1933 Present: Dalton A.C.J. and de Silva A.J.

NEWNHAM v. LUCAS FERNANDO.

175-D. C. Colombo, 2,861.

Housing and Town Improvement-Laying of street lines-Existing street and continuation thereof-Meaning of continuation-Ordinance No. 19 of 1915, s. 18 (4).

Where power is given to a local authority by section 18 (4) of the Housing and Town Improvement Ordinance to define by resolution " the lines by which an existing street or any part or continuation thereof is bounded "-

Held, that the section applied to streets existing at the time of the resolution or to any proposed continuation thereof.

APPEAL from an order of the District Judge of Colombo.

In 1926 the Municipal Council of Colombo purported to define the lines of a street, according to a plan attached to the resolution, connecting Buller's road with the Galle road. The present claim arose out of the acquisition of the land by the Municipality for public purposes and the amount of compensation payable for the same. It was contended for the claimant that the street lines had not been validly laid down in terms of section 18 (4) of the Housing and Town Improvement Ordinance, No. 19 of 1915.

H. V. Perera (with him J. R. V. Ferdinands), for claimant, appellant.- The Chairman of the Municipal Council acquired 2 roods 7.84 perches under the Land Acquisition Ordinance, offering Rs. 26,777.25 as compensation to the appellant. The block of land is situated at Reid avenue. The plaintiff has discriminated between two portions of this land because one cannot build between street lines. The land was acquired on February 10, 1931. This street is a new street because no street lines were laid down in accordance with the Ordinance. The street lines were laid down across private property, where there was no street at all on May 14, 1926. The street lines laid down were not in accordance with law inasmuch as there was no existing street, public or private. Section 18 of Ordinance No. 19 or 1915 does not authorize the laying of street lines under these circumstances, although the Council claims to have acted under section 18 (4). If the land is acquired for the purpose of a road then the Council can lay down street lines under section 18. There was no intention of extending Buller's road at the time of its construction. At the time of making Buller's road it was complete as it ran into Reid avenue. The Chairman of the Council contends that the Council has power under section 18 (4) to define lines for the continuation of any existing street. When the street lines were laid down the land was private property. The section refers to continuation of a street. The Council cannot lay street lines where there is no road. The road and its continuation must be conceived at the same time. 35/11

The mere possibility of continuation is not the test to be applied. Section 18 (1) (a) draws a distinction between an existing street and a new street. The road must have existed in 1915, then street lines can be laid at any time. Before the Council can lay down street lines the continuation must be in existence. A word or expression in ordinary use need not have the same meaning in a different context. In this context " existing street" is used to distinguish it from a " new street". Until acquisition the private owner can do what he likes with it Street lines are laid down only in respect of an existing street, or a part of it or a continuation of it. In order to stop building, street lines should be laid under the 1915 Ordinance.

Section 46 enables the Council to acquire land for the purpose of laying down a new street. Continuation may refer to the full execution of an idea present at the time when the original road was laid down. The intention was to connect Borella and Reid avenue. These views are supported by the resolution of the Council.

F. A. Hayley, K.C. (with him J. L. M. Fernando), for plaintiff, respondent.-The s