M. H. MOHAMED, Petitioner, and (1) W. GOPALLAWA, (2) DR. N. M. PERERA , Respond

100-NLR-NLR-V-58-M.-H.-MOHAMED-Petitioner-and-1-W.-GOPALLAWA-2-DR.-N.-M.-PERERA-Respond.pdf

1956Present : Basnayake, C. J., and Pulle, J.
M.H. MOHAMED, Petitioner, and (1) W. GOPALDAWA,(2) DR. N. M. PEEERA, Respondents
S. C. 531—In the Matter of an Application for a Writ of Mandamuson William Gofallawa, Commissioner of the ColomboMunicipal Council, under Section 42 of the Courts Ordinance(Chap. 0).
Municipal Council—Summoning of meetings which are to be presided, oc-cr by theCommissioner-—Procedure—Municipal Councils Ordinance, 27 o. 29 of 10-17,as amended by Act iVo. 7 of 1951, ss. 19 (2) (a) (b) (<■-), 20 (2), 21—Mandamus.
■ Where a second Special Meeting of a Municipal Council is summoned by theCommissioner in terms of sections 10 (2) (b) and 20 (2) of the Municipal CouncilsOrdinance to consider whether or not a resolution which was passed at a pre-vious Special Meeting should be confirmed, there is no obligation in law to set-out the specific motion which is to be moved at the second meeting, providedthat- it is clear from the notice convening the meeting that the members arerequired to attend a meeting at which the matter for consideration is ■whetheror not tho resolution referred to in the notice should be confirmed. If thenotico convening the meeting satisfies the requirements of scetio.u 20 (2). thoCommissioner is, by virtue of section 19 (2) [c), under a duty to permit thomeeting to transact tho business for which it has been convened.
^VpPLIGATIOX for a writ of mandamus on tiie Commissioner of theColombo Municipal Council.
H. V. Perera, Q. G. with H. 11''. Jayawardene, Q.C., Edmund Coorayand Izadccn Mohamed, for petitioner.
S. Nadesan, Q.C., with Waller Jayaicardena and T. Senat hi rajah,for first respondent.
Colvin P. de Silva, with Walter Jayaicardena and A. B. Perera, forsecond respondent.-.
Cur. ado. vail.
February S, 195G. BaSxayake, C.J.—
The petitioner is a member of the Municipal Council of Colombo.The first respondent is the Commissioner and the second respondentis the Mayor of that Council. The petitioner asks for a mandate in the -nature of a writ of mandamus directing the first respondent—
(n) to continue the Special Meeting which commenced at 2.30 p.m.on Monday the 17th of October, 1955, till the business,notice of which he had given, is transacted and concluded ;and
(b) for the said purpose to summon all the Councillors to re-assembleon a date and at a time to be fixed by this Court bj' givingto each Councillor such notice as this Court might direct.
No relief is claimed against the second respondent.
The material facts relating to the application arc as follows :—
On 23rd September, 1955, a requisition to convene a Special Meetingof the Municipal Council under section 19 (2) (a) of the Muncipal CouncilsOrdinance, No. 29 of 1947, as amended by Act ATo. 7 of 1954, (herein-after referred to as the Ordinance), was made to the first respondentin writing signed by sixteen Councillors. That requisition was asfollows :—
“ In terms of Section 19 (2) (a) of the Municipal Councils OrdinanceNo. 29 of 1947 as amended by the Municipal Councils (Amendment)
Act No. 7 of 1954, We the undersigned sixteen members of the ColomboMunicipal Council do hereby request you to convene a special meetingof the Colombo Municipal Council to consider the resolution hereinbelow set out for the removal of Dr. N. M. Percra from the office ofMayor of the said Municipal Council.
The resolution above referred to :—
“ This council resolves tlrat Dr. N. M. Percra be removed fromthe office of Mayor ■ of the Colombo Municipal Council in terms ofSection 19 (2) (a), 19 (2) (5), and Section 15 (2), of the Municipal CouncilsOrdinance No. 29 of 1947 as amended by Municipal Councils(Amendment) Act No. 7 of 1954.
Proposer : Mr. M. IT. Mohamcd,Member for Maligawatte ”.
On tire same date the petitioner addressed a letter to the MunicipalCommissioner in the following terms :—_
“With reference to the requisition signed by me and fifteen othermembers of the Council and delivered to you this day requesting youto convene a Special Meeting of the Council to consider a resolutionfor the removal of Dr. N. M. Percra from the office of Mayor of theColombo Municipal Council,
I do hereby give you notice that the resolution in the said requisitionfully set out which is in the following terms, to wit,
“ This council resolves that Dr. N. jST. Perera be removed from theoffice of the Mayor of the Colombo Municipal Council, in terms ofSection 19 (2) (a), 19 (2) (6), and Section 15 (2) of the MunicipalCouncils Ordinance No. 29 of 1947 as amended by Municipal Councils(Amendment) Act No. 7 of 1954,
will be moved by me at the said Special Meeting. ■’
A Special Meeting was summoned for 1st October, 1955, by the firstrespondent in pursuance of the requisition, and notice of that meeting,dated the 24th of September, 1955, was sent by him to each of themembers in the following terms :
“ Whereas a requisition for a Special Meeting of the Council in termsof Section 19 of the Municipal Councils Ordinance No. 29 of 1947,a-s amended by Municipal Councils (Amendment) Act No. 7 of 1954,has been made to. me, I, W. Gopallawa, Municipal Commissioner-,Colombo, in terms of the provisions of Section 20 of Ordinance No. 29of 1947, as amended by the Municipal Councils (Amendment) ActNo. 7 of 1954, do hereby summon you to a Special Meeting of theCouncil to he held at 9.30 a.m. on Saturday the 1st October, 1955,at the Town Hall, Colombo, to consider the following motion :—
Mr.'M. H. Mohamed, Member for Maligawatte, to move :—
“ This Council resolves that Dr. N. M. Perera be removed fromthe office of the Mayor of the Colombo Municipal Council, in terms ofSection 19 (2) (a), 19 (2) (6), and Section 15 (2) of tire MunicipalCouncils Ordinance No. 29 of 1947 as amended by Municipal Councils(Amendment) Act No. 7 of 1954 ”.
At the meeting held on 1st October, 1955, the resolution that Dr.
N.M. Perera be removed from the office of Mayor of the ColomboMunicipal Council was passed by the requisite majority and the firstrespondent proceeded in terms of section 19 (2) (b) to summon a meeting(hereinafter referred to as the second meeting) to consider whether ornot that resolution should be confirmed. The notice of that meetingdated the 5th of October, 1955, was as follows :—
“ Whereas the Municipal Council of Colombo at its Special Meetingheld on 1st October, 1955, in terms of the ]>rovisions of Section 19 ofOrdinance No. 29 of 1947, as amended by the Municipal Councils(Amendment) Act No. 7 of 1954, has passed the following resolutionby not less than one half of the .total number of Councillors :—
” This Council resolves that Dr. N. M. Perera be removed fromthe office of tho-Mayor of the Colombo Municipal Council, in termsof Section 19 (2) (a), 19 (2) (6), and Section 15 (2) of tho MunicipalCouncils . Ordinance No. 29 of 1947 as amended by MunicipalCouncils (Amendment) Act No. 7 of 1954 ”.
W. Gopallawa, Municipa* Commissioner, Colombo, in terms ofSection 19 of the Municipal Councils Ordinanco No. 29 of 1947, asamended by the Municipal Councils (Amendment) Act No. 7 of 1954.
do hereby summon you to another Special Sleeting of the Councilto bo held at 2.30.p.in. on Monday tho 17th October, 1955, at theTown Hall, Colombo, to consider whether or not that resolution shouldbo confirmed. ”■
On the date of the second meeting, the first respondent 2>residcd asrequired by section 19 (2) (c) of the Ordinance. At the commencementof tho meeting he called upon the Secretary to read the notice conveningthe meeting. After it was read tho first resi>ondent addressed thoassembled members thus
“ Gentlemen, now you will consider whether or not that resolutionshould be confirmed ”.
Then a member, Dr. W. D. de Silva, rose to a point of order that themeeting was irregular as only 16 had voted for the resolution for theremoval of the Mayor. He contended that unless 17 members votedfor the resolution the requirements of section 15 (2) would not be satisfied.The first respondent overruled the point of order.
The petitioner states in his affidavit that immediately after this rulinghe rose from his seat to move the confirmation of the resolution passedat- the previous Special Meeting “ to remove the second respondentfrom the said office of Mayor ”. The second respondent interrupted thepetitioner with these words :—
I do not know why the lion, member for Maligawatte has risen-But I want to ask one or two questions. I presume, Mr. Commissioner,what was just now read out by tho Secretary of the Council is theagenda for this day.
Comniissioner : That is so.
Dr. N. JI. Perera : May I have that recorded, Sir, because that isvery imjjortant.
Commissioner : Yes.
Dr. N. JI. Perera : The second point, Sir, is, may I know whetherany notice of a motion has been given ?
Commissioner : No notice has been given. This is the notice.
Dr. N. JI. Perera : I would like that also recorded.
. I want to rise to a point of order and I would like your patientconsideration because, if I may say so without any attempt toprejudice your mind, this is a matter over which I have had occasionto consult legal opinion, and I am submitting my point of order onthat basis
The second respondent then proceeded to elaborate his point of orderand the first respondent ruled as follows :—'.'
'“ Dr. N. M. Perera rises to a point of order that there is no resolution
before the House whether or not the following resolution passed on1st October 1955, be confirmed
.“ This Council resolves that Dr. K. M. Pe-rera be removed from
. the office of the Mayor of the Colombo Municipal Council, in termsof Section 19 (2) (a), 19 (2) (b), and Section 15 (2) of the MunicipalCouncils Ordinance Ko. 29 of 1947 as amended by MunicipalCouncils (Amendment) Act Xo. 7 of 195-4
In the absence of any notice of such a resolution it is not opento any Councillor at this meeting to move that the resolution passedat that meeting be confirmed or rejected.
Section 3 (2) of Act 7 of 1954, requires that a resolution for theremoval of a Mayor or a Deputy Mayor from office be passed bynot less than one-half the total number of Councillors and it boconfirmed by a resolution similarly passed at another special meetingof the Council convened under paragraph (b) of that sub-section.That Sectic n contemplates two resolutions : the first resolution asrequired by section 19 has been passed ; there is no notice of asimilar resolution before the House. In the abseiice of such aresolution I uphold Dr. Perera’s point of order
I declare the meeting closed ”.
Learned Counsel for the petitioner submitted that once the resolutionfor the removal of the Mayor was passed the first respondent was boundby law to convene the second meeting within the time prescribed insection 19 (2) (b) and cause notice of that meeting and of the businessto be transacted thereat to be served in terms of section 20 (2) of theOrdinance. He further submitted that the first respondent havingcomplied with the requirements of both those provisions was under alegal obligation to permit the meeting which ho convened to transactits business.
Learned Counsel for the respondents, while conceding that the firstrespondent had complied with the requirements of sections 19 (2) (6)and 20 (2) to the extent only of convening a meeting, contended thatthe notice does not set out the business to be transacted thereat. Counselfurther submitted that the statement in the notice that the meetingwas summoned for the purpose of considering whether or not theresolution passed at the earlier meeting should be confirmed was not anotice of the business to bo transacted thereat. They argued that thenotice served under section 20 (2) should set out the specific motion tobo moved at the second meeting and that unless that were done therewould be no notice of the business to be transacted at the meeting.
Counsel further contended that, as no notice of the business to betransacted at the meeting had been given, the petitioner was. precludedby section 21 of the Ordinance from bringing uj) any business at thatmeeting without the permission of the Council. Counsel also argued thatto enable the first respondent- to specify in the notice the business to betransacted at the second meeting the petitioner should have, in termsof by-law 10 of the Council’s by-laws regulating meetings, given, to theSecretary of the Council, notice of the motion lie proposed to move.As the petitioner failed to comply with that by-law, the first respondent
had no alternative but to serve the notice in the form in. which it has beenrriven. To this argument Counsel for the petitioner replied that thefirst respondent’s notice si^ecified the business that was to be transactedat.the meeting, and that therefore there was no need to ask for thepermission of the Council under section 21 of the Ordinance. In supportof his argument he referred 11s to the practice and procedure in regardto the notice of meetings of shareholders of companies and of the Bankof Ceylon'.
The only question for decision is whether the notice hi the instantease set out the business to be transacted at the second meeting asrequired by section 20 (2) of the Ordinance.
In our opinion sections 15 (2), 19 (2), and 20 (2) of the Ordinancecontain the entire machinery for the summoning of meetings which areto be presided over by the Commissioner.
Bj'-law 10 which governs meetings of the Council convened undersections 19 (1) and 20 (1), and which arc presided over by the Maj'or,is a by-law made under a repealed Ordinance. It is continued in forceby section 3IS of the present Ordinance and is not designed for the casoof Special Meetings presided over by the Commissioner.
There was therefore no obligation in law on the petitioner to givenotice of the motion he proposed to move at the meeting convenedunder section 19 (2) (6) to consider whether the resolution for the removalof the Maj-ov should be confirmed or not.
It is clear from the notice convening the meeting that the memberswere required to attend a meeting at which the matter for considerationwas whether or not the resolution referred to in the noticeshould be confirmed. In our opinion the notice of the meeting specificsthe business to bo transacted thereat and satisfies in every way therequirements of section 20 (2). The business of the second meeting isindicated in section 19 (2) (b) and that was communicated to the membersin the notice convening the meeting.
If the notice satisfies the requirements of section 20 (2) was thepetitioner entitled in law to move at the second meeting a motion to theeffect that the resolution passed at the previous meeting for the removalof the Mayor be confirmed ? TVe think he undoubtedly was.
It is reasonable, to infer that when the legislature clothed the Com-missioner with the powers vested in him by sections 19 (2) atul 20 (2)it impliedly granted him all such powers as are necessary for the properand effectual execution of the powers expressly granted to him. Inthe exercise of those powers the Commissioner was free to regulate themeetings convened by him in accordance with the accepted rules ofjn-ocedure at such meetings. –
Learned Counsel for the second respondent also urged that the firstrespondent had performed the statutory 'duties imposed on him bysections 19 (2) (6) and 20 (2) of the Municipal Councils Ordinance andthat a mandamus did not lie. He has undoubtedly discharged hisfunctions under section 19 (2) (b) and 20 (2) ; but as presiding officer
■ by virtue of section 19 (2) (c) lie was under a duty to permit the meetingto transact the business for which it was convened. In view of his wrongdecision on the point of order that was raised by the second respondenthe failed to discharge his duty to give the meeting an opportunity, ofdeciding whether or not the resolution passed by the Municipal Councilon 1st October 1955 should be confirmed. The first respondent by anerroneous decision on the point of order raised by the second respondentGould not disable himself from performing the duty enjoined by law of .transacting the business of the meeting at which lie presided.
In our opinion the petitioner is entitled to the mandate he seeks-We accordingly direct the Commissioner to continue the Special Meetingwhich commenced at 2.30 p.m. on Monday, 17tJi October 1955, till thebusiness notice of which he lias given is transacted and concluded, andfor that purpose to summon all Councillors to rc-assemblc on a dateand time to be notified by him by giving the Councillors at least fourdays, notice before the meeting. We also direct that the date so notifiedby him for the continuation of the meeting of Monday, 17th October1955, shall be a date not later than fourteen days from the date on whichthis order is served on him by the Fiscal.
The petitioner is entitled to the costs of this application as againstthe first respondent.
Pcrr.CE, J.—I agree..
Application allowed.