064-NLR-NLR-V-17-SEYAPPA-CHETTY-v.-MUNICIPAL-COUNCIL-KANDY.pdf
Present: Pereira J. and Ennis J.
SEYAPPA CHETTY v. MUNICIPAL COUNCIL, KANDY367—D. C. Kandy, 22t310
Municipal Councils Ordinance—By-laws—Ultra viree^—Cutting off waterfor non-payment of amount due for water supplied—Prescription*
A by-law giving power ■ to the Chairman of the Municipal Councilof Kandy, when default is made by a householder in the paymentof any money duefor water supplied,toturn off the supply of
water is not ultravires. In any Case,theby-lawwould be valid
and effectual if, in teims of sub-section (4) of section 109 of theMunicipal Councils Ordinance, 1910, it is laid before the Legisla-tive Council and not annulled by it.
The right of theMunicipal Council torecover anamount "due for
water supplied to aprivate individual isnotbarredin three months
under section 236 of the Ordinance (section 283 of old Ordinance).
Bawa, K.G,, for the appellant.—The District Judge is wrong inholding that the by-law in question is ultra vires* The by-laws inquestion were placed before the Legislative Council as required bysection 109, sub-section (4). Their validity cannot be questionednow. Counsel cited La Brooy v. Ismail,l Raman Ghetty v. MunicipalCouncil, Kandy2, Colombo Municipal Council v. Uduma LebbeMarker 3. Under the new by-laws the amount due is recoverable asa jbax. The Chairman has therefore the power to distrain extra-judicially.
Jayewardene, for the plaintiff, respondent.—The plaintiff was notin default. He could not be said to have been in default when theamount was not ascertained. The sum due clan only be ascertainedby a judgment of the Magistrate. It is only when he is in defaultthe Council could cut off the water. ‘ No attempt has been made1 l Leader L. R*9* {1909) 12 N.L. R. 249; 2 Cur. L. R. 94.
( 196 )
1913.
Seyappa
Chmy
IV
Municipal.Council,Kandy
to recover the amount due in the manner set out in the Ordinance(sections 281 and 282 of Ordinance No. 7 of 1887). The Councilcould not therefore cut off the water.
. No steps were taken to recover the amount' due within threemonths after the money had become due. The right to recover theamount is therefore barred under section 288 (Ordinance No.. 7of 1887).
Bawa, K.C., in reply.
t '
Cur. adv. vult.
December 11, 1913. Pereira J.—
As explained by the District Judge, the question in this case is,as to the right of the Municipal Council of Kandy to fix meters onwater pipes for the purpose of regulating the supply of water toprivate houses, and to cut. off the water supply when the householderfails to pay. for water supplied in excess of a certain fixed quantity..The Council claimed the right under its by-iaw No. 173. The by-lawgave the power .to the Chairman of the Council, where default wasmade by a householder in the payment of ariy money due for watersupplied, to turn off his supply of water. It has been said that thisby-law is ultra vires, and it has been contended on behalf of theCouncil that, in view of the terms of section 109 of Ordinance No. 6of 1910, no objection can be raised to a by-law duly passed on theground of its being ultra vires. The District Judge has been atpains to point out that section 109 does no more than give by-lawsthe effect of law provided .they are intra vires. It would seem* so,if we shut our eyes to sub-section (4) of section 109 of the Ordinance.That sub-section provides for the laying of by-laws before the| Legislative Council to enable that Council, by resolution, to annulthem if .so minded. In such a case, following the analogy of adecision by the House of Lords with reference to sub-sections (4)and (5) of section 101 of the Patents, Designs, and Trade Marks Act,1883, which* provided that any rules made by the Board of Trade .in pursuance of that section should be laid before both Houses ofParliament, and that if either House “ within the next forty daysresolved that such rules or any of them ought to be annulled, thesame should after the date of such resolution be of no effect ” (seeInstitute of Patent Agents v. Lockwood1), this Court has held that thevalidity of by-laws that have passed through the process prescribedin sub-section (4) of section 109 cannot be questioned. (La Brooyv. Ismail,* Colombo Municipal Council ,u. Uduma Lebbe Markar,3Muttu Ramen v. Municipal Council of Kandy. 4) Section 11 ofOrdinance No. 21 of 1901 cited by the District Judge has no appli-cation to such by-laws. It applies to rules and by-laws ordinarily,passed, and in respect of which no such special procedure as
H189A A. C. 347.*1A.C.R.38.
* 1 L.L.R. 9.4 Cur. L. R. 49.
( 197 )
that laid down in sub-section (4) of section 109 has been providedfor. Moreover, I am not prepared to say that the by-law is ultravires. In view of what I have said already, it is not necessary toenter into the details of the facts in connection with the questionhere involved. Suffice it to say that I have examined the differentenactments referred to by the. District Judge, and they appear to meto vest full authority in the Municipal Council to pass such a by-lawas by-law No. 173.
The next matter pressed upon us was that the right to recover theamount due from the plaintiff for excess of water consumed wasbarred by section 283 of Ordinance No. 7 of • 1887, inasmuch assteps for such recovery under sections 281 and 282 (corresponding tosections 234 and 233 of Ordinance No. 6 of 1910) had not beentaken within three months after the money had become due. Butit seems to me that section 283 of Ordinance No. 7 of 1887 has noapplication to this case. No doubt, by-law No. 159 provides thatsums due in respect of the supply of water are recoverable in themanner provided by sections 281 and 282 of Ordinance No. 7 of1887, but there is no mention there of section 283. On the otherhand, it is provided by the amending by-law that the sum isrecoverable “ as if it were a tax under the Municipal CouncilsOrdinance,” but section 283 applies only to fines and penalties inrespect of certain offences under the Ordinance. It has been studthat the only mode of 'recovering the amount due was that laiddown in sections 281 and 282 of Ordinance No. 7 of 1887, and thattherefore it was not open to the Council to cut off the water supply ;but it seems to me that the right, to cut off the water supply is a rightquite independent of the right to recover any amount due for watersupplied. It is mainly intended to save the Council fromany obligation to continue to let a householder consume water whohas not paid for water already consumed.
I do not think that any of the contentions pressed or even raisedby the plaintiff are tenable, and I would set aside the judgmentappealed from and dismiss the plaintiff’s claim with costs.
Ennis J.—I entirely agree.
1913.
Febshu J.
SeyappaChetty v.MunicipalCouncil,Kandy,
Set aside.