THE URBAN COUNCIL OF DEHIWELA- MOUNT LAVINIA et al , Appellant, and P. ANDY SILV

142-NLR-NLR-V-57-THE-URBAN-COUNCIL-OF-DEHIWELA-MOUNT-LAVINIA-et-al-Appellant-and-P.-ANDY-SILV.pdf

1956Present: K. D. de Silva, J., and Sansoni, J.THE URBAN COUNCIL OF DEHIWELA-MOUNT LAVINIA et alAppellants, and P. ANDY SILVA el al., RespondentsS. C. 263-26-1—D. C. Colombo, 5,S3SjL
Appeal—Hotico of tendering security—Signed by appellant's proctor and served on-respondent's proctor—Validity—Civil Procedure Code, ss. 24, 29, 756 (1).
A notice of tendering security issued under section 75G (1) of the Civil Pro-cedure Code is not invalid if it is signed by the appellant’s proctor and addressedto, and served on, the respondent’s proctor.
Urban Council—Bccovcry of rates—Seizure of property—Purchase of the 'propertyby Council in 193S—Prior sanction of Local Government Board not necessary—
. Transfer of the properly by Council in 1942—Approval of Executive Commitlee-(1946) 17 A’. L. It. 301.
.tiot necessary—-.Municipal Councils Ordinance (Cap. 103), sa. 143, 145,140 (1)—•T.ocal Government Ordinance (Cap. 105), ss. 4G, 47 (c), 1 S3—Urban CouncilsOrdinance, .Ye. 61 of 1039, ss. 4S (c) (1), 1S3 (1).
Whero property seized by nn Urban Council for tho recovery of rates waspurchased by tho Council in tho year I03S in terms of section 1S2 of tho LocalGovernment Ordinonco (Cap. 105), read with section 143 of tho MunicipalCouncils Ordinance (Cap. 103)—
Held, that tho prior sanction of tho Local Government Board was not neces-sary. Tho provisions of section 47 (c) of tho Local Government Ordinonco werenot applicable to such purchase.
Held further, that section 4S (c) (1) of tho Urban Councils Ordinance, Xo. G1 of1939, docs not imposo on an Urban Council any duty to obtain tho prior approvalof tho Executive Committee in order to sell property purchased by it in thocourse of recovering rates and faxes.
jA.PPEAL from a judgment of tho District Court, Colombo.
S. J. Kadirgrnnar, with P. Sotnalibilam, for the 1st defendant appellant.
H. V. Perera, Q.C., with S. J. Kadirgamar and John de Saram, forthe 3rd defendant appellant.
Stanley Perera, with Vernon J1Iarlyn, for tho plaintiff respondent.
Cur. ado. vult.
July 3, 1950'. K. D. de Sir.v.t, J.—
The land called Madatiyagahawatte bearing assessment No. 132,situate within the limits of Dehiwela-Mt. Lavinia Urban District Councilwas seized by the said Council and sold by public auction on 28.9.:3Sfor tho recovery of a sum of Its. 6/72 duo as arrears of assessment rates.At this sale the Urban Council who is the 1st defendant in this ease pur-chased the property and the chairman of tho Council in terms of section145 of the Municipal Councils Ordinance (Cap. 193) entered tho certi-ficate P21 on 20.12.’39 vesting tho land absolutely in the Council freefrom all encumbrances. On 20.12.M1 the Council put up the land forsale by public auction and it was purchased by the 2nd defendant for asum of Rs. 1,005/-. The Council having confirmed the sale executed thedeed of conveyance P22 dated 22.5. ’42 in favour of tho 2nd defendantwho by deed P23 dated 12.4. ’49 sold the land to the 3rd defendant.
Admittedly the plaintiff was a co-owner of this land prior to the saleheld on 28.9. ’38 at which the Council purchased it. The plaintifF in hisamended plaint prayed, that the vesting certificate P21 and the deed ofconveyance P22 be declared null and void as being ultra vires of thepowers of the 1st defendant under the Local Government Ordinance(Cap. 195) and Ordinance No. 61 of 1939. Tho plaintifF also contendedthat P21 and P22 being null and void no title passed to the 3rd defendanton deed P23. He prayed that he bo declared entitled to an undivided19/45 shares of tho land and also claimed the ejectment of the 3rd defen-dant and sought to xecover damages from him. In the amended plaint
no relief was claimed as against the 1st and 2nd defendants but they.were made parties t-o enable the Court to effectively and completelyadjudicate upon the questions involved in this action.-..
The learned District Judge held that the purchase of the land by the1st defendant on 28.9.’38 was void inasmuch as the Council had failedto obtain the prior sanction of the Local Government Board as contem-plated by section 47 (c) of the Bocal Government Ordinance (Cap. 195)and that therefore no title passed on P2I. Ho further held that evenif certificate P21 vested the property absolutely in the Council the saleby the latter on P23 to the 3rd defendant was ineffectual because therewas a contravention of the provisions of section 48 (c) (1) of the UrbanCouncils Ordinance, No. 61 of 1939, in that the Council had failed toobtain the prior approval of the Executive Committee before the saletook place. Accordingly ho entered judgment for plaintiff. The 1st and' 3rd defendants have appealed from that judgment.
I would first deal with the purchase by the Council. The learnedDistrict Judge held that the vesting certificate P21 was null and void forfailure of compliance with the provisions of section 47(c) (Cap. 195) whichreads as follows :—
47.“ Eor tho purpose of the .discharge of its duties under this
Ordinance, a District Council (without prejudice to any other powersspecially conferred upon it) shall have the following powers :—
(c) with the sanction of the Local Government Board, to purchaseor sell any land or buildings : ”
LThe learned District Judge was of the view that in no circumstances is an"Urban Council entitled to purchase or sell lands without the sanction of"the Local Government Board. The Counsel for the appellants contendedthat section 47 (c) had no application whatsoever to the purchase of aland by the Council at a sale held for tho recovery of rates and taxes interms of section 1S2. The learned Counsel for the plaintiff respondentconceded that if that view was right his submission that no rights passedon P21 was untenable. Section 47 provides that an Urban Council.shall have the powers set out in clauses (a) to (i) “ for the purpose ofthe discharge of its duties under this Ordinance ”. The precedingsection, i.e., section 46, enumerates the duties of the Urban Council.The collection of rates and taxes is not one of those duties. So thatthe powers of tho Urban Council under section 47, among which is theright to purchaso or soli land, are conferred on it for the purpose of dis-charging the duties set out in section 46. It would appear that therecovery of rates and taxes is a right and not a duty as contemplated bysection 46. Therefore it would be necessary to obtain the prior sanction-of the Local Government Board to purchase the land only if that purchase:is made for tho purpose of carrying out the duties imposed by the Council"by "section 46. It cannot be contended that the purchaso of this partic-mlar land was made for carrying out the duties enumerated in section 46.Hence the provisions of section 47 (c) would not apply to this purchase.Apart from that, section 47 specifically provides that tho powers
■conferred on an Urban Council by that section are “ without prejudice"to any other powers specially conferred upon it Section 1S2 of this•Ordinance (Cap. 185) is one of a group of sections which deal withassessment and recovery of rates and taxes Section 182 reads :—
"All rates and taxes levied or imposed under this Ordinance, inrespect of which no other method of recovery is spocificalJy providedunder this or any other Ordinance, or under any regulations madethereunder, shall be recoverable in the same manner as rates and taxesare recoverable under the Municipal Councils Ordinance, and all theprovisions of sections 135 to 147 of that Ordinance shall with thenecessary modifications apply accordingly. ”
This section provides a special scheme for the recovery of rates and taxesand that scheme is the one set out in sections 135-147 of the Municipal-Councils Ordinance (Cap. 193). The powers conferred by section 1S3would fall within “ any other special powers ” of an Urban Council savedbj' section 47. I am unable to agree with the learned District Judgethat the powers arising from section 182 are subject to the provisions of■section 47 (c). I am of the view that the scheme set out in sections135-147 of the Municipal Councils Ordinance (Cap. 193) operates inde-pendently of section 47 of the Local Government Ordinance (Cap. 195).
■ Section 143 of the Municipal Councils Ordinance provides that wheneverland or other immovable property is seized and sold for non-payment•of rates or taxes it shall be lawful for the chairman or any other person.authorised by him in that behalf to purchase the same. According tosection 145 of that ordinance a certificate signed by the chairman inrespect of the property purchased shall vest the property sold absolute^-in the Council free from all encumbrances and such certificate is conclusive-evidence of the title of the Council to such property. It is not suggested-that the certificate P21 is not in the form contemplated by section 145.As I observed earlier no prior sanction of the Local Government Board•is necessary before the chairman purchases a property in terms of section143. Therefore on P21 the land in question vested absolutely in theUrban Council.
I would now deal with the sale of the land on P22 by the Urban Councilto the 2nd defendant. The sale took place on 22.5. ’42. By that time"the Urban Councils Ordinance, No. 61 of 1939, had come into operation.By section 240 (I) of that Ordinance the Local Government Ordinance(Cap. 195) was repealed. But section 183 (1) of the new Ordinance■ substantially re-enacted section 182 of- the repealed Ordinance. Thelearned District Judge held that according to section 48 (e) (1) of the newOrdinance the Urban Council required the prior approval of the Executive•Committee before it could sell or exchange immovable property. The.same observations I made on sections 46 and 47 of the Local GovernmentOrdinance would apply to sections 47 and 48 of the Urban Councils•Ordinance. Section 47 of the latter Ordinance sets out the duties of an.Urban Council. Section 4S enacts “ for the purposes of the discharge ofits duties under this Ordinance an Urban Council (without prejudice to-any other powers specially conferred upon it) shall have the following
powers ”, One of those powers is to sell or exchange immovable property-subject to the prior approval of the Executive Committee. The sale offthis land was not effected for the purpose of discharging the duties enu-merated under section 47. Besides that, section 48 was enacted without-prejudice to any other powers specially conferred upon an Urban Council.Section 183 (1) of the Urban Councils Ordinance read with section 140 (1)-of the Municipal Councils Ordinance (Cap. 193) in my view confers aspecial power on an Urban Council t-o sell property purchased by it in thc-course of recovering rates and taxes. This special power has nothing-to do with Section 48 (e) (1). That being so the sale of this land by theUrban Council on P22 to the 2nd defendant is good. Therefore on P23-tho 3rd defendant acquired a valid title to the land from the 2nd defend-ant. The learned District Judge held that tho plaintiff had failed to-establish a prescriptive title to this land. That finding was not canvassed,in appeal. The plaintiff’s action therefore fails. I would accordinglyallow the appeal and dismiss the plaintiff’s action with costs in both.Courts payable to the 1st and 3rd defendants appellants.
The Counsel for the plaintiff-respondent raised a preliminary objection,to tho hearing of this appeal on the ground that the notice of tendering;security issued under section 756 (1) C. P. C. was not in order. Thisnotice was addressed to the proctor for plaintiff and signed by the 3rd.defendant appellant’s proctor and served on the plaintiff’s proctor. Insupport of this objection Counsel relied on Sivagurunathan v. Doresamy h.In the course of his judgment in that case Basnayakc J. stated :—
“ In regard to forms themselves the rule is that they arc to be followed.
implieity so far as the circumstances of each case may admit. Section
756 and form 126 not being in conflict, the notice required by the section.
should be in the prescribed form and no other. ”
The notice of security issued in this case is identical with form 12G except-that it was signed by the appellant’s proctor and addressed to the re-spondent’s proctor. Section 2-1 C. P. C. states that any act required to-be done byr a party in an action or an appeal may bo done by his proctor-unless otherwise expressly provided. So that the appellant’s proctorcould have validly signed the notice of tendering security. In my opinionit is sufficient if the notice of tendering security is served on the respond-ent’s proctor in view of the- provisions of section 29 C. P. C. The facts-in the case reported in 52 ir. L. R. 207 can clearly be distinguished fromthose in the present ease. In that ease, in the notice of security servedon the 7tn defendant-, there was a complete failure to mention that securityfor costs was being tendered for the 7th defendant. There is no suchfundamental defect in the notice under consideration. For these rcasons-wc overruled the preliminary objection.
Sa>*so>*i, J.—I agree.
Appeals allouted.
1 {1951) 52 N. L. J?. 207.