077-NLR-NLR-V-65-THE-CHAIRMAN-URBAN-COUNCIL-TRINCOMALEE-Appellant-and-V.-KANDASAMY-Responden.pdf
The Chairman, Urban Council, Trincomalee v. Kandasamy
379
Present: Sinnetamby, J.
THE CHAIRMAN, URBAN COUNCIL, TRINCOMALEE,Appellant, and Y. KANDASAMY, RespondentS. C. 77/60—C. R. Trincomalee, 2634JElectricity Act—Structure erected on a land in terms of Section 15—Incapacity of theowner of the land to ask for its complete removal subsequently—Scope of Section 18-
In an. action brought by the owner of a land against an Urban Council claimingdamages on the ground that the Council had refused and failed to remove astay-wire which had been fixed on his land by the Council as licensee under theprovisions of the Electricity Act—
Held, that once steps have been taken by a licensee to instal line3 or workson a land in terms of Section 15 of the Electricity Act, the owner of the land hasno right to ask for or enforce the removal of any structure that has been erectedon his land. An application under Section 18 of the Act is limited to removalof the structure to another site and does not extend to complete removal.
380
SISnsTBT AMBY, J.—The Chairman, Urban Council, TrinoomcUee
v. Kandammy
Appeal from a judgment of the Court of Requests, Trincomalee.E. B. Vannitamby, for Defendant-Appellant.
S. Bajaratnam, for Plaintiff-Respondent.
February 19,1962. Senotetajuby, J.—
This is an action brought by the owner of a land against the UrbanCouncil claiming damages on the ground that the Council had refused andfailed to remove a stay-wire which had been fixed on his land under theprovisions of the Electricity Act, No. 19 of 1950. It would appear thatthe plaintiff had purchased this land from his vendor after steps hadbeen taken under the Electricity Act to fix this stay-wire on the land.Apparently he thought that he was entitled in law to call upon theUrban Council to remove completely the stay-wire in order that he mayput up a building. The learned trial Judge took the view that “ theCouncil was wrong in refusing to grant him that relief”. The questionto be determined in this case is whether the Council was wrong in refusingto remove the stay-wire.
Section 15 of the Electricity Act, No. 19 of 1950, empowers a licensee,,in this case the Urban Council, to enter upon any land in private ownershipand fix posts and take such other action as would be necessary to renderthe posts safe and efficient. It is for that purpose that the stay-wirewas erected. But this power is subject to the condition that the licenseeshall pay compensation to the owner of the land for any damage that,may be caused. There is provision for notice to be given by the licenseeand for written objections to be made. These are things that happenedduring the ownership of the plaintiff’s predecessor in title. It is notclear in point of fact whether compensation was paid. One must assume-that either compensation was paid or it was waived. Once steps aretaken under the provisions of Section 15 the owner has no power orright to require the removal of the stay-wire or any other structureerected on his land for the purposes of the Act. But Section 18 empowersthe owner or person in possession to ask for the removal of any post orapparatus to another part of the land or to a higher or lower elevation oraltered in some form. It does not empower the owner to ask for itscomplete removal, and it is here that the learned trial judge went wrong.He took the view that in as much as the Electricity Act does not providefor complete removal the Common Law rights come into operation and aparty is entitled to ask for complete removal, and in the alternative to-
SDTNETAMBY, J.—The Chairman, Urban Council, Trinoomalee
v. Kandasamy
381
claim damages. It seems to me that once steps have been taken in termsof Section 15, the owner has no right whatever to ask for or enforce theremoval of any structure erected on his land. The time to object andto ask for compensation is when steps are taken under Section 15 and-not thereafter. The position is very similar to that which takes place underthe Land Acquisition Ordinance. If the compensation is insufficient,there is provision for the amount to be deposited in the District Courtand for the Court to assess the amount of compensation. That is theonly remedy that the owner has. Thereafter he cannot ask for the removalof the structure that has been erected. But he could ask for its removalto another site or to its being altered which he is entitled to do underSection 18. If he fails to take steps under Section 18, then clearly hecannot come to Court and ask for damages or any other right which butfor the Electricity Act the Common Law would have given him.
The contention on behalf of the Respondent was that application mustbe regarded as an application under Section 18, but any application underSection 18 can only be limited to removal to another site and not tocomplete removal. Furthermore, if the licensee omits or fails to complywith the request, steps could betaken under sub-section 2 by an applicationto the Chief Electrical Inspector. The Chief Electrical Inspector isalleged to have made an order but that order is not before this Court.Indeed, even the Chief Electrical Inspector cannot order completeremoval, and if he did so he would be acting beyond his powers.
Learned counsel for the respondent wanted this Court to infer from P. 5that the order of the Chief Electrical Inspector was that the stay-wireshould be removed, but if the respondent wished that inference to bedrawn his obvious duty was to have produced the order of the ChiefElectrical Inspector, but that has not been done. In any event it seemsto me that no cause of action has accrued to the plaintiff to sue thedefendant Council for damages. His remedy was to apply by way ofSection i’8. The council has since removed the stay-wire and they areperfectly free to do so, and the plaintiff should have been happy thatwas done instead of rushing into Court on a cause of action which didnot exist. In my opinion the action was ill-conceived. I accordinglyset aside the judgment of the learned Commissioner and dismissplaintiff’s action with costs both here and in the court below.
Appeal allowed.