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IN THE MATTER OF THE APPLICATION OF JAMES DE SILVA WIMALASURIYA FOR A WRIT OF MANDAMUS ON THE CHAIRMAN.
NLR28V417
1927 Present: Lyall Grant J.
In the Matter of the Application of James DE SILVA
WIMALASURIYA for a Writ of Mandamus on the Chairman,
Urban District Council, Matale.
Mandamus-Suspension from office-Restoration before issue of writ -Naming of
member-Ordinance No. 11 of 1930, s. 25.
A writ of mandamus will not be granted to restore a person to an office of
which he has been temporarily deprived and to which he has been restored by the effluxion of time before the writ is issued.
APPLICATION
for a writ of Mandamus against the Chairman
of the Urban District Council, Matale, by the petitioner who is a member of the
Council. On February 5, 1927, at a meeting of the Council at which the
petitioner was present and took part in the deliberations, the Chairman ruled
that the language used by the petitioner in reference to the subject under
discussion was objectionable. The chairman called upon him to explain or
withdraw. The petitioner offered an explanation by which he maintained that the
remark was not objectionable. The chairman held that the explanation was not
satisfactory and called upon the petitioner to withdraw the remark, whereupon
the petitioner left the meeting. The chairman then moved that the petitioner be
suspended from the service of the Council for (a) disregarding the authority and
ruling of the chairman, (b) abuse of the rules for the conduct of business of
the Council. The motion was carried and the petitioner was suspended.
Keuneman (with M. C. Abeywardene), for petitioner.-The chairman, could
not act under section 22 in the light of the provisions of section 20. In
section 20 the words themselves must be objectionable. If there is an
explanation the chairman's peremptory powers are suspended.
The chairman cannot suspend the petitioner after he had left the hall. The
Chairman has not followed Parliamentary Procedure. Under section 24 the chairman
must be shown to have authority. There should have been a definition of the
offence of "disregarding the authority of the chair. " The member was not "
named " (see Erskine May on Parliamentary Procedure). The chairman has
exercised his discretion upon a wrong principle. He has been influenced by
extraneous considerations which he ought not to have taken into account.
E. W. Jayewardene, K. G. (with Navaratnam), for respondent.-The writ should have been applied for against the corporation and not the chairman see Ordinance No. 11 of 1920, ss. 9 and 16 : Tapping
on Mandamus, pp. 17, 29, 317: re Bristol and North Somerset Railway
Company 1). The granting of a writ would be futile in
effect as the suspended member's period of suspension terminates today
(see Tapping).
The Chairman had a discretion which he is empowered to exercise
(Short on
Mandamus 2; Board of Education 3:
Hals, 95 and 96).
March 9, 1927. LYALL GRANT J.-
This is an application for a writ of mandamus. The petitioner is a member of
the Urban District Council of Matale and the respondent is the Chairman of the
Council.
On February 5, 1927, the petitioner was present at a meeting of the Council.
Part of the business of the Council was the appointment of a sub-committee to
deal with the question of public latrines-serving private tenements. While this
subject was under discussion the petitioner made a remark to which exception was
taken by another member. On the precise nature of this remark, the petitioner
and respondent are at issue.
According to the account given by the respondent, which is embodied in the
minutes of the meeting, the petitioner made the remark "Put in Solamuttu
" with reference to the composition of the committee. Mr. Gopalawa
rose to a point of order.
The Chairman ruled that the language used was objectionable
and that the remark under the circumstances under which it was uttered was
undignified and insulting to the Coun
