035-NLR-NLR-V-58-SAMARAWEERA-Petitioner-and-BALASURIYA-Respondent.pdf
19552yresent: Sansoni, J.
SAMARA WEERA, Petitioner, and BARAStJRIYA, Respondent
S. C. 39S—Application for a Writ of 3Iandamus on the Chairman of theUrban Council, Mcitara
Urban Councils Ordinance, -Vo. Cl of 1930—Special meeting of Council—Duly ofChairman to convene one—Sections 3S (2) and ICG—By-laws—Mandamus—Effect thereon of alternative remedy.
A writ of mandamus lies against tlio Chairman of an Urban Council if he refusesto convene a special meeting of the Council when required to do so under section3S (2) of the Urban Councils Ordinance. In view of the provisions of section 1 C6,a Kulo in terms of Bulo 9 (c) of the By-laws of the Urban Council of Mataramust give way to section 3S (2).
An alternative remedy provided by a by-law but. which is not as convenient,benefieiaj and effectual as mandamus cannot- operate as a bar to tlio applicationfor mandamus.
A PPLI CAT I OX for a writ of mandamus.
N.Kadarasa, with S. Sharvananda, for the petitioner.
Sir Uhwalle Jayasundcra-, Q.C., with G. T. Samerawichreme, for therespondent.
Cur. adv. valt.
April 6, 1955. Sansoni, J.—
This is an application for a Writ of Mandamus made by a member ofthe Urban Council, Matara, against the Chairman of that Council. Thepetitioner and live other members of the Council requested the respondentChairman, by their letter dated 23th July, 1954 to convene a specialmeeting of the Council forthwith for the purpose of debating sevenresolutions in the following terms :—
That the Chairman U. C. Matara, be surcharged the amount of
salaries and allowances paid to all employees appointed by himto the Council without the previous sanction of the Council orwhose appointments have not been subsequently confirmed by it.
This Council calls upon the Auditor-General to send immediately
a special officer to investigate-cases of unauthorised expenditureand payments made by the Chairman U. C. Matara.
That the power of appointment of all necessary officers and servants
permanent or temporary and of their removal or suspension, beexercised by this Council (and not by the Chairman alone) in allcases where the salary or wages of any such employee does notexceed Rs. 100.
That on the ground of economy, the appointment of G. P.
If. Arthur, of Totamune be forthwith cancelled and his dutiesdelegated to tiie former occupant of the post, in addition to theduties now discharged by this former occupant.
That work relating to the maintenance and repair of roads nowbeing done in only ward Xo. 9, be forthwith stopped and workin all wards be carried out in conformity with a list of prioritiesdecided on by the Council.
(G) This Council resolves to rescind resolutions Xo. 26 (2) passedon 23.1.1954, leaving the matter of the issue of licences fortemporary picture-halls and carnivals to the Chairman U. C.
This Council resolves to rescind resolution Xo. 22 passed on5.4.1954 adding the words " and to authorise the necessaryexpenditure ” to items (d) and (e) of resolution Xo. 25 of23.1.1954.
By his letter dated 29th Julj- 1954 the respondent acknowledgedreceipt of the letter and informed the petitioner that the ResolutionsXos. 1, 2, 3, 4, 6, and 7 were disallowed while Resolution 5 would be sub-mitted for debate at a meeting to be held on 2nd August 1954 at 3.30 p.m.Apparently such a meeting was held on the appointed date but theseresolutions which had been disallowed were not placed on the agenda andthis application has been made in order that the respondent may bedirected to convene a meeting for the purpose of discussing thoseresolutions.■
The respondent has justified his action by relj ing on Rule 9 (c) of theBy-Laws of the Council which reads :—
“ Before any notice of motion is placed on the agenda paper, it shallbe submitted to the Chairman, who, if he be of ox>inion that it is out oforder, shall cause the giver of the notice to be so informed. ”
Re pleads that his decision was made bona fide and in the discharge ofa statutory duty devolving on him as Chairman. He also relies on Rule (1)
(d) of the By-Laws which reads :—
Xo business shall be brought before or transacted at any meetingordinary or special, other than the business specified in the notices ofmeetings without the permission of the Council.
His position is that the petitioner could have moved the resolutions at thespecial meeting with the permission of the Council.
Mr. Xadarasa for the petitioner referred to the peremptory wordingof Section 3S (2) of the Urban Councils Ordinance Xo. 61 of 1939 which,as amended, reads
“ The Chairman may convene a special meeting of the Council when-ever he may consider it desirable and shall, whenever requested in writingby any two or more members of the Council to convene a special meetingfor any purpose specified in such writing, forthwith convene a specialmeeting for that purpose. Two days’ notice of the day appointed forany such special meeting shall be given to, or left at the residence of,each member of the Council. ”''
He submitted that tins provision gave no discretion to the Chairmaneither in the matter of summoning a special meeting or in the matter ofplacing the resolutions specified in the requisition before such a meeting.
Sir Ukwatte Jayasundera for the respondent conceded that the respondent
"as bound to convene a special meeting when required to do so underSection 3S (2). blc claimed, however, that the respondent had a dis-cretion in regard to the resolutions which could be put before the meeting,and this Court would not interfere with its exercise.
It seems to me that if Rule 9 (c) applies to this case the petitioner'sapplication must fail, while if it does not apply the petitioner must succeedin view of the imperative provisions of section 3S (2) of the Ordinancewhich are clear and free from ambiguity. I have dealt at some lengthwith a very similar matter in an order which I delivered on 20 October,1951,1 and I clo not wish to repeat all I said then. The relevant by-lawsand statutory provisions are the same in both cases, although that was acase which arose under the Town Councils Ordinance, No. 3 of 1940. Ithere decided that a by'-law worded similarly to Rule 9 (c) docs not applyto a .special meeting, because all that section 3S (2) requires, once theChairman has received a request in uniting specifying a purpose, is thattwo days’ notice of the day appointed for the meeting should be givenancl that the meeting should be convened for the specified purpose. Rule9 (c) is inconsistent with the peremptory provisions of section 3S (2) becauseit vests a discretion in the Chairman and confers on him the rightto rule out of order a resolution which is specified in a requisition. Inview of the provisions of section 1G6 of the Ordinance the Rule in questionmust give way to section 3S (2) of the Ordinance ; see also De Silva v.De Silva 2.
It cannot be denied that all the resolutions which were ruled out- oforder by the respondent are relevant to questions affecting the Counciladministration. It is therefore not necessary to consider what the posi-tion would be if the resolutions had no bearing at all on the business ofthe Council. The words “ any purpose ” in section 3S (2) must begiven a reasonable construction in the light- of the other provisions of theOrdinance : they do not include any purpose under the sun, for it mustbe remembered that they appear in an Ordinance enacted to establishUrban Councils for t he purpose of local Government.
With regard to the alternative remedy open to the petitioner underRule 1 (d), it is no remedy at all unless the petitioner obtains the per-mission of the Council. Moreover, section 3S (2) of the Ordinance not onlygives him a right to have resolutions discussed without such permissionbut also ensures that all the members of the- Council will have due noticeof the purpose of the special meeting. The procedure under Ride 1 (d)would place the petitioner at a disadvantage. The alternative remedyshould be equally convenient, beneficial and effectual.
It is trite law that Mandamus is only available to compel the doing of aduty not done, and not on the ground that a duty had been done erro-neously. The cases cited by' the respondent’s counsel establish thisproposition. But the petitioner’s complaint is that the respondent hasfailed to do the duty* cast upon him by* section 3S (2) and I think it is ajust complaint. For these reasons I allow the application of tlie petitionerwith costs.-
Application allowed.
i (1931) 56 2f. L. R. 150.
= (1943) U N. L. R. 331.