047-NLR-NLR-V-63-R.-ARNOLIS-SILVA-Petitioner-and-D.-TAMBIAH-Syperintendent-of-Police-Respond.pdf
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H. N. G. FERNANDO, J.—Amolia Silva v. Tamblah
Present : H. N. G. Fernando, J., and L. B. de Silva, J.R.ARNO LIS SILVA, Petitioner, and X). TAMBLAH (Superintendent of
Police), Respondent
S.C. 348—Application for a Mandate in the nature of an Injunction under
Section 20 of the Courts Ordinance
Injunction—Ex part© application—Power of Supreme Court to grant it without noticeto opposite parly—Interference by Police with private rights of properly—Town and Country Planning Ordinance, No. 13 of 1946, as. 6 (2) (6), 46—Housing and Town Improvement Ordinance {Cap. 199), s. 12—Courts Ordinance,a. 20—Civil Procedure Code, a. 664.
Under section 20 of the Courts Ordinance the Supreme Court has power ina fit case to grant an injunction after only ex parte hearing and without priornotice to the opposite party.
The Superintendent of Police, Matara, and other police officers acting underhis ordors were preventing the petitioner from erecting on his own landtemporary stalls and structures for the conduct of the fair known as the “ DondraFair The petitioner applied for an injunction under section 20 of the CourtsOrdinance. He alleged that the interference by the Police purported to be inreliance upon Orders made under the Town and Country Planning Ordinance,No. 13 of 1946. Prima facie the interference complained of appeared to be ofan extraordinary nature and likely to cause “irremediable mischief” if notrestrained by immediate injunction.
Held, that the circumstances did not render it essential that the respondentbe given an opportunity of being heard prior to the issue of an injunction.
Neither the Town and Country Planning Ordinance nor the Housing andTown Improvement Ordinance empowers a police officer to enter upon privateproperty, or to use force, in order to prevent the erection of structures incontravention of the statutory provisions.
Semble : There is no provision of law which justifies the use of Police powerto obstruct the exercise of private rights of property which do not involvethe commission of crime or a likely breach of the peace.
Application for an injunction under section 20 of the CourtsOrdinance.
H. TV. Jayewardene, Q.C., with G. T. Samarawickreme and S. S.Basnayake, for petitioner.
Cur. adv. vult.
July 21, 1961. H. N. G. Fernando, J.—
The petitioner claims to be a co-owner of the land called Palliyawattasituated at Devi Nuwara in the District of Matara, exclusive of thepremises of the Sri Vishnu Devale, and further claims that the annual
H. N. O. FERNANDO, J.—Amolta Silva v. Tambiah
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fair known as the “ Dondra Fair ” has for centuries been held on thesaid land, and has for many years within living memory been conductedby himself and his predecessors in title. The Dondra Fair, it is alleged,has been ordinarily conducted during the period of the Esala Festival ofthe Devale, and for that purpose it has been customary for the petitionerto create temporary stalls and structures on the land which are let byhim for the purpose of the conduct of the fair.
The gravamen of the petition is that the respondent, who is theSuperintendent of Police, Matara, and other Police officers acting underhis orders, are preventing the petitioner fromi completing the erection ofstructures which the petitioner had commenced to construct for thepurposes of the conduct of the fair due to commence on 24th July, 1961.The petitioner alleges that this interference by the Police purports to bein reliance upon Orders which have been made under the Town andCountry Planning Ordinance, No. 13 of 1946.
By Order made by the Minister of Local Government and Housingunder section 6 (2) (b) of the Ordinance, and published in the GovernmentGazette No. 12,507 of July 6th, 1961, the area specified in the Scheduleto that Order has been declared to be an Urban Development Area forthe purposes of that Ordinance. According to the petitioner the landto which bis petition relates is situated within the Development Area.The Minister, by another Order published in the same Gazette, directedan Outline Planning Scheme to be prepared for the Development Area.The immediate effect of these Orders is to bring into operation section 46of the Ordinance, the relevant provision of which is that :—
“no person shall …. erect or re-erect any
structure in that area …. unless authorised so to do by anyprovision contained in the general interim development order … ”
The Petitioner avers that the respondent is acting on the basis that thisprovision of the Ordinance prohibits the erection of the temporarystructures which the petitioner had commenced to erect, and that therespondent (so the petitioner avers) is preventing the completion of thestructures for that reason. The petitioner contended that such actionon the part of the respondent and his subordinates is wrongful andunlawful, and he prayed for an injunction “ restraining the Respondent,his agents and subordinates from-—
in any way preventing or interfering with the construction and
completion by the Petitioner of the temporary structures on theland called Palliyawatta described in paragraph 1 above inconnection with and for the celebration of the Devi NuwaraMAHA VISHNU DEVALE Esala Festival, 1961, and
interfering with the holding and carrying on the Dondra Fair inthe said premises in connection with the said Devi Nuwara EsalaFestival.”
230H. N. G. FERNAJNDO, J*—Amalia Silva v. Tambiah
The petition was mentioned in Court on 21st July, and we agreed toconsider it as a matter of great urgency, for the reason that the EsalaFestival and the Dondra Fair were due to .commence on 24th July.After hearing learned counsel for the petitioner, we made Order grantingthe injunction, and now state our reasons.
Examination of the General Interim Declaration Order (referred to insection 46 of the Ordinance) which was published in Government GazetteNo. 9,816 of January 16th, 1948, makes it very nearly manifest that theerections commenced by the petitioner did not contravene section 46,but on the contrary, were expressly permitted by paragraph 5 (d) of theSchedule to the Order. But even assuming that section 46 prohibitssuch erections, there is nothing in the Ordinance, nor in any other lawof which we are at present aware, which authorises the utilization ofPolice power to prevent such erections. While the purpose of section 46is to control generally building development in a declared area, pendingthe preparation of a plan for its development, and not merely to requireprecedent approval by a local authority of proposals to erect particularbuildings, the means by which the purpose is intended to be achieveddoes not appear to be substantially different from those envisaged instatutes like the Housing and Town Improvement Ordinance (Cap. 199).If a building is erected in contravention of that Ordinance withoutprior approval from the local authority, the person erecting it is liableto be convicted by a court of law ; but even so, the building cannot bedemolished unless the court in its discretion orders demolition. I neednot refer to the decisions of this court which hold that an order fordemolition will not as a matter of course follow upon a conviction forerection in breach of the Ordinance. Section 12 of Cap. 199 also empowersthe Chairman of a local authority to effect demolition after following theprocedure there laid down. But neither Ordinance empowers a Policeofficer to enter upon private property, or to use force, in order to preventthe erection of structures in contravention of the statutory provisions.The “ proper authority ’* for the enforcement of such provisions is notthe Police Department ; and in this case the proper authority is thePlanning Authority for the Area, namely the Town Council and theGovernment Planner. If therefore, the interference by the respondenthas been (as alleged by the petitioner) in reliance upon the Town andCountry Planning Ordinance, it was unlawful.
We appreciate that the petitioner may incorrectly have averred thatthe interference has been upon the ground just stated. The respondentmay have relied on some other ground ; but we are unaware of anyprovision of law wThich justifies the use of Police power to obstruct theexercise of private rights of property which do not involve the commissionof crime or a likely breach of the peace. If in fact the respondent doesrely on some such other ground, it will of course be open to him to movethis court to vacate its Order of July 21st. But having regard to thefact that the fair was due to commence on July 24th, and to the factthat prima facie the interference complained of appears to be of an
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extraordinary nature and likely to cause “ irremediable mischief ” ifnot restrained by immediate injunction, the circumstances did not inour view render it essential that the respondent be given an opportunityof being heard. That opportunity he will have if and when he seeks toshow cause why the injunction should be discharged.
The power to issue injunction is conferred by section 20 of the CourtsOrdinance in the following terms :—
“ The Supreme Court, or any Judge thereof, shall be, and is herebyauthorised, to grant and issue injunctions to prevent any irremediablemischief which might ensue before the party making application forsuch injunction could prevent the same by bringing an action in anyoriginal court ”.
Section 664 of the Civil Procedure Code prevents a District Court fromissuing an injunction without prior notice to the opposite party, exceptin a case where the object of granting the injunction would be defeated bydelay. There being no similar requirement for prior notice in section 20of the Courts Ordinance, the Supreme Court has undoubtedly the powerin a fit case to grant an injunction after only ex parte hearing. Theexceptional circumstances referred to in section 664 of the Code clearlyexist in the present case.
L. B. de Silva, J.—I agree.
Application allowed.