SREE NARAYAN GURU SOCIETY
VS.
COLOMBO MUNICIPAL COUNCIL

COURT OF APPEAL
SRI SKANDARAJAH J
CA 2125/2005 (WRIT)
JUNE 11,2008
OCTOBER 20.2008
DECEMBER 15, 2008

Writ of Mandamus- Urban Development Authority Act- Sections 3, 8(i), 23(5), 28A -Development Activity- Municipal Councils Ordinance Section 37, 37(1) 155 - Permit issued to construct temporary structures withdrawn - Can the Authority remove the structures?- Public duty- Development Activities?

The 3rd Respondent the Municipal Council Commissioner has granted permits to the 4th - 8th Respondents to have stalls on the pavement - complained of. On complaints made by the Petitioner, the permit was cancelled. These temporary structures were not removed. The 1st Respondent who is the Municipal Council refused to act. The Respondents contended that the power to issue permits for the purpose of carrying out any development activity in any development area rests with the U.D.A, and action has to be taken by the UDA and not the 1st Respondent -Colombo Municipal Council. The power to issue permits in any development area rests with the UDA and any development activity commenced and continued without a permit action has to be taken by the U.D.A.

Held:

1, The 3rd Respondent has temporarily allocated a site under Section 155 of the Municipal Councils Ordinance in the land vested with the 1st Respondent under Section 37 of the Municipal Councils Ordinance.

2. The 3rd Respondent Municipal Commissioner has cancelled and withdrawn the authority given to the 4-8th Respondents to use the site for pavement stalls. The powers exercised by the 1-3rd Respondents is this power vested with them and not the power delegated under Section 23(5) of the UDA Act. The temporary structures were constructed with the permission of the 3rd Respondent and they would not fall under the Urban Development Authority.

3. The duty to establish markets is distinct and different from the duty to maintain thoroughfares free and unimpaired. A Council cannot discharge that duty in such a way to cut across another duty.

4. The 1st-3rd Respondents have a public duty to remove the structures for the free and unimpeded use of the pavement.

APPLICATION for a writ of Mandamus.

Cases referred to :

1. Jayasinghe v. Seethawakapura Urban Council and Others 2003 3 Sri L.R. 40 and 42

2. Liyanage and others vs. Gampaha Urban Council- 1991- 1 SLR 1

Nihal Jayamanne P. C with Anandalal Nanayakkara and Dilhan de Silva for the Petitioner.

Channa Nilanduwa for the 1-3rd Respondents.

Thevasenadhipathy for 4-8 Respondents

Cur.adv.vult.

February 19,2009
SRISKANDARAJAH. J

The Petitioner is a society incorporated by Act No. 48 of 1980 and is a corporate sole in the name of Sree Narayana Guru Society of Sri Lanka. The Petitioner society owns the property called the Sree Narayana Guru Memorial Malayalee Hall situated at No. 133, Layards Broadway, Colombo 14. The Petitioner submitted that from 2003 time to time certain persons have carried out trading of various sorts on the pavement abutting the said Sree Narayana Guru Memorial Malayalee Hall. The members of the Board of Trustees of the Sree Narayana Guru Society of Sri Lanka and others have complained of these activities to the 1st Respondent Colombo Municipal. On or about 23rd of September 2005, some persons started putting up permanent constructions in the pavement abutting the Sree Narayana Guru Memorial Malayalee Hall. Upon inquiry from the 1st and 2nd Respondents the Colombo Municipal Council and the Mayor of the Council respectively, the secretary of the society came to know that the 4th to 8th Respondents had been granted permits to have stalls on the said pavement by the 3rd Respondent the Municipal Commissioner.

It is common ground that the 3rd Respondent Municipal Commissioner has allocated a site for pavement stall at Sirimavo Bandaranayaka Mawatha, Colombo 14 to the 4th to the 8th Resp