045-SLLR-SLLR-2005-V-2-SUKUMAL-vs-MUNICIPAL-COUNCIL-OF-COLOMBO.pdf
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Sukumal vs
Municipal Council of Colombo (Wimalachandra J.)
249
SUKUMALVSMUNICIPAL COUNCIL OF COLOMBOCOURT OF APPEAL,
AMARATUNGA, J.,
WIMALACHANDRA, J.
CALA 249/2003-D. C. COLOMBO 6086/SPLMARCH 29 2004AUGUST 9, 2004
4
Municipal Councils Ordinance – Section 49 (1), Section 177 – Appointment to
any post or office in (he Council – who could appoint?- Is it the Mayor or theMunicipal Council Commissioner.
The Plaintiff Petitioner institued action seeking a declaration that he bedeclared as the permanent caretaker of the Public Toilet of ColomboMunicipal Council at a particular bus stand, and a permanent injunctionrestraining the Defendants from removing him from the said post. Heclaimed that he was appointed by the Mayor of the Council. Interim reliefwas refused by the District Court.
On leave being sought.
HELD:The public toilet is the porperty of the Colombo Municipal Council,the Provisions relating to appointments are found in section 40(1) andsection 177.
It is the Municipal Council and/ or the Commissioner authorised bythe Council who could make appointments. The Mayor had no authorityto make such appointments.
Court will grant an injunction only to support a legal right.
APPLICATION for leave to appeal from an Order of the District Court ofColombo.
250
Sri Lanka Law Reports
(2005) 2 Sri L. R.
Dr. Jayathissa de Costa with D. D. P. Dassanayake for Plaintiff Petitioner.Ms. M. Silva for Defendant Petitioner.
Cur adv vult
November3, 2004
WIMALACHANDRA, J.This is a leave to appeal application against the order dated 26. 06.2003 of the learned Additional District Judge of Colombo, refusing togrant an interim injunction against the 1 st and 2nd defendants respondents(defendants) as prayed for in the paragraph.
The plaintiff – pettioner (plaintiff) instituted the action bearing No. 6086/Spl in the District Court of Colombo, seeking a declaration that the plaintiffbe declared as the permanent caretaker of public toilet of the ColomboMinicipal Council at the Gunasinghepura Bus stand, and a permanentinjunction restraining the defendant – respondents (defendants) fromremoving the plaintiff from the position of the permanent caretaker of thesaid public toilet. He also prayed for an interim injunction against thedefendants, restraining them from removing him from the said positionuntil the determination of the plaintiffs action.
When the application for an interim injunction-was taken before thelearned Additonal District Judge of Colombo the parties were directed tofile wtitten submissions and therafter the learned Judge delivered theorder on 26. 06. 2003 refusing the interim injunction prayed for by theplaintiff. It is against this order the plaintiff has filed this application forleave to appeal.
Admittedly, the said Public Toilet is the property of the 1st defendant,the Colombo Minicipal Council. The plaintiff claims that he was appointedas the permanent caretaker of the said Public toilet by the then MayorMr. Ratnasiri Rajapakse in 1993. However the plaintiff did not produce theletter of appointment at the inquiry held before the learned Judge. Theprovisions relating to the appointments under the Municipal CouniclOrdinance are found in section 40(1) of the Municipal Council Ordinance.Section 177 of the Ordinance states as follows:
CA
Sukumal vs
Municipal Council of Colombo (Wimalachandra J.)
251
“Notwithstanding anythin in any orther written law, theCommissioner may, if so authorized by the Council, form time totime, appoint or promote any person to any post or office in theservice of the Council (other than a post in the Local GovernmentService) the initial salary of which does not exceed such sum asmay be specified in the resolution of the Council whereby suchauthority is delegated to the Commissioner.”
Therefore it is to be seen that is the Municipal Council and/ or theCommissioner authorized by the Council who makes such appointments.The Mayor has no authority to make such appointment.
The plaintiff admitts in paragraph 9 of the affidavit annexed to the plaintthat there was no contract between the plaintiff and the 1 st defendant, the
Colombo Municipal Council. The relevant portion in paragraph 9 reads asfollows:
The plaintiffs original position is that the then mayor, Mr. Rajapakshaappointed him as the permanent caretaker of the said Public Toilet andhe states that it was a permanent appointment.
The plaintiff also takes a different position and states that he submittedsealed quotations for the post of caretaker of the Goonesinhepura Publictoilet in response to a notice of invitation to tender, dated 28. 11. 1988pulished in the Dinamina News Paper (a copy of which is annexed to theplaint marked “P4”) and the mayor, Mr. Rajapakse appointed him as thecaretaker of the said Public toilet.
It is to be observed that the plaintiff claims that he became the caretakerof the said Public Toilet after being appointed by the former Mayor, Mr.Rajapakse. He has also taken up the position that he was appointed asthe successful tenderer after he had tendered for the GonnesinghepuraPublic toilet in response to a tender notice published in the DinaminaNews Paper dated 28. 1. 1988 (a copy of which is annexed to the plaintmarked “P4”). ft appears that the plaintiff has taken two contrary positionswith regard to how he became the caretaker of the said Public Toilet.
252
Sri Lanka Law Reports
.(2005) 2 Sri L R.
In any event he has failed to produce any letter of appointment giveneither by the Colombo Municipal Council or by the former Mayor, Mr.Rajapakse.
However, it will be seen that in terms of the provisions of the MunicipalCouncil Ordinance it is the Municipal Council, acting by itself or throughthe Commissioner, which can make appointments. The plaintiff has alsofailed to produce a written agreement entered into with the ColomboMunicipal Council relating to the Goonesinghepura Pulic Toilet. In thesecircumstances, it appears that the plaintiff does not possess any suchvalid document of appointment at all.
Admittedly, there is no agreement in writing between the plaintiff andthe 1st defendant for the maintenance of the Goonesinghepura PublicToilet belonging to the 1 st defendant. It is apparent on the material placedbefore Court that there has been no commitment on the part of the 1 st and2nd defendants to hand over the said Public Toilet to the plaintiff. Theplaintiff has failed to establish the existence of a written agreement forleasing the said Public toilet to him.
In these circumstances, I am of the opinion that the plaintiff has failedto establish a prima facie case in his favour. The Court will grant aninjunction only to support a legal right. The plaintiff first tried to show thathe was appointed by the former Mayor. Mr. Rajapakese but failed to produceany letter of appointment. Thereafter he tried to show that he was thesuccessful tenderer who was awarded the tender and on this ground he isentitled to be appointed as the caretaker of the said Public Toilet. But hefailed to establish that he was the successful tenderer who was awardedthe tender as the highest bidder by documentary evidence.
Accordingly, the plaintiff has failed to establish a prima facie case. It isonly when there is a prima facie case the court would consider where thebalance of convenience lie.
This Court therefore sees no reson to interfere with the order of thelearned Additional Additional District Judge dated 26. 03. 2003. Theapplication for leave to appeal is dismissed with costs fixed at Rs. 2,500/-
Amaratunge J. – / agree
Application dismissed.