Ibrahim Et Al. V. Colombo Municipal Council

1937 Present : Poyser S.P.J. and Koch J.

IBRAHIM et al. v. COLOMBO MUNICIPAL COUNCIL

103-D. C. Colombo' (Special), 2,078.

Housing and Town Improvement Ordinance-Scheme for lighting, sewering, draining, and metalling lane-Apportionment of cost-Appeal to special tribunal-Jurisdiction of Court to canvass the decision of Council regarding construction of work-Ordinance No. 19 of 1915, ss. 25 (7), 93, and 94.

Where the Municipal Council acting under section 25 of the Housing and Town Improvement Ordinance approved of a scheme for the lighting, sewering, draining, metalling, &c, of a lane and the apportionment of the cost thereof among the owners of the premises affected,-

Held, that the tribunal of appeal appointed under section 93 of the Ordinance is limited to the question of the apportionment of cost among the owners, and is not entitled to inquire whether the resolution of the Council as to the necessity for the works of construction was ultra vires.

A party, who is aggrieved by the decision of the Council with regard to a work of construction, may proceed by way of a writ of prohibition or similar mandate to the Supreme Court.

THIS was a case stated by the District Court under section 92 (1) of the Housing and Town Improvement Ordinance, No. 9 of 1915.
The question submitted was whether the tribunal of appeal appointed under the Ordinance in considering the question of the apportionment of expenses among the owners of a scheme for lighting, sewering, draining, and metalling a lane, approved by the Municipal Council of Colombo, has jurisdiction to inquire into the necessity of the works of the construction approved by the Council.
The District Judge after finding that the right of appeal was not restricted to the question of apportionment held that he had the power to determine whether the provision of soil sewer came within the definition of " Construction " in section 2 of the Ordinance.

H. V. Perera (with him J. L. M. Fernando), for the appellant.-The appeal contemplated by section 25 (7) is an appeal against the apportionment, i.e., the proportion of the total expenses settled by the Chairman as the share to be paid by the various frontagers. Here the frontagers challenge not " the apportionment" of the expenses inter se but (a) the inclusion in the amount of these expenses of the cost of the 9-inch soil sewer and (b) the necessity for a metalled roadway, their contention being that a gravelled roadway was sufficient. In short the frontagers attack not

the apportionment by the Chairman, but the resolution of the Council The frontagers say that the part of the resolution regarding the soil sewer ' was ultra vires and the part of the resolution dealing with the metalled roadway required something that was unnecessary. These matters may be questioned by some appropriate procedure but they cannot be raised in an appeal against " the apportionment". These submissions are supported by cases decided under section 157 of the Public Health Act, 1875-Cook v. Ipswich Local Board [1 24 Law Times Rep. 579. ]; In re an Arbitration between Stoker and Mayor, &c, of Morpeth[2 112 Law Times Rep 753.] . If " apportionment" be construed in this sense, the second and third points stated for the opinion of this Court must be answered in the negative.

The fourth point stated for the opinion of this Court is whether the soil sewer falls within the definition of the term " construction." in section 2. The word " sewering " in the definition of " construction " includes the laying of the 9-inch soil sewer.

J. R. V. Ferdinands (with him D. Jansze), for respondent.-The District Judge rightly held that the Council had clearly acted ultra vires in passing a resolution to include the construction of the 9-inch soil sewer. But for the purposes of this matter it- is not necessary to inquire whether or not the Council had jurisdiction to resolve on t

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