town ImprovementOrdinance of 1915, which reads:—“The local authority may by resolu-tion from time to time, subject to the standards prescribed by rule 8 ofthe schedule to this Ordinance, define the lines by which any existingstreet or any part or continuation thereof shall be bounded, and the lines■so defined shall be deemed to be the lines of the street. ” It is argued by
* 69 L. J. P. C. 19.
DE SILVA AJ.—Newnham v. Lucas Fernando.
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Mr. Perera that the section gave the Council power to define lines onlyin respect o£ an existing street or an actual continuation thereof. Heargued that the word “continuation” did not include a proposedcontinuation. An actual continuation would be a street withinthe definition of the word in section 2 of the Ordinance and it wouldbe a street in existence. Mr. Perera had therefore to find a meaningfor the word “continuation” different from the words “existingstreet”, and he argued that the latter words in the section appliedonly to streets existing at the time of the passing of the Ordinance, andthat the word “ continuation ” meant a street which had come intoexistence since the passing of the Ordinance as a continuation of a streetwhich had existed before. It is necessary to adopt these argumentsbefore it can be held that the word “ continuation ” is limited to a con-tinuation which has actually been made. Mr. Perera argued that thewords “ existing street ” under section 18 (1) (a) bore the meaning whichhe suggested, and that section 18 referred to two classes of streets “ existingstreets”, i.e., streets which existed at the time of the passing of theOrdinance and “new streets”, i.e., streets which came into existenceafter the passing of the Ordinance.
Section 18 (1) (a) reads:—“Every building erected or re-erected afterthe commencement of this Ordinance within the administrative limitsof any local authority—shall be erected either upon the line of anexisting street not less than twenty feet in width, or upon the line of anew street defined or approved by the Chairman or otherwise authorizedunder this or any other Ordinance I was impressed by the view thatthe words “existing street" in this sub-section could not mean merelya streeet in existence, because authority is given by the sub-section tobuild on the line of such a street so long as it is not less than twentyfeet in width.
A closer examination has revealed to me that there is not much forcein this vie,w. Streets are constructed by a public authority or by privatepersons, and an examination of sections 19, 20, and 23 disclose the factthat in respect of private streets a large measure of control is exercisedby the public authority. It is not necessary for the purpose of this caseto find out exactly what the measure of control is, but it is sufficient torealize that the measure is large. The word “street” is defined verywidely and under section 19 “every person who intends to lay out orconstruct a new street ” has to give written notice of his intention to theChairman and to submit plans showing details of the proposed “newstreet”. The word “construct” is also given a very wide meaning insection 2 and includes not only “sewering, draining, levelling, paving,kerbing, metalling, channelling ”, but also “ every method of makinga carriageway or footway, and the provision of access to the street orthoroughfare”. The Chairman under section 20 has the power to givewritten directions (which have to be complied with) with regard to widthand several other details. So that it becomes quite clear that a verylarge measure of control is exercised by the public authority in respect ofstreets coming into existence after the passing of the Ordinance. Thereis therefore nothing strange in granting authority to build upon such astreet so long as it is not less than twenty feet in width.
118DE SILVA A.J.—Newnham v. Lucas Fernando.
The meaning sought by Mr. Perera to be given to the word “ existingstreet”, viz., streets existing at the time of the passing of the Ordinanceis an extraordinary meaning which would not be given to it unless onewas compelled to do so. 1 can find no sufficient reason for adopting itbecause section 18 (1) (a) can be interpreted quite simply by giving to thewords “ existing street ” the meaning of streets in existence at the timeof a proposed building, and by giving to the words “ new street ’ themeaning streets which are not in existence but which are defined orapproved at the time of the proposal to build. The words “existingstreet” in section 18 (4) would have a similar meaning. I am ofopinion that this is a correct interpretation of the words in the twosub-sections. The word “ existing ” undoubtedly bears such a meaningin section 46 (1) and 48 (1) of the Ordinance and perhaps in other sections.Consequently the word “ continuation ” does not mean an actual con-tinuation which has taken place but means a proposed continuation.
It has been argued that the trace of the lines which have been definedover the defendant’s land is not in fact a “ continuation ” of Bull'er’sroad. It appears from the plans D 1 and P 3 that Buller’s road, Have-lock road (also called Bambalapitiya road), and Reid avenue meet at ajunction, and that the proposed road in respect of which lines were de-fined connects the junction with Colpetty road. It was argued byMr. Perera that in order to be a “ continuation ” it is necessary that theproposed road and Buller’s road should have formed part of one schemeadopted at one and the same time, the execution of the part of it relatingto the proposed road not being carried out immediately after the restof it was completed. He argued that Buller’s road was complete whenit was constructed up to the junction I have referred to, and that theproposed road is a new road, and not a “ continuation ” of Buller’s road.I cannot accept this argument as I do not find anything in the word“ continuation ” which indicates that the continuation and the originalhad to be planned at the same time. I think it can refer quite clearlyto the continuation of a road which but for the continuation could beregarded as complete. I am of opinion that in order to be a “ continua-tion” what is necessary to be established is only physical continuity.But for the fact that other roads met at this junction, there could be nodoubt I think that the proposed road was a continuation of Buller’sroad. It is necessary to examine whether the junction and the otherroads make any difference.
Two points appear to arise, one is the presence of the junction. I donot think this makes any difference. Roads clearly continue acrossjunctions and I do not think the occurrence of a junction can be saidto prevent the continuity of the road. The next point is the effectof the presence of the other roads. I agree with counsel on both sidesthat the giving of a name can make no difference to the application ofthe section, and that the proposed road would or would not be a con-tinuation of Buller’s road quite independently of what it is called. Itmay be a question whether the proposed road is a continuation of Have-lock road, Buller’s road or perhaps (and this is less likely) of Reid avenue.It might be regarded even as the continuation of more than one roadbut so long as it can be regarded as the continuation of at least one it will
Newnham v. Gomis.
119
possess the character of the “continuation of ah existing street”. Tohold otherwise would defeat the principle of continuity underlying thesection. Adopting the test of physical continuity I have no doubtthat it is the “continuation of an existing street” and so long as thiscondition was satisfied the Council had power under section 18 (4) todefine lines.
I think therefore that the lines have been validly defined and that theappeal must be dismissed with costs.
Appeal dismissed.