Ramen Chetty V. The Municipal Council

Present: Mr, Justice Wood Renton.

RAMEN CHETTY v. THE MUNICIPAL COUNCIL, KANDY.

C. R., Kandy, 17, 260.

Water service, cutting off-By-laws-Validity-Excessive consumption of water-By-laws 157 and 173--Ordinances Nos. 7 of 1887 and 8 of 1901, s. 6.

Section 173 of the by-laws of the Kandy Municipality, made under the provisions of section 6 of Ordinance No. 8 of 1901, does not empower the Municipal Council to out off the water supply of a ratepayer who is not in default as regards payment of his ordinary water-rate, but has merely used a private supply of water for other than domestic purposes.

THE plaintiff, who was the owner of house No. 25, Trincomalee - street, Kandy, to which a water service had been allowed by the Council some years ago, alleged that the defendant Council on or about May 10, 1908, wrongfully cut off the supply of water to the said house, and prayed for a decree restoring the water service to the said house, and also for an injunction restraining the Council from continuing to cut off the water supply and compelling its restoration. The defendant Council answered that the plaintiff had failed to comply with section 157 of the by-laws relating to water supply, in that he did not pay dues for water used in excess of his allowance during the first and second quarters of the year 1907, and that the Council was therefore justified under by-law 173 in stopping his supply of water.

The following issues were framed at the hearing: -

(1) Are the by-laws under which the defendant Council is alleged to have acted ultra vires ?

(2) If so, is the plaintiff barred from taking such a plea by sub-section (2) of section 6 of Ordinance No. 8 of 1901 ?

(3) If they are valid, was the Council justified under section 157 in fixing a meter on the pipe in plaintiff's premises ?

(4) If they were, has plaintiff consumed water in excess of the amount allowed under that section for the first and second quarters of 1907 ?

(5) If so, was the defendant Council justified in cutting off the supply under section 173.

(6) What damages, if any, is plaintiff entitled to recover ?

The Commissioner of Requests (T. B. Russell, Esq. ) held as follows (November 6, 1908): -

" To take the issues one by one. On the 1st and 2nd issues Mr. Beven, for plaintiff, argued that as the Municipal Council's Ordinance, No. 7 of 1887, nowhere authorizes the framing of rules regarding water supply, the rules framed for this purpose are ultra vires. Against this Mr. Vanderwall for defendant Council referred me to amending Ordinance No. 8 of 1901. Section 5, sub-section (28), enables by-laws to be framed for every other purpose which the Council may deem necessary for the carrying out of the several provisions of the Ordinance. Section (b) enlarging the Council's powers, which shall extend to all matters about which it is expedient to make by-laws for the better carrying into effect of the objects of the Ordinance. As if this were not enough, the next section, section 6, makes all by-laws regularly proclaimed as legal, valid, effectual, and binding as if the same had been enacted in the Ordinance itself. It seems to me quite clear that these issues must be decided in defendant's favour. There is good reason to hold that the by-laws are in themselves ultra vires. But whether this is so or not, the plaintiff is by section 6 effectually barred from questioning their validity.

" The 3rd issue suggested by Mr. Beven was rejected by me. He wished to be allowed to prove that the Council was not justified, in the first instance, in fixing a meter in plaintiff's premises. This seemed to me not only an unnecessary issue in itself for deciding the real cause of dispute between the parties, but no mention of the intention to raise it was made in the notice of action which was served on the defendant Council.

'' The 4th issue is one of fact. The defendant seems to me to have clearly proved that, for the

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