Goonesinghe, A.E. V. The Mayor Of Colombo

1914 Present: de Kretser J.

A. E. GOONESINGHE v. THE MAYOR OF COLOMBO.

IN the matter of an application for a writ of mandamus on the Mayor of Colombo.

Municipal Council of Colombo-General meeting-Right of member to bring forward resolution although not placed on the agendas-Municipal Councils Ordinance (Cap. 193), s. 85-Writ of mandamus-Must be effectual-Effect of delay or alternative remedy.

Section 85 of the Municipal Councils Ordinance, read with certain rules passed under section 109, gives a member of the Colombo Municipal Council the right to bring forward, at a general meeting, a resolution, of which he has given three clear days' notice to the Secretary, despite the fact that the Chairman has, prior to the date of the meeting, expressed the opinion that the resolution is out of order and directed that it should, not be placed on the agenda.

A writ of mandamus will not be granted to place a motion on the agenda of a meeting which has already been held.

A mandamus will not be issued when another remedy is available or when it appears that it would be futile in its result or when the application for it is belated.

APPLICATION for a writ of mandamus on the Mayor of the Colombo Municipal Council by the petitioner who is a member of the Council.

C .S. B. Kumarakulasingham (with him M. M. Kumarakulasingham) for petitioner.

H. V. Perera, K.C. (with him N. K. Choksy), for the respondent.

Cur. adv. vult.

December 19, 1944. DE KRETSER J.-

This is an application for a mandamus on the Mayor of the Colombo Municipal Council and the prayer is that this Court may issue a writ in the nature of a mandamus on the respondent " directing him to place the said motion on the agenda for a consideration by the said Council "

Many of the facts leading up to this application are not in dispute,, some of them are much in dispute. I propose to confine myself only to such facta as are necessary for the purpose of my order. I do not propose-to deal at greater length with this matter than is absolutely necessary.

It would appear that the Municipal Council undertook the collecting of contributions due on the War Damage Ordinance and that they were to be paid 6 per cent, of the collection by way of remuneration. The amount which it received by way of remuneration amounted to Rs. 29,953.41. According to a minute by the Treasurer the expenditure was Rs. 24,688.92. That left a balance of Rs. 5,264.49. The petitioner in his petition states, however, that the sum was Rs. 7,746.37.

By a resolution of the Council at the time they undertook the collection, any surplus, after meeting the expenses, was to be credited to revenue. When, therefore the surplus was found one would imagine it would automatically pass to revenue. However, some question seems to have arisen regarding the use of this surplus that should have been -credited to revenue and the Commissioner of War Risk Insurance was of opinion

that it would not be proper for the Council to make a profit on the transaction and proposed that the amount should be distributed among the contributors. The Commissioner of the Municipal Council agreed with this opinion but thought that the distribution of it would involve considerable labour and expense. He accordingly recommended the remuneration suggested by the Treasurer, viz., that the money should be distributed among certain officers and clerks who had done extra work. Apparently there had been a temporary staff who had been employed for the work who did not get the benefit of the largesse.

The matter came up for consideration by the Finance Committee, in which the petitioner seems to form an unfortunate and conspicuous minority. At the meeting a member enquired why the Commissioner of the Municipal Council was not sharing in the money and according to the affidavits-all but the petitioner's-it was agreed that he should have a month's salary. According t

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