ELIZABETH THELIS et al. v. THE MUNICIPAL COUNCIL OF COLOMBO.

Present: Mr. Justice Middleton and Mr. Justice Wood Renton.

ELIZABETH THELIS et al. v. THE MUNICIPAL COUNCIL
OF COLOMBO.

D. C., Colombo, 28,329.

Section 190 of Ordinance No. 7 of 1887 enacts: " The Government or the Municipal Council may from time to time cause to be made such main or other sewers, drains, and water-courses as may be judged necessary for the effectual draining of the Municipality, and, if needful, the Government or Municipal Council may carry them through, across, or under any street or any place laid out as or intended for a street, or any cellar or vault which may be under any of the streets, and (after reasonable notice in writing in that behalf) into, through, or tinder any enclosed or other lands whatsoever, doing as little damage as may be, and making full compensation for any damage done; and if any dispute shall arise touching the amount or apportionment of compensation, the same shall be settled in the manner hereinafter provided for the settlement of disputes respecting damages and expenses."

And section 281 of the same Ordinance enacts: "Except as herein otherwise provided, in all cases when compensation, damages, costs, or expenses are by this Ordinance directed to be paid, the amount, and, if necessary, the apportionment of the same in case of dispute, shall be summarily ascertained and determined by the-Magistrate or Municipal Magistrate."

Held, that the effect of section 281 was to take away the right of action at common law, and that a party injured by the exercise of the statutory powers conferred by section 190 is confined to the remedy given by section 281.

The Governor and Company of the British Cast Plate Manufacturer* v. Meredith (4 Term. Reports, p. 794) and Stevens v. Jeacocke, (11 Q. B. 731) followed.

THE plaintiffs, who were the owners of premises 15 and 59 Temple road, Colombo, sued the Municipal Council of Colombo for Rs. 2,000 damages, alleging that " between the 12th day of June, 1905, and 15th day of July, 1905, the defendant corporation caused to be cut a drain across the plaintiffs' said; premises and directed the water from the public drain into the said drain, whereby plaintiffs' said premises suffered considerable damage by reason of the water which overflowed the said drain cut as aforesaid and by the silting of grass which forms part of the said premises No. 59 and by depreciation in value of the said premises-by reason of the existence of the said drain." The defendant Council objected to the jurisdiction of the District Court and pleaded that the plaintiffs should have proceeded under sections 190 and 281 of the Municipal Councils Ordinance (No. 7 of 1887).

The District Judge (J. B. Weinman, Esq.,) held as follows: -

"The Municipal Council of Colombo, acting under the provisions of section 190 of The Municipal Councils Ordinance, 1887, on the 12th June, and the 15th July, 1905, cut a drain across the plaintiffs' land. Their right to cut the drain is not questioned. For the consequential damage the Council offered Rs. 197 as compensation, which the plaintiffs refused to accept. They claim Its. 2,000. Section 190 authorizes the Council to cut such a drain ' causing as little damage as may be, and making full compensation for any damage done, and if any dispute shall arise such dispute shall be settled in the manner hereinafter provided;' section 287 provides that compensation, costs, Ac, 'shall be summarily ascertained and determined by the Magistrate or Municipal Magistrate.'

In the face of these sections it is contended that this Court has no jurisdiction to entertain the claim. It was contended for the plaintiff that the jurisdiction of any Court could not be ousted except by express enactment. For instance, section 34 of Ordinance No. 24 of 1889, which ousts the Gansabhawa jurisdiction of Police Courts and Courts of Requests in certain matters ru

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