140-NLR-NLR-V-49-FERDINANDUS-Appellant-and-MUNICIPAL-COUNCIL-COLOMBO-Rspondent.pdf
NAGALINGAM J.—Ferdinandus v. Municipo iCouncil, Colombo 519
1948Present: Nagalingam J.
FERDINANDUS, Appellant, and MUNICIPAL COUNCIL, COLOMBO
Respondent
S. C. 80—C. R. Colombo, 6,618 "
Municipal Councils Ordinance—Act done under provisions of the Ordinance—-Recovery of warrant costs—Prescription—Chapter 103—Sections 138 and 263.
Section 263 of the Municipal Councils Ordinance has no application unlessthe act which gives rise to the cause of action is one which falls within the ex-press ambit of some provision of the Ordinance.
A PPEAL from a judgment of the Commissioner of Requests,Colombo.
M. C. Abeyivardene, for the plaintiff, appellant.
E. B. Wikramanayake, for the defendant, respondent.
Cur. cidv. vvlt.
June 30, 1948. Nagalingam J.—
The dispute between the parties to this case lies within a narrowcompass and the point for determination is, whether the plaintiff’s claimis barred by the provisions of section 263 of the Municipal Councils Ordi-nance. The facts as found by the learned Commissioner are brieflythese : The plaintiff sent a blank cheque to the defendant Council inpayment of the rates due by him in respect of certain premises, authorisingthe Council to fill the cheque for the amount due from him by way of
‘(1937) 39 N. L. R. 175.
520N AG AX. IN G AM J.—Ferdinandua v. Municipal Council, Colombo.
rates thereon. The Council filled uj> the cheque for the amount whichrepresented not only the rates proper but also included a sum of10 per cent, on the rates on account of warrant costs. The plaintiff in thisaction sues for the recovery of the warrant costs which, he alleges, havebeen wrongfully charged to him. The circumstances under which theCouncil claims to have included the 10 per cent, warrant costs arise inthis manner : The letter containing the cheque was posted by the plaintiffon October 30, 1947, and should have normally reached the Council at thelatest by October 31. According to the Council, the cheque lias inpoint of fact been received on November 1. It is common ground thatif the rates had been paid before October 31, no warrant costs could becharged but that if payment was made after October 31, the Councilwould be entitled to levy warrant costs.
The learned Commissionor has found that the Council must be deemedto have received the cheque on or before October 31, and that the Councildid not become entitled to claim warrant costs in consequence. Theplaintiff’s action, however, was dismissed on the ground that the actionhad not been instituted within three months of the date of the accrualof the cause of action as provided by section 263 of the Municipal CouncilsOrdinance. This section prescribes the time limit in regard to an actioninstituted against the Council for anything done or intended to be doneunder the provisions of the Ordinance.
Now, what is the act which was done by the Council which is questionedby the plaintiff ? The plaintiff has asserted the act to be the appro-priation of his funds by the Council by filling in his cheque for an amountlarger than was due from him. The real act that is in question is not theappropriation but the filling up of the cheque, for it is this act that hasenabled the Council to appropriate the funds. Now, the act of fillingup the cheque is not an act done in pursuance of the provisions of theOrdinance. It was an act done or purported to be done by the Councilunder the authority conferred on it by the plaintiff. The plaintiff’sauthority was limited to the filling up of the cheque for the amount ofthe rates and did not extend to filling it up for any other amount, muchless to include any sum by way of warrant costs. This act of the Councilwas one done in excess of the authority conferred on it by the plaintiffand cannot be justified as done under any provision of the Ordinance.Section 263, therefore, has no application. The case of Perera v. Muni-cipal Council, Kandy f supports the construction I have placed on thissection. That was a case where the Municipal Council of Kandy wassued for having taken forcible possession of land, and in delivering thejudgment of the Court, Soertsz J. observed :—
“ Section 231 applies to causes of action accruing from ‘ somethingdone or intended to be done under the provisions of the Ordinance ’.The entering into forcible possession of another’s land cannot be doneor intended to be done with any propriety under the Ordinance ; atleast I hope so.”
On this view of the matter alone, the judgment appealed from must beset aside, but the case has been argued on the footing that the imposi-tion of warrant costs was the act which was done by the Council under the
H1937) 17 C.L.Rec.116.
N AG ALIN QAM J.—Ferdinandua v. Municipal Council, Colombo.521
provisions of the Ordinance. Assuming that this contention is entitledto prevail, the defendant’s position is no better. Council for the res-pondent Council was able to point out to sections 135 and 138 of theOrdinance, as the provisions under which the levy of 10 per cent, was madeby the Council. Section 135 prescribes that where the amount of therate is not paid within the 'time specified by the Chairman, a warrantsigned by the Chairman shall be issued to a collector directing him tolevy such rate and the costs of recovery by seizure and sale of variousclasses of property specified therein, which it is needless to consider forthe purpose of this appeal. Section 138 goes on to specify the costs thatwould be leviable at various stages. It enacts under sub-section (a)thereof that a charge of 10 per centum on the amount of the rates duecould be levied by way of costs on the issue of a warrant.
It has not been suggested that at the time of the receipt of the plaintiff’scheque, even assuming for purposes of argument that the cheque wasreceived by the Council on November 1, 1947, as alleged by it, a warranthad been signed. It cannot therefore be said that at the time that theCouncil filled up the cheque, which it must be deemed to have filled atthe time it received it, any warrant costs became leviable by it becauseno warrant had in point of fact been signed by the Chairman. In thesecircumstances, it is plain to see that the act of the Council in charging theplaintiff with warrant costs cannot be held to have been performed inpursuance of the provisions contained in sections 135 or 138 of the Ordi-nance, which are the only provisions enabling and entitling the Councilto claim the warrant costs. The act of the Council, therefore, claimingwarrant costs must be regarded as an act done outside the provisions of theOrdinance.
It has, however, been contended that although the act may not strictlyhave been performed within the provisions of the Ordinance, the act wasintended to be done in pursuance of the provisions of the Ordinance. Toconstrue the provision in this manner would lead to the result that anact, however irregular and however unwarranted by any provision of theOrdinance, must be regarded as justified, if one is able to point out someprovision of the Ordinance which, though it may not cover the case, may ■remotely be regarded as the foundation for the illegal or improper act -that is called in question. I do not think that this construction can bejustified. If the act does not fall within the express ambit of the section,in my opinion it can neither be regarded as having been performed underthe provisions of the Ordinance nor as an act intended to be performedunder any such provision. If, therefore, the act of the Council claimingwarrant costs is not an act done under the provisions of the Ordinance,then~the act is beyond the pale of the provisions of section 263 and thetime bar has no application.
In the result, the_pjaintiff is entitled to a refund of the sum appropriatedby the Council as warrant costs. I therefore set aside the judgmentappealed from and enter judgment for plaintiff as prayed for with costsboth in this Court and the Court below.
39 – N.L.R. Vo) – xlix
Appeal allowed.