Seyappa Chetty V. Municipal Council, Kandy

Present: Pereira J. and Ennis J.

SEYAPPA CHETTY v. MUNICIPAL COUNCIL, KANDY

367-D. C. Kandy, 22, 310

Municipal Councils Ordinance-By-laws-Ultra vires-Cutting off water for non-payment of amount due for water `

A by-law giving power to the Chairman of the Municipal Council of Kandy, when default is made by a householder in the payment of any money due for water supplied, to turn oil the supply of water is not ultra vires. In any case the by-law would bo valid and effectual if, in terms of sub-section (4) of section 109 of the Municipal Councils Ordinance, 1910, it is laid before the Legislative Council and not annulled by it.

The right of the Municipal Council to recover an amount due for water supplied to a private individual is not barred in three months under section 236 of the Ordinance (section 283 of old Ordinance).

Bawa, K. C., for the appellant. -The District Judge is wrong in holding that the by-law in question is ultra vires.. The by-laws in question were placed before the Legislative Council a- required by section 109, sub-section (4). Their validity cannot be questioner? now. Counsel cited La Brooy v. Ismail, 1 Raman Chetty v. Municipal Council, Kandy 2, Colombo Municipal Council v. Uduma Lebbe Markar 3. Under the new by-laws the amount due is recoverable as a tax. The Chairman has therefore the power to distrain extra-judicially.

Jayewardene, for the plaintiff, respondent. -The plaintiff was not in default. He could not be said to have been in default when the amount was not ascertained. The sum due can only be ascertained by a judgment of the Magistrate. It is only when he is in default the Council could cut off the water. "No attempt has been made

1 1 Leader L. R. 9

2 (1909) 12 N. L. R. 249; 2 Cur. L. R. 94,

3 1 A. C. R. 38.

to recover the amount due in the manner set out in the Ordinance (sections 281 and 282 of Ordinance No, 7 of 1887). The Council could not therefore out off the water.

No steps were taken to recover the amount due within three months after the money had become due. The right to recover the amount is therefore barred under section 283 (Ordinance No. 7 of 1887).

Bawa, K. C., in reply.

Cur. adv. vult.

December 11, 1913. Pereira J. -

As explained by the District Judge, the question in this case is as to the right of the Municipal Council of Kandy to fix meters on water pipes for the purpose of regulating the Supply of water to private houses, and to cut off the water supply when the householder fails to pay for water supplied in excess of a certain fixed quantity. The Council claimed the right under its by-law No. 173. The by-law gave the power to the Chairman of the Council, where default was made by a householder in the payment of any money due for water supplied, to turn off his supply of water. It has been said that this by-law is ultra vires, and it has been contended on behalf of the Council that, in view of the terms of section 109 of Ordinance No. 6 of 1910, no objection can be raised to a by-law duly passed on the ground of its being ultra vires. The District Judge has been at pains to point out that section 109 does no more than give by-laws the effect of law provided they are intra vires. It would seem so, if we shut our eyes to sub-section (4) of section 109 of the Ordinance. That sub-section provides for the laying of by-laws before the Legislative Council to enable that Council, by resolution, to annul them if so minded. In such a case, following the analogy of a decision by the House of Lords with reference to sub-sections (4) and (5) of section 101 of the Patents, Designs and Trade Marks Act, 1883, which provided that any rules made by the Board of Trade in pursuance of that section should be laid before both Houses of Parliament, and that if either House '' within the next forty days resolved that such rules or any of them ought to be annulled, the same should after the date of such resolution

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