008-NLR-NLR-V-18-SOURJAH-v.-HADJIAR.pdf
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Present: Lasoelles C.J.80UBJAH v. HADJIAB.565—M. 0. Colombo, 3,000.
By-laws framed by the Municipal Coxtnctl— Validity -cannot be questionedif formalities required by 5. 100 of the Municipal Councils Ordinance,1010, had• been observed—Question whether tree is source of danger —Should the Council decide the questim 9—Decision of Chairman.
It is not competent to a Court to entertain the question of thevalidity of a by-law after it had been passed with the formalitiesrequired by section 109 of the Municipal Councils Ordinance of1910.
The question whether a tree or a branch or a fruit 6t a tree is &source of danger may be decided by the Chairman as the executiveofficer of the Council.
A
PPEAL from a judgment of the Municipal Magistrate ofColombo.
J. £. Jayewardene, for the accused, appellant.—The rule in question,No. 47, is ultra virtu; Nuisance is defined in section 3 of the MunicipalCouncils Ordinance (No. 6 of 1910). Section 110 only empowers theCouncil to frame rules for the prevention of nuisances. The by-lawin question does not deal with nuisances. It is therefore ultra vires.Nicholas v. Happawana Terunnanse.}
A special remedy is provided in the rule itself, enabling theChairman to pull down the trees. Therefore, the general provisionas to prosecution does not apply.
The word M Council ” in the rule does not mean Chairman.
The rule itself requires the cutting off of so much as is dangerous.Only nuts and branches are said to be dangerous to neighbours.
F. J. de Saram, for the respondent.—The definition of “ nuisance ”in the Ordinance is wide enough to cover this case, and the rule istherefore not ultra vires.
Even if the rule is ultra vires, objection cannot be taken to it now,as it has been passed by the Legislative Council. See section 109of Ordinance No. 6 of 1910, section 6 of Ordinance No. 8 of 1901.La Brooy v. Marfkar.2
The remedy propounded by rule No. 47..itf not exclusive. Afailure to carry out a lawful requirement of the Chairman is alsopunishable by rule 2, chapter XXV.. of the by-laws.
1 {1827) St N. L. A. 346. .» (1907) 2 A. C. R.
191*.
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Ail executive acts authorized to be done by the Council can beAoitijak v. d°3e by the Chairman (see section 46). In 889—M. C. Colombo,Hadjiar8,080 1 it was held that it was competent to the Chairman to decide
the question whether a tree is dangerous or not.
July 7, 1914. Lascklles C.J.—
Several grounds have been taken in the appeal against theconviction of the accused. The first, which was principally pressed,is that the by-law No. 47' in the chapter is ultra vires. It is anobjection that might, perhaps, have had some force, if the matterhad not been disposed of in principle by a previous decision of thisCourt in La Brooy v. Marikar 2. It was there held that it was notcompetent to a Court to entertain the question of the validity of aby-law after it had been passed with the formalities required bysection 109 of the Municipal Councils Ordinance of 1910. By thatsection it is provided that after the by-laws have been approvedof by the Governor in Executive Council they are as legally valid,effectual, and binding as if they had been enacted in the Ordinance.The decision to which I have referred is based on a judgment of theHouse of Lords in Institute of Patent Agents v. Lockwood. 3 Thefirst point is, therefore, absolutely concluded by authority.
Then it is said that under the by-law it is for the Council, and notthe Chairman, to decide whether a tree or a branch or a fruit of atree is a source of danger. In my opinion, under section 46, thisduty is an executive act which can be performed by the Chairman,and I find that the same view' was taken of the function of theChairman in a previous case decided in this Court, namely, No. 8,080of the Municipal Court of Colombo.
With regard to the sentence, I cannot regard it as excessive.The appeal, in my opinion, fails, and must be dismissed with costs.
Appeal dismissed.
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» S. C. Min., June 17, 1912.* (1907) 2 A. C. H. 63.
3 (1911) 14 N. L. R. .484.