059-NLR-NLR-V-29-VANDERSMAGT-v.-JAYAWARDENE.pdf
( 319 )
Present; Garvin J.
VANDEBSMAGT JAYAWARDENE.
691—M. C. Colombo, 2,946,
Municipal by-laws—Tree threatening to fall cn house and injure occupants—Chairman's powers.
Where a tree does not overhang a street, • the Chairman of theMunicipal Council has no power to order its removal, unless theCouncil deems it likely that the tree will fall upon a house orbuilding and injure its occupants.
Sourjah v. Hadjiar 1 not followed-
A
PPEAL from a conviction by the Municipal Magistrate ofColombo.
H. V. Perera, for appellant.
Choksy, for respondent.
January 16, 1928. Garvin J.—
The accused was convicted for “ failing to remove a coconut treedeemed likely to fall upon the building bearing assessment No. 68,Baseline road, in breach of rule 47, chapter VIII. of the MunicipalCouncil’s by-laws."
He has appealed, and the ground upon which his appeal is basedis that the Chairman had no power to call upon him to, remove thetree inasmuch as the Council had not considered the matter or“ deemed ” the tree to be likely to fall upon and injure the occupiersof the building referred to.
By-law 47 empowers the Chairman to cause notice to be servedon the owner or occupier of the ground upon which a tree standsrequiring him to cut down or remove the said tree or branch orfruit thereof—
“ (a) Whenever any tree or branch or fruit of a tree, within thelimits of the Municipality, shall be deemed by the Councilto be likely to fall upon any house or building and injurethe occupiers thereof; or
“ (b) Whenever the same shall overhang any street/*
As a matter of interpretation I should have thought it plain thatwhereas in the case of a “ tree or branch or fruit of a tree ” whichoverhangs a street the Chairman was empowered to require itsremoval, he could only issue such a requisition in the case of such a
1 (1914) 18 N. L. R. 37.
1928.
( 320 )
1928. tree or branch or fruit which did not overhang a street when it wasGarvin J. * deemed by the Council to be likely to fall upon a house or building—1— and injure the occupier. In the one case his right to act proceedsVandersmagt from circumstance that the tree a& a fact overhangs the street;Jayawardene in the other case it comes into existence only if and when it isdeemed by the Council that the tree or branch or fruit is likely tofall upon and injure the occupiers of a neighbouring building.
There is a material difference between the case of a tree whichoverhangs a street and the case of a tree which does not do so.The by-law indicates that it was thought that in the latter casebefore an individual is compelled to cut down a tree upon whichhe may set great value the Council itself should decide whether ornot it is a menace to hisneighbours. Itmay well be thatthe
discretion may with safetybeleft to theChairman.I am not,
however, concerned with the question of policy. The meaning of theby-law is unambiguous, and in a case such as this the Chairman 6anonly require the removal of a tree if it is deemed by the Council ttr belikely to fall upon any house or building and'injure the occupiers.
It is urged, however, that this is an executive act which the Councilis authorized to do and might therefore’ by reason of section 46 ofthe Municipal Council's Ordinance be done by the Chairman. Thiscontention was accepted in the case of Sourjah v. Hadjiar,1 butI regret I am unable to take the same view. The part assigned tothe Chairman by this by-law isundoubtedlyexecutive.But inthe
case of a tree which doesnotoverhang astreet, hispowersand
duties only arise when the Council has decided that a particulartree is dangerous. The part assigned to the Council* is deliberative,not executive.
The appeal is allowed, and the accused acquitted.
Appeal allowed.
'(1914) 18 N. L. R. 31.