058-NLR-NLR-V-78-V.-SANGARALINGAM-Petitioner-and-THE-COLOMBO-MUNICIPAL-COUNCIL-and-another-Re.pdf
bangaralmgam v. Colombo Municipal Council
501
1976 Present: Samerawickrame, J., Weeraratne, J., and
S ha r van an da, J.
V. SAN GAR ALIN GAM, Petitioner, and THE COLOMBOMUNICIPAL COUNCIL and another, Respondents
S. C. 665/70—Application for a Mandate in the nature of a Writ
of Certiorari
Housing and Town Improvement Ordinance—Sections 102 (1) and102 (4)—Erroneous exercise of jurisdiction—No excess of juris-diction—Availability of Certiorari.
A notice served under Section 102 (1) and a decision madeunder Section 102 (4) of the Housing and Town ImprovementOrdinance cannot be quashed by a Writ of Certiorari where thecharacter of the complaint is an instance of an erroneous exerciseof jurisdiction and not on the basis of excess of jurisdiction.
302 SHAR V AX AND A, J.—Hangaralinyatn c. The Colombo Municipal Council
“ A judicial tribunal has power to err within the limits of itsjurisdiction. Such an error cannot be impeached otherwise thanon an appeal to the Minister in terms of Section 102(3)
APPLICATION FOR Writ of Certiorari
C. Ranganathan with K. Thevarajah for the Petitioner.
M.Tiruchelvam for the 1st Respondent.
N.Sinnetamby, Deputy Solicitor General with D. C. Jaya-sooriya. State Counsel for the 2nd respondent.
Cur. adv. vult.
March 22, 1976. Shahvananda, J.—
The Petitioner is the owner of premises No. 49, JinanandaMawatha, Kotahena. By notice dated 20th October, 1969,marked ‘ A ’, the Deputy Mayor of Colombo Municipal Council,in the exercise of powers, duties and functions under Section102 (1) and (2) of the Housing and Town Improvement Ordi-nance (Cap. 268) delegated to him by the Council, directed thePetitioner to effect the following repairs to the building bearingassessment No. 49, Jinananda Mawatha : —
Re-erect the damaged wall without structural altera-
tions.
Attend cracks and broken plaster in other walls.
Repair roof having replaced perished timber in roof.
Repair doors, windows and trellis work.
Attend damaged floor.
Prop up building to avoid roof collapsing.
The notice stated that the building appeared to be in a stateof gross disrepair and injurious to the health and safety of theoccupants thereof and that if the Petitioner did not begin tocomply with the requirements specified therein within sevendays of its service or did not complete the work with due dili-gence, the authority would cause the work to be carried outand recover the expenses.
By petition dated 27th October, 1969, the Petitioner appealedto the Minister of Local Government, the 2nd Respondent, interms of Section 102(3) of the Ordinance (Cap. 268) against theservice of the aforesaid notice ‘ A ’ on the grounds that thebuilding was an old building of mud and cabook and dilapidatedduring the long years by stress of weather, wear and tear andthat no repairs, short of re-erection of the building, were possibleand prayed that the notice “ which is impossible and impracti-cable to comply with ” be withdrawn.
In support of his appeal, the Petitioner tendered a reportdated 4.11.1969 by Messrs. Ganesan and Kumarasuriyar, Archi-tects and Engineers. The report reads as follows : —
“The old building in the above premises No. 49, was
inspected in detail on 26th October. 1969. The roof of the
SHARVANANDA, J.-—Sangaralingam v. The Colombo Municipal Council 503
building is supported by cabook columns. The panel wallsare of mud and brickbat construction. As this building ison a slopy land at the bottom, the ground is always oozingwet. Therefore the foundations are weakened. The panelwalls have no bearing onto the columns and have separatedout due to constant wetness. These walls are on the vergeof collapse. No effective or lasting repairs can be carried outto this old and dilapidated building. We recommend demoli-tion. ”
The Petitioner was told that the report of Messrs. Ganesanand Kumarasuriyar would not be accepted by the Minister andthat the Minister would appoint an Engineer appointed outsidethe Colombo Municipal Council to inspect and report to theMinister. On or about 23rd February, 1970, Mr. Marzook.Superintending Engineer, Local Government Works, made hisreport to the Ministry. According to that report, item 1 men-tioned in the notice * A ’, viz. re-erect the damaged wall withoutstructural alterations, was not possible as the “ damaged wallcannot be re-erected without structural alterations as the walllying right angle and within the street line has been ordered
by the Municipal Engineer to be demolisheddemolition of
this wall will involve structural alterations. ”
The Respondents have filed in these proceedings, two reportsmade by the Assistant Commissioner of Local Government dated9.2.1970 and 9.3.1970., marked R1 and R2, according to whichthe building is in a dilapidated condition and is a threat tothe lives of the occupants.
It is common ground between the parties that the buildingbearing assessment No. 49 is in a dilapidated condition and callsfor urgent action, either by way of repair or of demolition andre-erection of the building. The d'spute is as to the kind ofremedy. According to the Petitioner, the building is in aruinous state, beyond repair and that no repair, short of re-erection of the building, can be effectively done. The reportsof the Engineers cited by the Petitioner lend support to thecontention of the Petitioner. But the Minister, to whom thesereports were available, has, in the exercise of his powers underSection 102(4) of the Housing and Town Improvement Ordi-nance, after necessary inquiry, dismissed the Petitioner’s appealbv letter dated 16.3.1970. According to the provisions of thesaid Section, “ the decision of the Minister on any appeal made
to him under this Section shall be final and conclusive andshall not be questioned in any Court of .law. ” ….
The Petitioner has, by the present application, applied tothis Court for the grant of a mandate in the nature of'a1 Writ :of Certiorari quashing the order of the Deputy Mayor contained
504 SHAHVANANDA, J—Sangaralinyam v. The Colombo Municipal Council.
m the notice * A ’ requiring the Petitioner to effect repairs topremises No. 49, and the order of the Minister dismissing thePetitioner’s appeal on the ground that orders of the DeputyMayor and the Minister were made without jurisdiction.
There is no dispute on the preliminary question which investsthe Municipal Council with jurisdiction to exercise the powersreferred to in Sec. 102(1) of the Ordinance, whether to orderthe taking down or securing or repairing the building, thebuilding be ng admittedly “ in a ruinous state, or to be likelyto fall, or to be in a state of gross disrepair, or to be injuriousto the health or safety of the occupants. ” No question ofgiving itself jurisdiction by an erroneous decision on a collateralissue arises on these facts. No challenge is made to that juris-diction to make any one of the orders referred to in Sec. 102(1).The question of what is the proper order to make in such astate of affairs is a matter within the jurisdiction of the Councilor of the Minister on an appeal. If the Council makes onerroneous order, viz., to effect certain repairs when the properremedy is to order demolition of the building, it does notexceed its jurisdiction in making such an order. It is an errorwithin jurisdiction, but not a jurisdictional enor which willrender the order ultra-vires. A judicial tribunal has power toerr within the limits of its jurisdiction. Such an error cannotbe impeached otherwise than on an appeal to the Minister interms of Sec. 102(3). The Minister’s decision on such appeal hasbeen given the stamp of finality and is made not reviewableby Court by the terms of Sec. 104(4). Such decision cannot bequashed by Certiorari. This Court, on application for a writ ofcertiorari cannot exercise appellate jurisdiction over the Minis-ter’s decision. What is complained of is an instance of erroneousexercise of jurisdiction and not excess of jurisdiction which canbe corrected by this Court in the exercise of its supervisoryjurisdiction. The finding as to the kind of remedy wentto the merits of the determination only and not collateralto the merit of the decision. The statutory power vested in theCouncil and in the Minister by Sec. 102(1) and (4) has beenexercised bona fide and on material available to them. Thereis no allegation of abuse of power. The power has been validlyexercised and no question of excess of jurisdiction is involved.
The application for a Writ is accordingly refused With costs.Samerawickrame, J—I agree.
Weeraratne J-—I agree.