ANTHONY AND OTHERS

Vs.

MUNICIPAL COUNCIL, NEGOMBO AND OTHERS

COURT OF APPEAL
OBEYESEKERE, J.
CA/WRIT/383/2017
OCTOBER 16, 2019

Writs of certiorari and prohibition-Municipal Councils Ordinance, sections 4, 37(1)(b), 40(f), 46, 50, 86, 327-Power of Municipal Council to lease pavements-Duties of Municipal Councils

The Municipal Councils Ordinance vests all streets and pavements within the limits of a Municipal Council with the relevant Municipal Council. It is the Municipal Council's duty to maintain such streets and pavements, keep them clean, and ensure the protection and promotion of the comfort, convenience and welfare of the people therein. A Municipal Council does not have the power to lease a street or part thereof, including the pavements.

Cases referred to:

1. Liyanage v. Gampaha Urban Council (1991] 1 Sri LR 1

APPLICATION for Writs of Certiorari and Prohibition.

Dr. Sunil Coorey with Sudarshani Coorey for the Petitioners.

Rohan Sahabandu, P.C., with Sayonara Wickremasinghe for the 1st-4th Respondents.

Suranga Wimalasena, S.S.C., for the 5th and 7th Respondents.

cur. adv. vult.

March 13, 2020

OBEYESEKERE, J.

When this matter was taken up for argument on 17th July 2019, the learned Counsel for the Petitioners, the learned President's Counsel for the 1st-4th Respondents and the learned Senior State Counsel for the 6th and 7th Respondents moved that this Court pronounce its judgment on the written submissions that have already been filed of record. When this matter was mentioned on 14th February 2020, all learned Counsel agreed to this Court sitting alone and delivering judgment.

The facts of this matter very briefly are as follows:

The Petitioners are engaged in trading businesses in premises situated within the Municipal Council limits of Negombo. The Petitioners state that by an advertisement placed in the English and Sinhala newspapers of 27th October 2017, annexed to the petition marked 'X2' and 'X3' respectively, the 2nd Respondent, the Municipal Commissioner, Negombo called for quotations for the 'lease of the pavement for the selling of Christmas Cards, Goods and Decorations from 1st December 2017 - 31st December 2017'. It is clear that the effect of leasing out portions of the pavement was to create a market place during Christmas, on public streets.

The Petitioners state that leasing out of pavements is contrary to the provisions of the Municipal Councils Ordinance (the Ordinance), and is ultra vires the powers of the 1st Respondent, Municipal Council of Negombo.

The Petitioners have alleged that the leasing of pavements would result in a loss of business to the Petitioners who are carrying out their business from permanent buildings situated on either side of the pavements, as their business establishments would be obstructed by the temporary structures that would be erected on the pavement by would-be lessees of the pavements. The Petitioners have stated further that leasing out of pavements to carry out trading activity causes severe congestion on the streets resulting in grave inconvenience to the general Public.

In this background, by letters annexed to the petition marked 'X4' and 'X5', the Petitioners had objected to the leasing of the pavements. However, as the 1st and 2nd Respondents did not respond positively, the Petitioners have filed this application, seeking inter alia the following relief:

a) A Writ of Certiorari to quash the decision to lease pavements for the sale of goods during the month of December;

b) A Writ of Prohibition restraining the 2nd - 4th Respondents from teasing out pavements.

The issue that this Court must decide in this application is whether the 1st Respondent, the Municipal Council, Negombo and the 2nd Respondent, the Municipal Commissioner, Negombo has the power to lease out pavements situated within the Municipality of Negombo.

The learned Senior State Counsel, appearing for the 6th and 7t