060-NLR-NLR-V-61-THE-CHAIRMAN-VILLAGE-COMMITTEE-OF-GANDAHE-SOUTH-Appellant-and-P.-B.-HIPPOLA-.pdf
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The Chairman, Village Committee of Oandahe South v. Hippola
1957Present; T. S. Fernando, J.THE CHAIRMAN, VILLAGE COMMITTEE OF GANDAHE SOUTH*Appellant, and P. B. HIPPOLA, Respondent-8. G. 264—M. C. Kandy, 9,722
Village Communities Ordinance—Section 54 (2) (h)— Order made thereundtr—Rightof Supreme Court to revise it—Audit of accounts—-Recovery of money certifiedto be due—Jurisdiction of Magistrate to question accuracy of audit.
Although no appeal lies from an order made hy a Magistrate in proceedingsunder section 54 (2) (A) of the Village Communities Ordinance, the SupremeCourt may intervene by way of revision.
When a certificate of the auditor is produced before a Magistrate inproceedings under section 54 (2) (A) of the Village Communities Ordinance, it isnot open to the Magistrate to enter upon an inquiry to decide the questionwhether the audit has been carried out properly or whether the sum representsdebts irrecoverable by reason of the provisions of the Prescription Ordinance.
1 (1911) A. C. 179 at 182.
* (1915) A. C. 120 at 132.
T. S. FERNANDO, J.—The Chairman, Village Committee of Oandahe
Sooth v. Hippola
237
jAlPPTT.AT. from an order of the Magistrate’s Court, Kandy*
G. Weeramantry, with N. R. M. Daluwatte, for appellant*Mackenzie Pereira, for respondent.
T. A. de S. Wijesundera, Crown Counsel, for the Attorney-General, asamicus curiae.
Cur. adv. vult.
August 26, 1957. T. S. Fernando, J.—
The appellant who is the Chairman of the Village Committee of GandaheSouth made an application to the Magistrate of Kandy in terms of section54 (2) (h) of the Village Communities Ordinance for the recovery from therespondent who was a former Chairman of the same Village Committeeof a sum of Rs. 2.800/27 certified by the Auditor-General as being duefrom the said respondent. To the application was annexed a certificateof the Auditor-General which stated on its face that the sum of Rs. 2,800/27was part of the collections made by the respondent as Chairmanof the Village Committee of Gandahe South during the period 1stJune 1942 to 16th July 1948 and which ought to have been, but was not,deposited at the Kandy Kachcheri to the credit of the Communal Fundof the Gandahe South Village Committee, and that the said sum wasdue from the respondent to the Village Committee.
The matter came up for inquiry on 18th February 1957 on whichoccasion the appellant and the respondent were both represented bycounsel. No evidence was led on this day, but counsel for the respondentmade certain submissions to the Magistrate to which counsel for theappellant replied. The respondent’s counsel, in the words of the learnedMagistrate, t: took a preliminary objection to the case proceeding totrial ”. This objection appears to have been two-fold:—
that the accounts of this Village Committee had not been audited
annually as required by section 54 (2) (a) of the Ordinance ;
that the party aggrieved by any surcharge made against him by the
Auditor-General has a right of appeal to the Minister.
Another objection that appears to have been taken by respondent’scounsel was that, if the respondent had failed to pay over any moneyreceived by him on behalf of the Village Committee, such money wouldbe in the nature of a book debt and would be prescribed in one year.
238 T. S. FERNANDO, J.—-The Chairman, Village Committee of Qanddke
'■Smith v. Hippola
The learned Magistrate, apparently taken up by these objections, madeorder “ discharging ” the respondent, observing that, if the annualaudits of 1942 to 1948 had been correctly carried out, the audit carriedout in the course of 1955 must have been wrong and also expressing ashis opinion that the Village Committee would be barred by the provisionsof the Prescription Ordinance from recovering any deficit.
When the appeal came on for hearing before me, counsel for the res-pondent urged by way of a preliminary objection that no right of appeallay from the Magistrate’s order. He relied on the case of The Commis-sioner of Stamps v. Ahamadulewai 1, where Schneider J. in consideringan appeal from an order made hy the Magistrate under section 50 ofthe Stamp Ordinance held that no appeal lay. A similar decision hadbeen reached hy a Divisional Court of three Judges in Ghmatoardena v.Gunasekera 2. The provisions of section 50 of the Stamp Ordinance andof section 54 (2) (h) of the Village Communities Ordinance are similaron the points relevant to the question in issue in this case, and counselfor the appellant did not attempt to argue seriously that an appeal layin this case. He however strongly urged that the course the proceedingstook before the Magistrate and the order made by the latter have resultedin a total denial of the Village Committee’s legal rights and invited theintervention of this Court by an exercise of its powers of revision. Afterexamining the proceedings had before the learned Magistrate, I am quitesatisfied that this is a case in which the order made hy the Magistratemust be revised, and in deciding to exercise the powers of revision of thisCourt in this instance I am fortified hy the following observations madehy Bertram C.J. in Gunawardena v. Gunasekera {supra) in respect of anorder made by a Magistrate in a proceeding under section 50 of the StampOrdinance:—
The position appears to be that the Magistrate himself cannot gointo the merits of the matter. He can only deal with certain limitedquestions. His decision is, in any case, final and without appeal.If he errs on any question which he is competent to entertain, the onlymethod of dealing with the matter would he by recourse to our ownspecial powers of revision. ”
In cutting short the recovery proceedings initiated by the appellantthe learned Magistrate has completely misunderstood the nature of hisfunctions under section 54 of the Village Communities Ordinance. Ifail to understand the relevance to the reference to the PrescriptionOrdinance, and I may say that learned counsel who appeared for the res-pondent before me who was the same counsel who appeared before theMagistrate made no attempt to enlighten me on the point.
I fail also to understand the reason why it was urged before the Magis-trate that a party against whom an order of surcharge is made has a rightof appeal to the Minister. The existence of such a right was never dis-puted, and counsel for the appellant had even intimated to the Magis-trate that that right had in fact been exercised by the respondent without
success.
1 {1922) 2d N. L. B. 255.
* (1922) 1 T. L. B- 90.
T. S. FERNANDO, J-—The Chairman, Village Committee of Oandahe 239
South v. Hyppola,
Learned counsel for the respondent did attempt to suggest before methat the accounts of this particular Village Committee had not beenaudited annually as required by section 54 (2) (a) of the Ordinance.I was not prepared to entertain any argument on the basis of an absenceof annual audits as no evidence had been led on the point before theMagistrate. Moreover, I fail to see what authority there is for a Magis-trate in proceedings under this Ordinance to enter upon an inquiry as towhether the Village Committee’s accounts have been duly audited.
Section 54 (2) of the Village Communities Ordinance provides for theauditing of the accounts of a Village Committee ; for the disallowanceby the auditor of every item of the accounts contrary to law ; for thesurcharging of the sum of money represented in that item on the personresponsible for the making of the illegal payment; for charging againstany person the amount of any deficiency or loss incurred by the negli-gence or misconduct of that person and also any sum which ought to havebeen but is not brought into account by that person. The auditor isrequired to certify the amount due and the name of the person from whomit is due. Provision is also made for an appeal by any person aggrievedby any surcharge or disallowance. Every sum certified by the auditorto be due is required to be paid to the Village Committee by the personwhose name appears on the certificate within 14 days after the decisionof the auditor is communicated to such person subject, of course, to anyrevision or reversal of the auditor’s decision by the Minister upon appealpreferred. Where an appeal has been unsuccessful, it becomes the dutyof the Village Committee to recover the sum certified by the auditor byapplication made to the Magistrate having f! local jurisdiction ”. Thesum so certified is to be recovered in the same manner as a fine imposedby the Magistrate is recovered.
Upon a certificate of the auditor being produced before a Magistrate,I am of opinion that it is not open -to-the Magistrate to enter upon aninquiry to decide the question whether the audit has been carried outproperly or whether the sum represents debts irrecoverable by reason ofthe provisions of the Prescription Ordinance. It is unnecessary to gointo the question whether a certificate of an auditor can under no cir-cumstances be questioned. It is sufficient to say that no argument orcontention worthy of the name was placed before the Magistrate to staywhat were in reality recovery proceedings. As Schneider J. said in TheCommissioner of Stamps v. Aha-madulevvai (supra) of proceedings undersection 50 of the Stamp Ordinance, “ the (Magistrate’s) Court is onlyinvoked for the purpose of recovering the amount already determined.It has no jurisdiction over the question whether that amount is rightlydue or not ” ; or as Ennis J. stated in Gfunawardena v. Gunasekera (supra),also of proceedings under the Stamp Ordinance, it seems to me that section54 (2) (h) of the Village Communities Ordinance merely provides ad-ministrative machinery for the recovery of sums due under the Ordinanceupon certificates of the auditor ; or as Bertram C. J. said in the same case,the provision of the statute cc merely empowers and directs the Magis-trate to do an executive act, namely, to execute the order of the authoritymaking it”.
240 T. S. FERNANDO, J.—The Chairman, Village Committee of Oandahe
" South v. Mippola
It is impossible to justify the order oftf discharge ” made by the learnedMagistrate. It seems to me that the objections urged before him at theinquiry already held by him were frivolous, and any justification forraising objections of that nature has to be sought only in the circumstancethat they did succeed before the Magistrate.
I set aside the order of “ discharge ” entered by the learned Magistrateand direct that the record of the case be remitted to the Magistrate sothat he may now proceed as required by law in the matter of the recoveryof the sum certified by the auditor.
Order set aside.