018-NLR-NLR-V-79-1-S.-C.-G.-B.-JAYAWARDENA-Plaintiff-Appellant-and-THE-URBAN-COUNCIL-JA-ELA-De.pdf
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VYTHIALXNGAM, J.—Parandaman vs. Wijesinghe
Present: Sirimane, J., Vythialingam, J. and Wanasundera, J.
S. C. G. B. JAYAWARDENA, Plaintiff-Appellantand
THE URBAN COUNCIL, JA-ELA, Defendant-RespondentS. C. 59/72 (F)—D. C. Negombo 1006/spl.
Urban Councils Ordinance, section 220—Action to be filed within six:months of accrual of cause of action—Whether provisions of thissection applicable—Effect of non-compliance.
The plaintiff-appellant sued the Urban Council, Ja-Ela, for adeclaration that certain taxes and rates levied by the council werenull and void and any recovery of them by the seizure and sale ofthe plaintiff’s properties illegal. One of the objections raised on behalfof the defendant council was that the plaintiff had failed to complywith the provisions of section 220 of the Urban Councils Ordinance,sub-section 1 of which prohibited the institution of an action inrespect of anything done or intended to be done under the powersconferred on the council by the Ordinance, until after one month’snotice in writing had been given and sub-section 2 of which statesthat every action referred to in sub-section (1) had to be filedwithin six months of the accrual of the cause of action.
WANASUNDERA, J.—Jayavxxrdena vs. Urban Councit, Ja-Ela
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It was argued on behalf of the plaintiff-appellant that the learnedDistrict Judge had erred in holding with the defendant Council onthis question. It is submitted that the plaintiff’s action was in thenature of a qua timet action seeking immediate relief by way ofinjunction and the provisions of section 220 aforesaid could haveno application when a party comes into Court to prevent a threa-tened wrong.
Held : That the learned District Judge had rightly applied theprovisions of section 220 of the Urban Councils Ordinance to thepresent case. The plaintiff’s claim for a permanent injunction wasmerely a consequential relief and the action itself was one for adeclaration that the rates and taxes levied by the Council were nulland void.
Case referred to :
Jayasundera vs. Municipal Council, Galle, 5 S.C.C. 174.
^PPEAL from a judgment of the District Court of Negombo.
Nimal Senanayake, with Saliya Mathew and Eric Basnayake,for the plaintiff-appellant.
W. Jayawardene, Q.C., with Upul Jayasooriya and Miss P.Senaratne, for the defendant-respondent.
October 10, 1976. Wanasundeha, J.-—
The plaintiff-appellant sued the Urban Council of Ja-Ela, thedefendant, for a declaration that the assessment taxes and rateslevied by the council for the years 1964, 1965 and 1966 are nulland void, and any recovery of them by the seizure and sale of theproperties of the plaintiff be declared illegal.
At the trial, with the consent of the parties, three issues weretried as preliminary issues. The learned District Judge decidedthe issue in favour of the defendant, and the present appeal isfrom that order.
Issue No. 6, which is one of these issues, relates to the needto comply with the provisions of section 220 of the Urban CouncilsOrdinance (Cap. 255). Section 220(1) prohibits the institution ofan action in respect of an urban council for anything done orintended to be done under the powers conferred by the Ordinanceuntil the expiration of one month next after notice in writing tothe appropriate parties. Subsection (2) states that every actionreferred to under subsection (1) shall be commenced within sixmonths next after the accrual of the cause of action.
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WAN AS UNDER A, J.—Jayawardena vs. Urban Council, Ja-Ela
The rates sought to be declared void were those which theCouncil, purporting to follow in the normal procedures, hadpassed and had published in the Government Gazette. The 1964rates were published in Gazette D5 of 18th October, 1963, those of1965 in Gazette D6 of 2nd November, 1964, and the 1966 rates inGazette D7 of 26th February, 1966. Notices demanding paymentwere served on the plaintiff on the following dates : for 1964 bynotice D2 served on the 20th of April 1964, for 1965 by notice D3served on 20th January, 1965, and for 1966 by notice D4 served on3rd May, 1966. The plaint in this action was filed on 1st December.1966, more than six months after the last notice was served. Onthose facts the learned District Judge held that the plaintiff’saction was out of time.
Mr. Nimal Senanayake who appeared for the appellant arguedthat the learned District Judge erred in applying the provisions ofsection 220 to the present case. He submitted that the plaintiff’saction was in the nature of a quia timet action asking forimmediate relief by way of injunction, and that the provisions ofsection 220 could have no application when one comes into courtto prevent a threatened wrong. He relied on the judgment ofJayasandera vs. The Municipal Council, Galle—5 S.C.C. 174. Ifind it unnecessary to consider this legal question as the case canbe decided on the facts. It would appear from the plaint that theaction is one for a declaration that the assessment rates andtaxes are null and void. It is true that the plaintiff has also askedfor a permanent injunction, but that is consequential relief. Therecovery of the rates and taxes follows automatically from theprevious assessments in terms of the relevant statutoryprovisions. Counsel for the plaintiff had opened his case and raisedthe issues on the basis that this was an action for a declarationthat the assessments were void. Further, it is interesting toobserve that, after the trial had commenced and the issues framed,the plaintiff was compelled to file additional papers by way ofpetition, asking for an interim injunction. This event took placemore than 2£ years after the plaint was filed. As stated earlier, itwas more than six months after the last notice was served thatthe plaintiff stirred himself and came into court. In this context,
WANASUNDERA, J.—Jayawardena vs. Urban Council, Ja-Ela
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having regard to the pleadings and the manner' in which thecase was conducted, I find it difficult to hold that this was thetype of action referred to by counsel. I am therefore of the veiwthat the learned trial Judge was right in applying the provisionsof section 220 to this case.
The appeal is dismissed with costs.Sirimane, J.—I agree.Vythialingam, J—I agree.
Appeal dismissed.