060-NLR-NLR-V-48-JAMES-PERERA-Petitioner-and-GODWIN-PERERA-Respondent.pdf
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N AG ALIN GAM AJ.—James Perera v. Godwin Perera.
1946Present: Nagalingam A.J.
JAMES PERERA, Petitioner and GODWIN PERERa, Respondent.
Application for a writ of mandamus on the Chairman, VillageCommittee, of Godakaha Palata.
Writ of mandamus—Necessary party not made respondent to application forwrit—Fatal irregularity.
Where an application was made for a writ of mandamus to compel alocal authority to issue a bakery licence in favour of the petitioner incircumstances prejudicial to the rights of the person who was alreadyholding the licence—
Held, that the failure to make the holder of the licence a partyrespondent was a fatal irregularity.
A
PPLICATION for a writ of mandamus on the Chairman of theVillage Committee of Godakaha Palata.
E. B. Wikramanayake (with him E. O. F. de Silva), for the petitioner.
H. W. J aye war dene, for the respondent.
November 25, 1946. Nagalingam A.J.—
This is an application for a writ of mandamus on the Chairman of theVillage Committee of Godakaha Palata for the issue of a bakery licencein favour of the petitioner for the year 1946. The application itself isquite belated, the application having been filed in this court only onAugust 12, 1946. It is said that the petitioner made attempts to get
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relief by applying to other authorities. In this he was misguided andhad misconceived the proper procedure to be followed in seeking hisremedy. But be that as it may, Counsel for the respondent takes theobjection that a necessary party has not been made a respondent to the peti-tioner’s application. The petitioner avers in his petition that the Chair-man failed to issue the licence to him but issued it to one Jayasinghe.The licence is both personal and local, that is to say a particular personis granted a licence to carry on business as a baker at a particular premisesand by by-law 2 of the By-laws made severally by the Village Committeesof the Village areas of the Colombo District including the Village Com-mittee of Godakaha Palata it is expressly provided that no person shallbe entitled to a licence unless the building to be used as a bakery is inconformity with certain requirements, clearly indicating that unlessand until the premises at which the business is to be carried on is identifiedand approved by the authority as suitable for the business no licencecan be claimed by any individual. It is common ground that in thiscase the petitioner had been carrying on the business of a baker for anumber of years at certain premises belonging to one Jayasinghe. Towardsthe end of last year, after the petitioner had made his application for therenewal of his licence in respect of the premises, Jayasinghe would appearto have made an application himself in respect of the same premises.The Chairman, depending upon a certain settlement arrived at betweenthe petitioner and Jayasinghe, appears to have issued the licence infavour of the petitioner till March this year and granted the licence toJayasinghe from April 1. Counsel for the respondent points out thatin these circumstances the issue of a writ would affect prejudicially therights of Jayasinghe who is not before the Court.
I find that in two earlier cases a similar objection was sustained.In the case of Carron v. The Government Agent, Western Province1Wijeyewardene J. expressed himself as follows :—“ The petitioner wantsto have the election declared void but has failed to make Mr. Jaya-singhe a party respondent. The petitioner’s counsel did not at anystage move to have him added as a party. The application must failon that ground also ”. In the case of Goonetilleke v. The GovernmentAgent, Galle * Keuneman J. followed this authority in like circumstances.
Counsel for the petitioner contends that that principle should belimited to election cases and should not be extended to cases wherean application is made to compel the issue of a trade licence by a localauthority. If the principle underlying election cases is that where an■order would affect adversely a party who is not before the Court thatparty must be deemed to be a necessary party and consequently thefailure to make the necessary party a respondent to the proceedingsmust be regarded fatal to the application, it must apply equally evenin regard to an application for a licence as applied for in these presentproceedings.
It would manifestly be unsatisfactory to have two persons licensedto run the business of a baker at one and the same place of businesswhere the two parties are at arm’s length. The issue of a licence to the
1 (1945) 46 N. L. R. 237.* (1946) 47 N. L. R. 549.
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N AG ALIN GAM A.J.—James Perera v. Godwin Perera.
petitioner must necessarily involve the cancellation of the licence issuedin favour of Jayasinghe. I am therefore of the view that the objectionis sound and that the failure to make Jayasinghe a party respondentmust be held to be a fatal irregularity.
Mr. Wikramanayake applies to be permitted even at this stage, onpayment of costs, to make Jayasinghe a party respondent. As I havealready indicated, the application itself was made very late and toaccede to this application now when practically the year is dying outwould serve little purpose and does not commend itself to me. In thesecircumstances I refuse the application to add Jayasinghe as a party.
The application fails and is dismissed with costs.
Application dismissed.