RAMEN CHETTY v. THE MUNICIPAL COUNCIL, KANDY

063-NLR-NLR-V-12-RAMEN-CHETTY-v.-THE-MUNICIPAL-COUNCIL,-KANDY.pdf

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Present: Mr. Justice Wood Renton.1909.
July 19,
RAMEN CHETTY v. THE MUNICIPAL COUNCIL, KANDY.
C. B., Kandy, 17,260.Water service, cutting off—By-laws—Validity—Excessive consumption of■water—By-laws 157 and 173—Ordinances Nos. 7 of 1887 and 8 of1901, s. 8.
Section 173 of the by-laws of the Kandy Municipality, madeunder the provisions of section 6 of Ordinance No. 8 of 1901, doesnot empower the Municipal Council to cut off the water supply ofa ratepayer who is not in default as regards payment of liis ordinarywater-rate, but has merely used a private supply of water for otherthan domestic purposes.
r’IAHE plaintiff, who was the owner of house No. 25, Trincomalee_L street, Kandy, to which a water service had been allowed by theCouncil some years ago, alleged that the defendant Council on orabout May 10, 1908, wrongfully cut off the supply of water to thesaid house, and prayed for a” decree restoring the water service tothe said house, and also for an injunction restraining the Councilfrom continuing to cut off the water supply and compelling itsrestoration. The defendant Council answered that the plaintiffhad failed to comply with section 157 of the by-laws relating towater supply, in that he did not pay dues for water used in excessof liis allowance during the first and second quarters of the year 1907,and that the Council was therefore justified under by-law 173 instopping liis supply of water.
The following issues were framed at the hearing :—
Are the by-laws under which the defendant Council is
alleged to have acted ultra vires ?
If so, is the plaintiff barred from taking such a plea by
sub-section (2) of section 6 of Ordinance No. 8 of 1901 ?
If they are valid, was the Council justified under section
157 in fixing a meter on the pipe in plaintiff’s premises ?
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If they were, has plaintiff consumed water in excess of the
amount allowed under that section for the first andsecond quarters of 1907 ?
If so, was the defendant Council justified in cutting off the
supply under section 173.
What damages, if any, is plaintiff entitled to recover ?
The Commissioner of Requests (T. B. Russell, Esq.) held as follows(November 6, 1908):—
“ To take the issues one by one. On the 1st and 2nd issuesMr. Beven, for plaintiff, argued that as the Municipal Council’sOrdinance, No. 7 of 1887, nowhere authorizes the framing of rulesregarding water supply, the niles framed for this purpose are ultravires. Against this Mr. Vanderwall for defendant Council referred meto amending Ordinance No. 8 of 1901. Section 5, sub-section (28),enables by-laws to be framed for every other purpose which the’Council may deem necessary for the carrying out of the severalprovisions of the Ordinance. Section (b) enlarging the Council’spowers, which shall extend to all matters about which it is expedientto make by-laws for the better carrying into effect of the objects ofthe Ordinance. As if this were not enough, the next Bection, section6, makes all by-laws regularly proclaimed as legal, valid, effectual,and binding as if the same had been enacted in the Ordinanceitself. It seems to me quite clear that these issues must bedecided in defendant’s favour. There is good reason to hold thatthe by-laws are in themselves ultra vires. But whether this is so ornot, the plaintiff is by section 6 effectually barred from questioningtheir validity.
“ The 3rd issue suggested by Mr. Beven M as rejected by me. Hewished to be allowed to prove that the Council was not justified, inthe first instance, in fixing a meter in plaintiff’s premises. Thisseemed to me not only an unnecessary issue in itself for deciding thereal cause of dispute between the parties, but no mention of theintention to raise it was made in the notice of action which wasserved on the defendant Council.
“The 4th issue is one of fact. The defendant seems to me tohave clearly proved that for the second quarter of 1907 that theplaintiff used water much in excess of the amount allowed byby-lau’ 157. They have proved that demand was made for the valueof the excess from plaintiff, and that he failed to pay it.
“ Mr. Beven in his cross-examination of the witnesses suggestedthat there must have been something wrong with the meter owingto the great difference between the amount used by plaintiff in thefirst quarter and that used in the second. It is sufficient to saythat no reason whatever is shown why I should accept this suggestion.It is to be presumed, in the absence of any evidence to the con-trary, that the meter was in working order, and it would have been
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easy, if the plaintiff seriously disputed this, for him to have got itexamined by a competent engineer. It is, moreover, to be notedthat, according to Mr. Chapman, any damage to the mechanismwould result in the meter registering less and not more water. Mr.Chapman has produced his meter reading books and a statementfrom them showing the excess used by the plaintiff, and he appearsto have done everything in order. The 4th issue must be decidedin favour of the defendant.
“ Mr. Beven laid stress on the 5th issue as the most important ofthem all. Even if I held against him on all the other issues, heargued that I must decide this in his favour. He contended thatby-law section 173 does not authorize the cutting off of water forfailure to pay for excess water consumed, but only for failure topay water-rate. The failure to pay for excess water, he urged, Wasprovided by the infliction of a penalty (vide sections 157 and 159of the by-laws). He further urged that the action of the defendantwas not justified by the concluding portion of section 173 either, asit contemplates some wrongful act, not a failure to do something.
“ In answer to this Mr. Vanderwall argued, and it seems to merightly, that section 173 is meant to deal with all acts or omissionswhatever by which a person has contravened any section of theby-laws, and that in any case the plaintiff has been shown to havebeen guilty of ‘ undue consumption,’ for which, if for nothingelse, he is liable under the section. He further pointed out thatthe by-laws provide two courses of action for the Council in thematter of water consumption, either or both of whicli it is open forthe Council to take: (1) A means of recovering the value of thewater used (section 159); (2) means of punishing offenders andpreventing future abuse (section 173). For these reasons I decidethe 5th issue also in favour of defendant.
“ It is not necessary now to decide the 6th issue regardingdamages. There is a public standpipe just outside the plaintiff’sdoor in the street, and an allowance of 50 cents a day for a cooly tobring water into the house would be not only ample, but generous.I do not believe for a moment that it cost the plaintiff so much.
“ Plaintiff’s action is dismissed with costs.”
The plaintiff appealed.
A. Drieberg for the plaintiff, appellant.
Bawa for the defendant, respondent.
Cur. adv. vult.
July 19,1909. Wood Renton J.—
I agree with the learned Commissioner of Requests that in view ofsection 124 (2) of the Municipal Councils Ordinance, No. 7 of 1887,as re-enacted by section 6 of Ordinance No. 8 of 1901, and of the
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1909. decisions of tlie Supreme Court in La Brooy v. Ismail1 and ColomboJuly 19. Municipal Council v. Uduma Lebbe Marikar? and cf. Institute ofWoODPatent Agents v. Lockwood? the validity of the by-laws of the Municipal
Renton J. Council of Kandy, on which the decision of che present case depends,cannot be questioned here. But I do not think that rule 173 of thoseby-laws empowers the Municipal Council to cut off the water supply.of a ratepayer who is not in default as regards payment of his ordi-nary water-rate, but has merely used a private supply of water forother than domestio purposes. Buie 173 authorizes the applicationof that drastic remedy in three cases: (i.) Default of payment of “thewater-rate ” fifteen days after it has become due; (ii.) the doing, orcausing or permitting to be done, of anything in contravention of theby-laws in the chapter (Chapter XII.) of which rule 173 formsa part; (iii.) the wrongful failure—I am citing only the material words
—“ to do anything which ought to be done for the prevention
of undue consumption.” Can the failure of a ratepayer to pay theexcess which rule 157 of the by-laws enables the Council to chargefor undue consumption be brought under any one of these threeclasses ? In my opinion it cannot, (i.) It is not a “ water-rate.”It possesses none of the periodicity or recurrence, which, in theordinary sense of the term, is an inherent characteristic of a “ rate.”Moreover, rule 132 draws a distinction between the “ water-rate ”which the Municipality of Kandy is authorized to impose and“ other sums ” leviable under the group of rules, which includes rule157. (ii.) The appellant’s failure to pay the excess here in disputeis not “ the doing, or causing, or permitting to be done,” of anythingin contravention of the by-laws. It is an omission, and not anact. (iii.) The words “ wrongful failure to do anything which ought
to be done for the preventionof undue consumption ” refer,
and must be limited, to omissions to comply with rules framed forthe direct purpose of preventing undue consumption. Tne chapterof the by-laws which includes rule 173 contains a variety ofprovisions in which the words 1 am considering find a clear field ofapplication. Moreover, the by-laws themselves provide the modein which these excess charges are to be recovered. Rule 159 enactsthat the sums recoverable under either of the two next precedingby-laws (including, of course, rule 157) “ shall be recovered in themanner provided by sections 281 and 282 of ‘ The MunicipalCouncils’ Ordinance, 1887,’ as if the same were expenses directedto be paid by the said Ordinance.” Sections 281 and 282 ofOrdinance No. 7 of 1887 provide for the ascertainment of theamount of such “ expenses ” by the Municipal Magistrate, andtheir recovery, in case of default, as “ fines.” In effect, theMunicipal Council is now seeking to utilize rule 173 as sanctioningan additional—and no doubt more effective—mode of securing the
‘ (1906) 1 A. a. R. 38.3 (1907) 1 Leader L. R. 9.
3 (1894) A. C. 347.
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payment of the charges in question. I do not think that rule 173will bear the construction that the Commissioner of Requests has putupon it. In the present case the excess claimed is only Rs. 19-89.The excess charge provided for by rule 157 is Re. 1 per 1,000 gallonsexcess. If the respondent’s contention is right, a householder whoowed, or was alleged to owe, a rupee in respect of an excess chargeof this description, and who made default in paying it, would beliable, at the discretion of the Municipal Council, to have his entirewater supply cut off on six hours’ notice (rule 174). Much strongerlanguage than is to be found in rule 173 would be necessary for thecreation of a penalty so wholly out of proportion to the offence.
The proceedings of the Council in the present case have been suffi-ciently startling. No attempt was made to enforce payment in theway that the by-laws prescribe. The evidence of Mr. Jayetilleke,the Secretary of the Municipal Council, in cross-examination on thispoint, is worth quoting. “ I demanded from the plaintiff aboutMarch, 1908, the amount due on Rs. 21-87, i.e., Rs. 19-89, plus 10per cent, costs for excess water used. Rs. 19-89 was first demanded,and when not paid, a warrant was issued, and the 10 per cent.
charge was entered in the warrant The amount was not
paid. On May 6, 1908, I issued a notice on the plaintiff warninghim that the water would be stopped if he did not pay his excess.The request was not complied with, and I therefore stopped the
supply In everything I did I acted under the orders of the
Council, and not on my own initiative. These amounts have to berecovered as fines, not by distress. The warrant, as a matter of fact,is irregular. The plaintiff should have been summoned to Court.”In re-examination, Mr. Jayatilleke naively adds : “ Becausethe warrant was not regular, no effort was made to enforce it.”By the admission of its Secretary , the Municipal Council of Kandyhas acted es illegally in the earlier, as I hold it to have acted inlater, stages of this case.
I set aside the decree appealed against, and direct that judgment,be entered for the appellant in terms of paragraphs (3) and (4) of theprayer in his plaint. The appellant must have all costs of theseproceedings here and in the Court of Requests.
Appeal allowed.
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1909.
■July 19.’
IVoouKenton J.