BUDDADASA VS COMMISSIONER OF LOCAL GOVERNMENT AND OTHERS

BUDDADASA VS.
COMMISSIONER OF LOCAL GOVERNMENT AND OTHERS

COURT OF APPEAL
SRISKANDARAJAH,J,
LECAMWASAM,J.
CA 963/2007
AUGUST 27,2009

Writ of Certiorari - Pradeshiya Saba Act Section 8 (2), Section 8 (2), Section 8 (4) - Delegation of power by the Chairman who is out of the Island? To whom? :..When? Can a public officer or body delegate the entirely of the powers possessed by him? Distinction between Section (2), Section 8 (3) and Section 8 (4)

The petitioner Chairman of the Predeshiya Sabawa (Kaduwela) delegated his powers to the Secretary of the Pradeshiya Sabawa - as he had to go abroad for a conference. In an earlier occasion, he delegated his powers to the same Secretary, when he went abroad for medical treatment. On a complaint lodged with the Human Rights Commission (HRC), the Human Right Commission came to the conclusion that, there is a violation of the rights of the Vice Chairman and recommended that in future in the absence of the Chairman his duties should be entrusted to the Vice Chairman.

The Commissioner of Local Government - lot respondent - in the second instance - invited the Chairman to comply with the directions of the H.R.C.

The petitioner sought to quash this direction issued by the 1st respondent.

Held

(1) A careful scrutiny of Section 83 ( ) of the Act will illustrate that the power so delegated is envisaged not to be a general power, but be for a specific purpose. Chairman cannot delegate all the power which he possess but only some of the powers.

Per Lecamwasam, J.

    "General principles of law enumerates certain confines within which delegation could be effected which delegation is sometimes

essential for administrative convenience, such delegation has to be either expressly or impliedly authorized by statute. A public officer or body cannot delegate the entirely of the powers possessed by him or it. Delegation should be for a particular function or purpose, including a power to revoke such delegation where desired".

(2) Section 8 (4) deals with a situation where the Chairman is absent due to the illness or other unavoidable cause as in the instant case. When the Chairman is overseas it is obvious he cannot attend to routine work of the Pradeshiya Saba. Therefore somebody must act for the Chairman during the period when the Chairman is away from Sri Lanka.

(3) There is a clear distinction between Section 8 (4) as opposed to Section 8 (2) and Section 8(3). Section 8 (2) and 8 (3) deal with delegation, but when the Chairman is away from Sri Lanka provisions of Section 8 (2) and Section 8 (3) do not apply. The only applicable Section is Section 8 (4). Under Section 8 (4) he has no legal authority to delegate his powers to the Secretary. The Vice Chairman is the sole person of authority who could exercise the powers and perform duties of the Chairman when the Chairman is away from Sri Lanka.

Per Lacamwasam, J.

"Chan has acted in an arbitrary and illegal manner delegat109 his powers to the Secretary for the second time even after the directions of the H.R.C. - it is a lamentable indication of his disrespect for the law of the country. "

APPLICATION for a Writ of Certiorari.

Manohara de Silva PC with Nimal Hippola and Anusha Perusinghe for petitioner

Janak de Silva SSC for 1 - 9th respondents.

Rashika Dissanayake for 10th respondent.

Rohan Sahabandu for 11th respondent.

November 4th, 2009
D. S. C. LECAMWASAM, J.

    The petitioner is the chairman of Pradeshiya Sabha, Kaduwela. Due to ill health he had to be away in Malaysia

for medical treatment during the period spanning from 31.01.2007 to 05.02.2007. Prior to leaving the chairman delegated his powers to the secretary of the Pradeshiya Sabha instead of the vice chairman for which governor has given his approval. Being dissatisfied with the above delegation of power, the vice chairman of the Pradeshiya Sabha, i.e. the 10th respondent, made an applica

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