Present: Schneider J. and Jayewardene A.J.

COREA v. COREA et al.

138-D. C. Chilaw, 7,380.

    Public Thoroughfares-Building along a thoroughfare-Demolition by order of District Committee-Liability of Mudaliyar-Action for damages-Ordinance No. 10 of 1861, ss. 12 and 86.

A building constructed two or three feet from the road would be one along a thoroughfare within the meaning of section 86 of the Thoroughfares Ordinance..

Plaintiff constructed a building along a thoroughfare without giving notice, as required by section 86 of the Ordinance, and was called upon by the Chairman of the District Committee to remove the building.

On plaintiff's failure to do so, the Chairman of the District Committee, with the sanction of the Provincial Committee, directed the first defendant to demolish the building, which the latter proceeded to do. Plaintiff sued the defendant and those associated with him to recover a sum of Rs. 5,000 as damages for wrongful destruction of the house.

Held, that plaintiff's right to sue the defendant was not affected by section 12 of the Ordinance.

Held, further that the Chairman of the District Committee was within his rights in ordering the demolition of the building, and that the defendant was protected from liability for his action.

" As a rule when the discharge of a public duty imposed by statute upon a person or bodies of persons involves the exercise of a discretion, which is not a merely ministerial act, if this discretion has been exercised erroneously, no action lies except upon proof of mala fides or indirect motive."

THE plaintiff in this action, who was the owner of a block of land at the junction of two roads, commenced building operations thereon early in the year 1922. He had not, however, given the notice required by section 86 of the Thoroughfares Ordinance, No. 10 of 1861. The matter was brought to the notice of the District Committee, Chilaw, who issued a notice to the plaintiff to remove the building forthwith. The plaintiff took no notice of the letter and the District Committee acting under the instructions of the Provincial Committee authorized the Mudaliyar, the first defendant in the present case, to proceed to the spot and demolish the buildings erected, within ten days of the receipt of the letter.

The first defendant fearing resistance and a breach of the- peace took with him the second, third, and fourth defendants, who are the Muhandiram, the Inspector of Police, and the Vidane Arachchi of the place.

 The plaintiff now sues them to recover a sum of Rs. 5,000 as damages sustained by him by the acts of the defendants, which acts Corea v. the plaintiff says were wrongful and illegal.

The District Judge dismissed plaintiff's action, and the plaintiff appealed.

Hayley, for plaintiff, appellant.-The facts of the present case are hardly disputed and all parties are practically agreed as to them: The defendants have succeeded in the lower court on two specific points of law, viz. :-

(1) That they were not the party liable, as under section 12 of the Ordinance, the proper party to be sued was either the District Committee or the Provincial Committee.

(2) That even conceding that the action was properly constituted their action was justified under section 86.

With regard to the first point urged it cannot be seriously pressed on behalf of the respondents as the current of case law is very strongly against it. If the defendants admit that they were agents of the parties to be sued under section 12, and if as it is here, the acts committed amount to a tort, then either party may be sued for the damage, vide, Robertson on Crown, p. 638.

With regard to the justification it must be conceded that if any such power was vested in the Committee, it certainly was not by virtue of section 86 but by section 90, and purporting as they did to act under section 86, the act committed was ultra vires, and hence illegal.

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