140-NLR-NLR-V-23-ZOYSA-v.-FERNANDO.pdf
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Present; Bertram C.J.ZOYSA v. FERNANDO.
026—P. C. Negombo, 40,630.
Local Boards Ordinance, 88. 60 and 61—Land Acquisition Ordinance,,s. 4—Application by Deputy Chairman of Board to Governmentfor survey of a proposed deviation of a road—Application madewithout formal resolution of Board—Mandate issued to surveyor—Obstruction to surveyor—Powers of Governor unfettered by section61 of the Local Boards Ordinance.
The Assistant Government Agent, acting in pursuance of whathe understood to be the wishes of the Local Board, applied toGovernment that a survey should be carried out under section 4 ofthe Land Acquisition Ordinance, with a view to making a deviationof a road. The Board did not pass a formal resolution authorizingthe deviation or authorizing the application to Government undersection 61 of the Local Boards Ordinance. A surveyor, who wentto survey the land, in pursuance of a mandate issued to him, wasobstructed by accused, who was charged under section 183 of thePenal Code.
Held, that the powers conferred upon the Governor undersection 4 of the Land Acquisition Ordinance were for all pnrposesunrestricted, aud that there was nothing in section 61 of the LocalBoards Ordinance to restrict them.
'(1912) 16 N. L. R. 319.
1921.
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“ It seems to me the policy of section 61 that compulsory pro-ceedings should not he set in motion for the purpose of acquisitionsby these local bodies until an attempt has been made to secure thenecessary land by private treaty …. Nevertheless, thereis nothing in this to cut down the effect of the general words ofsection 4 of the Land Acquisition Ordinance.11
Section 60 of the Local Boards Ordinance does not apply tothe construction of a new street.
facts appear from the judgment.
A. St. V. Jayawardene, K.C. (with him Crooa-Dabrera andArulamndan), for appellant.
Jansz, C.C'9 for Crown, respondent.
December 20,1921. Bertram C.J.—
This appeal raises a question of some importance with regard tothe interpretation of the Land Acquisition Ordinance, No. 3 of 1876,in connection with section 61 of the Local Boards Ordinance,No. 13 of 1898. The facts are as follows:—
The Negombo Local Board had in hand the construction of a newroad. The trace had been made, and the defendant had declaredhimself willing to make a free gift of that part of his own premisesjyhich was required for the road according to the original trace. Asthe road proceeded, however, it was thought necessary to make adeviation which would take the conclusion of the road through theaccused’s land in another direction not so convenient to the accused.He declined to give the land required for this deviation, and therewas accordingly a difficulty about completing the improvement.No resolution of the'Local Board was passed formally authorizingthe deviation, nor was any resolution passed authorizing applicationto the Government under section 61 of the Local Boards Ordinance,[t appears, however, that an application was made to the Govern-ment that a survey 'should be carried out under section 4 of the LandAcquisition Ordinance, and it seems to have been assumed tliat thisapplication was made by the Assistant Government Agent as DeputyChairman of the Board, in pursuance of what he understood to bethi' views of the Board. A mandate, was issued, and a surveyorproceeded to the spot in pursuance of the mandate. He wasuh tnteku i/y the accused, and the accused is now prosecuted unders:< lion 183 of the LYiml Code iu consequence of this obstruction.U Is not necessary for mes to consider the evidence of the allegedobstruction, a» the learned Magistrate*** /lading of fact that therewas an obstruvl’im has not. been seriously contested.
It is, however, rontoiubd. that in issuing this mandate, beforeany application had been made* to him by resolution of the Board.,the. Governor was acting ultra- vino. and that, consequently, the
1921.
Zoyaa v,Fernando
( 471 )
accused was not obstructing a public servant in the discharge of'hispublic functions. It was argued that the effect of section 61 of theLocal Boards Ordinance is, for the purpose of all acquisitions to bemade by Local Boards in pursuance of the Ordinance, to limit thegenerality of the powers conferred upon the Governor by section 4of the Land Acquisition Ordinance. It was urged that while inordinary cases the Governor can set the machinery in motion simplyupon information that the land in question is likely to be neededfor a public purpose, .in a case under section 61 he can only do sowhere it appears that there is some hindrance in the way of theacquisition of the land required by private treaty and when hisassistance has been invoked by resolution of the Board.
I do not so read the two enactments. It seems to me that thepowers conferred upon the Governor under section 4 of the LandAcquisition Ordinance are for all purposes unrestricted, and thatthere is nothing in section 61 of the Local Boards Ordinance torestrict them. I will go so far as to say that, in view of the terms ofthe latter section* the appropriate time for the Governor to takeaction is after the matter has been formally brought to his notice byresolution of the Board. It seems to be the policy of section 61that compulsory proceedings should not bo set in motion for thepurpose of acquisitions by these local bodies until an attempt hasbeen made to secure the necessary land by private treaty. Thesame formula is used both in the Municipal Councils Ordinance,No. 6 of 1910, and in the new Local Government Ordinance. TheseOrdinances contemplate that it should be represented to the Gover-nor that the land is required for some public purpose within thesphere of the Board, and that there is a hindrance to the acquisitionof the land. I do not agree with the learned Magistrate that“hindrance” here can be interpreted as meaning “probablehindrance.” Nevertheless, there is nothing in this to cut down theeffect of the general words of section 4 of the Land AcquisitionOrdinance. It may, in certain cases,.be thought convenient thereshould be a preliminary survey before the question is formallyconsidered by the Board and before the owner is approached with aview to a voluntary purchase. Even though no resolution of theBoard has been passed, I see no reason inlaw why a Chairman, whois acquainted with the policy of the Board and anticipates that suchan acquisition may be required, should not represent to the Governorthat the land is likely to be needed for a public purpose, with a viewto obtaining the fullest possible information for the Board on thesubject. At the same time, as even a preliminary survey mayinvolve interference with private rights of property, it is more inaccordance with the spirit of the Ordinance tiiat he should obtainthe formal resolution of the Board before approaching the Gorernor.
It seems to me a matter within the discretion of the Governorwhether lie should act at this point, or whether, in view of the special
1921.
Bebsbau
C.J.
Zroysa v.Fernand*
( «2 )
1921.
Bertram
C.J.
Zoysa v.Fernando
provisions of section 61, be should require to be satisfied that ahindrance has actually arisen, and that his assistance has beeninvoked by a formal resolution before he would take any steps in thematter. In other words, while the provisions of section 61 suggestmatters for the consideration of the Governor in the exercise ofhis powers under section 4, they do not of themselves fetter hisdiscretion in the exercise of those powers nor derogate from thegenerality of the words which section 4 employs.
As the question of the powers of the Board in relation to theconstruction of new streets was discussed in the argument, I shouldlike to add a few words on that subject. It was assumed that inorder to construct a new street the Board must act under section 60and obtain the sanction of the Governor in Executive Council forthat purpose. The word “ open ” was assumed to apply to theconstruction of a new street. It was considered that the wordsit shall be lawful for the Board …. to … . open. . . . any street ” had this meaning. I confess that I doubtthe correctness of this interpretation. The word “ open ” in theconnection in whioh it is used “ widen, open, enlarge, or otherwiseimprove any street ” refers, in my opinion, to operations of the samenature as those covered by the words “ widen ” and “ enlarge.”It applies to an improvement of an existing street. The reason whythe sanction of the Governor in Executive Council is thoughtnecessary is that theptf lie havecertain rights over existing thorough-fares, and that local bodies should not he allowed to do anythingaffecting -existing thoroughfares without the sanction of the1 executive. The right to construct new streets is not expresslyconferred upon the Board, but it is implied by chapter II., by-law 2,of the model by-laws contained in Schedule D. This by-law isderived from section 71 of the Roads Ordinance, 1861. Theincidental words ” intended street ” imply the power of the Boardto construct a new street. The by-law applies, in my opinion, tocases in whioh the Board has already by a resolution adopted andexpressed an intention to construct a new street. I have notobserved any provision which would authorize a preliminary surveyfor the purpose of forming a plan for the construction of a new streetby a local authority. The only way in whioh this can be done, as itseems to me, is by application to the Governor under section 4 of theLand Acquisition Ordinance. No doubt it is not in every case thatsuch a preliminary sarvey is necessary, and in view of the widepowers given to the officer acting under the'section, and the inter-ference with private rights which such a survey may involve, theGovernor would no doubt take this circumstance into considerationbefore ordering such a preliminary survey, but his discretion in thematter is free and unfettered.
For the reasons given, I dismiss the appeal.