073-NLR-NLR-V-70-G.-B.-DE-SILVA-Applicant-and-E.-L.-SENANAYAKE-and-2-others-Respondents.pdf
320
De Silva v. Senanayake
Present:T. S. Fernando, A.C.J., and Alles, J.G. B. DE SILVA, Applicant, and E. L. SEX AXA YAKE and
others, Respondents
8.C. 185 of 1967—Application for a mandate in the nature of a Writ ofMandamus on the Mayor of Kandy and others
Municipal Council—General meeting for transaction of business—Notice of motiongiven by member—Scope of Mayor's power to refuse to place the motion on theagenda—Remedy of member—Mandamus—By-law 12 (1) (2)—MunicipalCouncils Ordinance {Cap. 252), ss. 17, 19, 20, 40 (1) (r).
1 {1877) 2 Q. B. D. 575 at 578.2 {1959) 1 All E. R. 95.
De Silva v. Senanayake
321
Prior to the date when a statutory monthly general meeting of the MunicipalCouncil of Kandy was due to be held on 30th April 1967, the applicant, whowas a member of the Council, gave notice in writing to the Commissionerthat he would then move the following motion :—
“ In view of the precarious position of its finances, this Council resolvesthat no money should be expended out of the Municipal Fund for holdingcivic receptions, civic lunches, tea parties and dinners except out of the moneyallocated for such expenditure in the budget of 1967. ”
The notice of the motion was given as required by by-law 12 (1) of the Council’sby-laws. By-law 12 (2) reads as follows :—
“ All questions or motions of which notice has been received by the Commis-sioner not less than throe days before a meeting (exclusive of Sundays andpublic holidays) shall, unless the Mayor rules the questions or motions out oforder, be included in the agenda.”
The applicant’s motion was not included in the agenda for the meeting of30th April 1967 for the reason that before the agenda was prepared the Mayor(the 1st respondent) had ruled the motion out of order. On the present appli-cation for mandamus to compel the inclusion of the motion in the agenda, itwas claimed on behalf of the Mayor that he had an absolute power of rulingany motion out of order.
Held, that, inasmuch as the motion was one raising a general question offinancial policy, section 40 (1) (r) of the Municipal Councils Ordinance conferredon the applicant the right to give notice of the motion. Where a member hasa right to give notice of a motion, by-law 12 (2) cannot be construed so as tofrustrate the exercise of the power conferred by the statute itself. By-law 12 (2)does not vest in the Mayor an absolute power or discretion to rule out motions.By making the ruling complained of in the present case, the Mayor failedor refused to perform his statutory duty, and mandamus was the appropriateremedy. The remedy could be granted although the date of the meeting hadalready passed, if the motion could be brought forward at a subsequent meetingof the Council and could still servo some purpose.
Held further, that section 20 of the Municipal Councils Ordinance did notprovide an alternative remedy.
.A. PPLICATION for a writ of mandamus on the Mayor of Kandy.
Felix R. Dias-Bandaranaike, with Nihal Jayawickrama, for theapplicant.
H. W. Jayeuxirdene, Q.C., with N. R. M. Daluivatte and N. S. A.Ooonetilleke, for the respondents.
Cur. adv. vult.
322
T. S. FERNANDO, A.C.J.—De Silva v. Senanayake
November 10, 1967. T. S. Fernando, A.C.J.—
The applicant, a member of the Municipal Council of Kandy elected torepresent Ward No. 11 thereof, seeks a mandate in the nature of awrit of mandamus from this Court to compel the inclusion inthe agenda of the first statutory monthly general meeting of the Councilto be held following the determination of this application of a motionnotice of which had been duly given by him, but which he complainswas unlawfully excluded from the agenda of the general meeting held inApril, 1967.
The respondents to this application (filed within a fortnight of thealleged unlawful exclusion) are : (1) The Mayor, (2) The Municipal Com-missioner, and (3) The Secretary of the said Municipal Council. Theduty of including a motion in the agenda falls in terms of the Council’sby-laws on the Municipal Commissioner, but the mandate is soughtprimarily on the Mayor for reasons which become apparent on an exami-nation of the relevant facts and of the by-laws governing the questionin issue. No relief is sought as against the Commissioner and the Secre-tary who, it has been stated, have been made parties so that they mayhave notice of the application for this mandate. A previous decision ofthis Court, Cooray v. Grero 1, has ruled that in similar circumstancesthe remedy should be sought against the Mayor and not on an executiveofficer of the Council who is bound to carry out the Mayor’s orders.
Section 17 of the Municipal Councils Ordinance (Cap. 252) enacts thatthere shall be twelve general meetings of each Municipal Council in everyyear for the transaction of business. One such meeting of the KandyMunicipal Council was due to be held on April 30, 1967. By-law 12 (1)of the Council’s By-laws—proclaimed in Gazette No. 8,987 of August 14,1942—requires notice of motion to be given in writing, signed by themember giving the notice and addressed to the Commissioner. Notice asrequired by this by-law was duly given by the applicant on April 16, 1967,and the text of his motion is as set out hereunder :—
“ In view of the precarious position of its finances, this Councilresolves that no money should be expended out of the Municipal Fundfor holding civic receptions, civic lunches, tea parties and dinnersexcept out of the money allocated for such expenditure in the budget of1967.”
It would appear from the affidavits that in the 1967 budget of thisCouncil a sum of Rs. 5,000 had been allocated for “ civic receptions ”,and a further sum of Rs. 5,000 as “ entertainment allowance ” of theMayor and to meet the cost of receptions and refreshments at meetings.Before these sums were exhausted, the Council had at the general meetingheld on March 27, 1967 passed a supplementary estimate sanctioningcertain expenditure aggregating some Rs. 6,050, apparently alreadyincurred on account of civic receptions, entertainment and attendanceof the Mayor at a Conference abroad.
1 (1954) 56 N. L. jR. 87 at 90.
323
T. S. FERNANDO, A.C.J.—De. Silva v. Senanayake
The motion set out above of which notice, as already stated, had bee»duly given was not included in the agenda for the meeting of April 30,1967 for the reason that before the agenda was prepared the Mayor hadruled the motion out of order. It is claimed on his behalf that he hadan absolute power of ruling any motion out of order. This claimnecessitates an examination of the source of the alleged power, which issaid to be by-law 12 (2), reproduced below :—
“ 12 (2)—All questions or motions of which notice has been receivedby the Commissioner not less than three days before a meeting(exclusive of Sundays and public holidays) shall, unless the Mayor rulesthe questions or motions out of order, be included in the agenda. ”
The applicant contends that his motion was not one which the Mayor hadpower to rule out of order. I agree with the observation of Swan J. inCooray v. Grero (supra) that, if the motion is one which a councillor had astatutory right to move, there is a duty cast on the Mayor to place sucha motion on the agenda unless it is out of order for the reason stated in>that case which need not concern us here on this application. Som&attempt was made by Sinnetamby J. in the later case of Wijesuriya v.Moonesinghe1 to illustrate what kind of motion may be out of order.Illustrations can, of course, never be exhaustive the circumstances inwhich the question can arise may be legion. He did, however, point outthat even a motion which a councillor ordinarily has a right to move maybe out of order for want of the requisite notice or on account of its beingcouched in improper language or being unintelligible, unlawful or illegal.No reason is advanced here as a justification for ruling the motion outof order save the plea of absolute power or discretion. A court mustsurely be slow to recognise the existence of such a power in an officerelected to head a local body exercising powers affecting the public andfunctioning apparently within a democratic framework.
The applicant points to section 40 (1) (r) of the Municipal CouncilsOrdinance which confers upon the Council for the purpose of the dischargeof its duties thereunder the power to bring forward general questionsconnected with the Municipal Fund. The exercise of this power ofthe Council can normally be invoked only by some one or more of thecouncillors bringing forward the question for discussion in the Council.The motion we are concerned with in this case is one raising a generalquestion of financial policy, and ordinarily no question can be moregermane to a prudent administration of the revenue of the Council whichthe councillors are under an implied duty to foster. There is somesuggetion in the Mayor’s affidavit that the motion has been induced bymalice and with a desire to ventilate private grievances, but one fails tosee any reason for these suggestions in the text of the motion which onits face appears to be entirely proper. We entertain no doubt that anychairman of a meeting has inherent power to prevent a speaker making'use of an occasion which has lawfully presented itself to him to make somnimproper or illegal use of it to give vent to his malice. There was*
1 (1959) 64 N. L. R. 180 cU 183.
■324
T. S, FERNANDO, A.C-.T-—De Silva v. Senanayake
however, no justification for a premature fear which could not fairlyhave arisen from the text of the motion without more. If, as I hold,the applicant had the right to give notice of this motion, then I agreewith the contention on behalf of the applicant that the by-law cannot be•construed so as to frustrate the exercise of the power conferred by the^statute itself. Correctly interpreted, by-law 12 (2) does not, in my opinion,vest in the Mayor an absolute power or discretion to rule out motions.In the instances in which the discretion is available and has been exercised,■even where it may have been exercised erroneously, this Court will notordinarily grant the remedy of mandamus. Subject, however, to theexceptional cases of which some indication has been given in the judgmentof Sinnetamby J. referred to above, I am of opinion that the Mayor hasno discretion to rule out of order motions of which a member has a statu-tory right to give notice. The motion we are concerned with here wasone such, and there was neither power nor ordinarily a discretion to rule. it out of order. By making the ruling complained of in this case the Mayorhas failed or refused to perform his statutory duty, a duty he owed to theapplicant on behalf of the ratepayers of Kandy, and mandamus is theappropriate remedy. It is pertinent to point out that Basnayake C.J. inMohamed v. Gopallawa1, in ordering by way of mandamus that a’certainspecial meeting of a Municipal Council which had been declared closedby its chairman be continued, stated as follows :—
“ In view of the chairman’s wrong decision on the point of order■chat was raised he failed to discharge his duty to give the meeting;an opportunity of deciding whether or not the resolution should beconfirmed. The chairman by an erroneous decision on the point oforder could not disable himself from performing the duty enjoinedby law of transacting the business of the meeting at which hepresided.”
As a reason against the issue of a writ of mandamus in this case, learnedcounsel for the respondents advanced the argument that tho local autho-rity is master of its own house and that this Court will not seek to reviewthe correctness of what is essentially a domestic question. He citedcertain University cases, but it is sufficient to point out that the bodiesthere concerned with were not public bodies in the sense local authoritiesare and that the jurisdiction to compel by mandamus the performanceby local authorities of statutory duties has been exercised in this Countryby this Court for long years.
Another ground advanced for a refusal of the remedy sought is that analternative remedy was available. The contention is that if the applicantwas aggrieved by his motion being ruled out of order in limine he couldhave brought it before the meeting by obtaining the permission of theCouncil as indicated in section 20 of the Ordinance. Counsel for the.applicant referred to the proceedings as indicating that the Mayor whopresided at the meeting of the Council held on April 30, 1967 had refusedvto allow the applicant an opportunity to obtain the permission of the
1 (1956) 58 N. L. R. 418 at 124.
T. S. FERNAKDO, A.C.J.—De Silva v. Senanayake
325
members present at the meeting to move his motion which had beenruled out of order. We did not find it possible to agree with learnedcounsel that the minutes of the proceedings disclosed that such permissionhad been sought. We must therefore decide this application on the basisthat there was no attempt made to invoke the provisions of section 20of the Ordinance. It may be mentioned that De Kretser J. in Goonesinghev. The Mayor of Colombo1 and Swan J. in Cooray v. Grero {supra) haveboth stated that the procedure indicated in sections similar to section 20provides an alternative remedy. Sansoni J. in Seenivasagam v. Kirupa-moorthy 2 and again in Sameraweera v. Balasuriya I * 3, however, did not thinkthat this was a remedy at all because it was conditional on the partyaggrieved obtaining the permission of the Council. Sinnetamby J.,who considered all the previous views in Wijesuriya v. Moonesinghe(supra) preferred to adopt the view taken by Sansoni J. As he put it,“ in respect of a resolution which is not out of order a member has aright, even if the majority of the other members of the council are againstit, to have it discussed at a meeting of the Council, but under rule 2 (&)he cannot even move it unless the majority permit him to do so ”. Thetrue construction of the relevant provisions of the Ordinance appears tobe that while section 19 which requires the Mayor to cause notice of thebusiness to be transacted at every general or special meeting or adjournedmeeting (other than a special meeting convened by the Commissionerunder section 18 (2) ) to be served on each councillor recognises the rightof the individual councillor to have his motions discussed, section 20recognises the right of the Council (which in practice is the majority ofthe councillors) to discuss business even though not specified in theagenda. I agree with the contention of learned counsel for the applicantthat where a councillor has a statutory right to bring forward a questionfor discussion, he has a duty to give valid notice of it in the form of amotion, and that once that notice has been so given the Mayor is under aduty to have it inscribed on the agenda. When a motion has been thusinscribed on the agenda, the Council has no right to stop a discussion. Itis therefore apparent that section 20 does not provide an alternativeremedy. In these circumstances it is unnecessary to consider whether,even if there was an alternative remedy, such remedy was “ equallyconvenient, beneficial or effectual ”. Nor should one fail to take note ofcurrent practice in two-party assemblies where the chances of obtainingthe permission of the majority to bring up for discussion a motion alreadyruled out by the Mayor before notice of meeting had been served cannotordinarily survive beyond the realms of theoretical possibility.
I would for the reasons outlined above grant the remedy prayed for bythe applicant. As Swan J. said in Cooray v. Grero (supra), a writ ofmandamus, if available, could be issued although the date of the meetinghas already passed. We were informed that a monthly meeting of thisCouncil is due to be held towards the end of this month, and as the budgetyear has not yet ended, the motion could still serve some purpose. It
1 (1944) 46 N. L. R. 85.* (1954) 56 N. L. R. 450 at 454.
3(1955) 58 N. L. R. 118 at 120.
326 ABEYESUNEERE, J.—Commissioner of Inland Revenue v. De Fonseka
is well to remember that the democratic tradition is better ensured by notdenying to the minority the opportunity of ventilating grievances whichthe majority may regard as but fancied. Argument is still a potentmedium capable of converting honest sceptics.
Let, therefore, a mandate in the nature of a writ of mandamus issueforthwith directing the 1st respondent to include the motion in questionon the agenda of the first statutory general meeting of the MunicipalCouncil of Kandy to be held following the date of this judgment. The1st respondent must pay to the applicant his costs of this application.
Axles, J.—I agree.
Application allowed.