Chairman, Municipal Council, Colombo V. Soertsz

Present: Fisher C.J. and Akbar J. 1930

CHAIRMAN, MUNICIPAL COUNCIL, COLOMBO, v. SOERTSZ.

356-D. C. Colombo, 1,654.

Housing and Town Improvement Ordinance-Definition of street lines- Permission to build given to owner-Cancellation of street lines- Withdrawal of permission-Ordinance No. 19 of 1915, s. 18 (4).

A Municipal Council has no right to cancel street lines defined in pursuance of the powers vested in it under section 18 (4) of the Housing and Town Improvement Ordinance and to prohibit an owner from building within those street lines, where permission to build had been granted to him before the cancellation.

APPEAL from a decision of the Additional District Judge of Colombo in the form of a case stated to the Supreme Court under section 92 (1) of the Housing and Town Improvement Ordinance, No. 19 of 1915.

A street by the name of St. Mary's road, Bambalapitiya, less than 20 feet in width existed prior to 1915. In view of the provisions of Municipal section 18 (1) (a) of the Housing and Town Improvement Ordinance, No. 19 of 1915 no buildings could be erected adjoining St. Mary's road after the Ordinance came into force, until new street lines had been defined for it by the Municipal Council under section 18 (4). On April 27, 1924, the Council duly defined the street lines of St. Mary's road, and thereafter the respondent bought a plot of land adjoining this road and applied to the Chairman, Municipal Council, for permission to build six cottages on the land so purchased. The plans submitted by the respondent for this purpose were duly approved, and two of the six cottages were erected. Building operations in respect of the remaining four cottages having been suspended, for over a year, the respondent, in view of the provisions of section 10 of the Ordinance, applied for fresh permission to build. The Chairman, however, replied that during the interval the Municipal Council, by resolution of August 8, 1928, had cancelled the street lines which had been defined for St. Mary's road in 192'2, and that permission to build could not be granted on the ground that no street lines existed along St. Mary's road at the time of the respondent's second application. The respondent appealed to the District Court of Colombo under section 84 of the Housing and Town-Improvement Ordinance from the order of the Chairman refusing permission to build. The learned District Judge held that the Chairman was not justified in refusing permission, and that section 18 (4) of the Ordinance did not warrant the Council in cancelling street lines once they had been defined.

On the application of the Chairman, the learned District Judge stated a case for the Supreme Court under section 92 (1) of the Ordinance.

Hayley, K.C. (with him Keuneman and Gratiaen), for the Chairman, appellant.-The Council has power to cancel street lines once they have been defined under section 18 (4) of the Ordinance. These street lines are defined by resolution of the Council. A resolution is clearly an " order within the meaning of section 11A of the Interpretation Ordinance, No, 21 of 1901, which gives any authority vested with power to make an " order " the right, to amend, vary, revoke, or rescind it. Moreover, under the provisions of section 18 (4) of Ordinance No. 19 of 1915, the Council may " from time to time " define the street lines of any. street. The words " from time to time " have a well known signification in statutes; they imply the power to cancel and repeal. (Lawrie v. Lees [1 7 Appeal Cases 19, at p. 29.]; Kruze v. Johnson [ 2 78 Law Times 647, at p. 649.] .)

The fact that, the respondent had previously obtained permission to erect six cottages adjoining St. Mary's road before the street lines

were cancelled by the Council, and the fact that two of these cottages had in fact been built already, cannot be held to create an estoppel. Each cottage must

Click Here to Read the rest of this document