GUNATHILAKA VS. MAYOR, MUNICIPAL COUNCIL KANDY AND TWO OTHERS

GUNATHILAKA VS. MAYOR, MUNICIPAL COUNCIL KANDY
AND TWO OTHERS

COURT OF APPEAL
CHITRASIRI, J.
MALANIE GUNERATNE. J.
CA [PHC] 63/09
PHC KANDY 11/2015 [WRIT]
JULY 16, 2014

Writ of Mandamus - Municipal Councils Ordinance - Section 73 - Section 77 - Removing of obstructions over Municipal passage ways? Was the passage under the control of the Kandy Municipality? is there a public duty cast upon the Municipality to maintain passage way? Delay - fatal?

The petitioner sought a writ of mandamus directing the respondents to take all necessary steps to remove the obstructions found over the Municipal passage way. The respondents contended that the passage way is not under the control of the Kandy Municipality and that it is a private access and no public duty is cast upon the Municipality to maintain such a passage used as a private access. The High Court refused the writ prayed for. In appeal,

Held:

(1) The appellants have failed to establish that the passage had been under the control of the Municipality. In terms of Section 72 - Section 77 of the Municipal Council Ordinance it can remove obstructions that are under its control and maintain only road.

(2) Appellant has failed to establish that there had been a public duty to perform by the respondents. No mandamus would lie to direct or compel a person who exercises executive powers unless a public duty is cast upon on that person who exercises such a power.

(3) It is seen that there had been a delay which counts nearly three years delay is fatal.

APPLICATION for a writ of mandamus.

Cases referred to:-

1. Samaraweera vs. Minister of Public Administration 2003 3 Sri LR at 64

2. Sarath Hulangama vs. Siriwardane, Principal, Visaka Vidyalaya and others 1986 1 Sri LR at 275

3. Abdul Rahuman vs Mayor of Colombo 659 NLR at 217

Dr. Sunil Cooray with Arjuna Udawatte for petitioner appellant

Bharatha Abeynayake with Malani Atthatage for 1b-2- respondents - respondents

Isuru Balapatabendi for 3rd respondent-respondent.

29th August 2014

CHITRASIRI, J.

This is an appeal seeking to have the judgment dated 03.03.2009 of the learned High Court Judge in Kandy, reversed. by this appeal, the petitioner appellant also sought to have the reliefs that had been prayed for in the prayer to her amended petition filed in the High Court. In that prayer, she inter alia has an order directing the first two respondents to take all necessary steps to remove the obstructions and/or encroachments found over the Municipal passageway which is approximately 4 feet in width situated between the premises Nos. 74 and 72, Yatinuwara Veediya, Kandy. The said pathway is being morefully described in paragraph 32 in the amended petition dated 10.05.2006 filed in the High Court.

Learned Counsel for the appellant submitted that in terms of Sections 73 and 77 of the Municipal Council

Ordinance, the first two respondent-respondents are duty bound to take all necessary steps to remove obstructions found on the aforesaid passageway. Sections 73 and 77 in the Municipal Council Ordinance read thus:

73. (1) Whenever it appears to a Municipal Council that any building, enclosure or obstruction has been raised or made in any street under the control of the Council, or on any waste or other land immediately adjoining such street and belonging to the State, it shall be lawful for the Council by written notice served on the person claiming to be the owner of the premises on which such building, enclosure, or obstruction has been raised or made, to demand the production of every deed, document, and instrument upon which such person founds such claim.

77. (1) It shall be lawful for the Council, through any person authorized by the Council in that behalf, to give order verbally or by notice in writing, to any person obstructing or encroaching upon any street under control
of the Council, forthwith to remove or abate the obstruction or encroachment; and if a

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