023-NLR-NLR-V-41-DE-SILVA-v.-SCHOKMAN.pdf
de Silva v. Schokmatt.
97
1939Present: Hearne J.
DE SILVA v. SCHOKMAN.In re Application for a Writ of Mandamus on the Mayor of
Colombo.
Municipal Council of Colombo—Consideration of special committee’s report atCouncil’s meeting—Report placed on the Order of the Day—Right ofMayor to prevent discussion—Writ of Mandamus.
Where the respondent, the Mayor of the Municipal Council of Colombo,who was presiding over a meeting of the Council, refused to allow themembers of the Council to discuss the report of a special committee ofthe Council, appointed under section 11 of tKe Municipal Councils Ordi-nance, which was listed in the “ Orders of the Day ” for considerationby! the Council.—
Held, that the respondent had no right to prevent discussion of a matterthat was properly before the meeting.
T
HIS was an application for a Writ of Mandamus on the respondent,the Mayor of Colombo.
H. V. Perera, K.C, (with him Colvin R. de Silva and S. Alles), for thepetitioner.—Under section 11 of Cap. 194, the ultimate destination of areport of a special committee is the Council. The respondent actedwrongly in rejecting the report and refusing to place it before the Councilfor consideration.
The main point for consideration is whether, in law, the Chairman hadany discretion vested in him in preventing the report to be discussed. Ifhe had any discretion, whether he exercised it righly, or wrongly, thepresent application would fail. The position, however, is that theChairman had no option in the matter at all. Section 11 (2) of Cap. 194shows the purpose for which the report of the special committee is referredto the Council, namely, so that it may be finally considered by the Council.The provisions of section 11 (2) are further elaborated by by-law 31(Chapter 2) and by-law 3 (Chapter 3). The report of the committee is tobe considered by the Council and not to be judged by anybody else butthe Council.
(Hearne J.—Suppose the matter contained in the report is defamatoryand irrelevant?]
The Chairman’s first duty is to the Council. If there is anythingdefamatory, the public can be excluded under by-law 2 (Chapter 2).Further, a member would utter a defamatory statement at his own risk.
(Hearne J.—Has the Chairman no control over the debate?]
He has, but the act in question was not one of controlling any business;It was a way of preventing business being done.
The Chairman always derives his authority from the assembly. Thereport has to be considered by the Council. Until the Council considersit, the special committee continues to live (section 11). So far as thereport is concerned, the Chairman is only a channel of communication,
<iJ. N. B 17627 (5/52)
98
de Silva v. Schokman.
and he has to submit the report to the Council. In the course of the reportfrom the special committee to the Council, the Chairman’s function ispurely of a ministerial nature—The King v. Bishop of SarumS
N. E. W eerasooria, K.C. (with him E. B. Wikremanayake and V. F.Gunaratne), for the respondent.—The Mayor was under no legal duty todo what is asked for in the present application, namely, to direct theChairman to place the report before the Council.
By-law 31 (Chapter 2) dealing with the conduct of business was repealedby Gazette No. 8,401 of October 7, 1938, and replaced by a section whichdeals not with special committees but with standing committees. Stand-ing committees are referred to in section 10 of Cap. 194.
There is no specific statutory provision under which there is a dutycast .on the Mayor or Chairman to place a report before the Council.Section 11 of Cap. 194 is too vague to read into it any special duty whichthe petitioner alleges has not been done. A statutory duty must beexpressed in clear and specific terms—Short on Mandamus, pp. 229, 231.
One has to consider the position of the Mayor. His real designationappears in section 60 of Cap. 194. Sections 7 and 8 deal with the conductof business at a meeting of the Council. Under the present Ordinancethere is no such person as “ Chairman of the Municipal Council ”. Bysection 5 (3) the office of the original Chairman is now divided betweenthe Mayor and the Commissioner. Section 8 empowers the Mayor topreside and the subsequent sections provide as to who should preside ifthe Mayor is absent. Consequently, when the Council meets, one cannotsay who will be the Chairman. The persons who presides has nothing todo with the submission of a report to the Council. One cannot ask for aWrit, of Mandamus on a person who happens to sit as chairman at ameeting.
In regard to the report itself, it has gone completely outside the termsof reference and purported to condemn certain officers whose conductwas not under inquiry. As Chairman of the meeting, the respondentwas entitled so to control the proceedings as to rule the report out; thereis no restriction with regard to the control of the proceedings.
Assuming mandamus lies, the present petitioner cannot move alonefor it. There is nothing to show that the majority of the Council is ofthe opinion that the report in question should have been considered. Ifthe breach complained of is the breach of a duty to a body, a singlemember of the body cannot apply for a writ.
H. V. Perera, K.C., in reply.—The Mayor is ex officio Chairman of themeeting—section 8. Chairman’s duties can be enforced by the remedyof mandamus—Blackwell on Public and Company Meetings (8th ed.), p. 41.As regards the duties of a Chairman at meetings, see Taylor v. Nesfieldidiscussed in Crewe on Procedure at Meetings (15th ed.), pp. 19 et seq.
There need not be an express statutory duty. A duty may be derivedfrom the fact that a person holds a certain office. The Queen v. TheOverseers of Christchurch, Middlesex
* (1916) 1 K. B. 466.
*(1857) 7 El <£• B. 409.
HEARNE J.—de Silva v. Schokman.
99
Each member has the right to participate at a meeting. An individualwho is a member of a group can apply for mandamus—Application for aWrit of Mandamus on the Government Agent, Northern Province *; TheQueen v. StewartThe King v. Manchester Corporation*.
Cur. adv. vuIt
December 20, 1939. Hearne J.—
This is an application for a writ of mandamus on Dr. V. R. Schokmandirecting him to place for consideration by the Municipal Council ofColombo the report of a special committee appointed under section 11 ofthe Colombo Municipal Council Ordinance to inquire into “ the circum-stances which led to the transfer of the Municipal Workshop Foreman ”.The respondent was described in the caption as the Mayor of Colomboand Chairman of the Municipal Council but it appears from an examinationof the relevant Ordinance that this is a misdescription. He is the Mayorof the Municipal Council and as such is entitled, subject to the provisionsof sections 60 and 61, to preside over all meetings of the Council at whichhe is present.
The report of the special committee was set down for consideration at ameeting of the Council on November 1, 1939, and when that item of theagenda was reached the respondent stated that he had decided to rejectthe report as it was not in conformity with the terms of reference. Aftercertain members had expressed their views he made it clear that herefused to allow it to be discussed.
The signatories of the majority report purported to deal with thecircumstances which preceded the transfer of the Workshop Foremanbut they went much further. They dealt with the conduct of certainofficers concerned in the transfer and also with their “ unsuitability ”for their respective posts. Further, adverse comment was made on thequalifications of another officer who does not appear to have had anythingto do with the subject-matter of the inquiry (paragraph 14).
In the argument before this Court it was, no doubt correctly, assumedthat the respondent did not seek to exercise powers he knew he did notpossess but that, on the contrary, he thought he was entitled, by reason ofthe extraneous matter in the report, to forbid any discussion of it. It isclear that the legal advice he has since taken has confirmed him in thisview.
In my opinion, however, he has been wrongly advised. As Chairmanhe undoubtedly had control over the conduct of business at the meetingand to his ruling on points of procedure members would be bound to bow.But he had no right to prevent discussion of a matter that was properlybefore the meeting. On the contrary it was his duty to see that due andsufficient opportunity to express their views on any such matter was givento those who wished to do so.
1 (1927) 28 A L. R. 323.* (1898) 1 Q. B. D. 552.
3 (1911) 1 K. B. 580.
100
HE ARNE J.—de Silva v. Schokman.
The report of the special committee was properly before the meeting.
It had been authorized by and made to the Council, it had been listed inthe “ Orders of the Day ” for discussion by the Council, and it was notwithin the authority of the respondent to deprive the Council of theright to consider it. If the report went beyond the terms of reference itwould be for the Council to decide upon the steps it would be advisableto take. If in the course of a discussion on the report it was considereddesirable to do so, the provisions of by-law 2 (Cap. 2) relative to theexclusion of strangers could be invoked. But all these are matterswithin the competence of the Council and not an individual memberof it.
In his affidavit the respondent said that “ in the exercise of thediscretion I had as Chairman of the meeting …. I did not permitthe report to be discussed ”. The fact is that he had no discretion. Itis not vested in him by the Colombo Municipal Council Ordinance and hisCounsel could not say whence he had derived it. Apart from statute hecould only have derived it from the meeting itself. “ Public meetings ” asJervis C.J. said in Taylor v. Nesfield (supra) “ must be regulated somehow;and where a number of persons assemble and put a man in the chair theydevolve on him, by agreement, the conduct of that body. They attornto him, as it were, and give him the whole power of regulating themselvesindividually. This is within reasonable bounds. The Chairman collects,as it were, his authority from the meeting ”. The meeting of theMunicipal Council certainly did not vest in the Chairman the right todecide which items of the agenda should and which should not be taken up.So far from doing so, those who spoke protested against the assumptionof any such right.
Counsel for the respondent argued that there was nothing to show thatthe action taken by the applicant meets with the approval of a majorityof the Council and that, therefore, the writ must be refused. I know ofno authority for this proposition.
It is suggested by the respondent that the application is not bona fide,that the applicant is a candidate for the office of Mayor in 1940, and thatthe object of the application is to throw doubt on the propriety of therespondent’s conduct as Mayor. I would stress that no suggestion hasbeen made that he acted with any improper motive. On the other handit would, I think, be generally conceded that had the special committeenot taken such a liberal view of the task entrusted to them, the respondentin the ordinary way would have submitted their report for discussion. It• is not the propriety but the legality of his conduct that is at issue. Theapplicant in his counter affidavit states that his application was madebona fide. He also says that the respondent is mistaken in thinking thathe is a candidate for the office of Mayor. This must be taken to beconclusive of the matter.
The rule will be made absolute with costs.
Rule made absolute.