1949 Present . Windham J.

MOHAMEDU, Petitioner, and DE SILVA, Respondent

S. C. 50-APPLICATION FOR A WRIT OF MANDAMUS ON

D. R. DE SILVA, CHAIRMAN, URBAN COUNCIL,

PANADURA

Writ of Mandamus-Available only to compel the doing of a duty which has not been done-Not available to undo- an act already done, though irregularly Butchers Ordinance (Cap. 201), s. 7 (1) (2).

The first respondent, who was the Chairman of an Urban Council, issued a butcher's licence to the second respondent although no formal application for it had been made by the latter. According to section 7 (1) of the Butchers Ordinance, as amended by Ordinance No. 44 of 1947, every person who desires to obtain a butcher's licence should make formal application and, thereafter, the licensing authority should, as required by section 7 (2), publish a notice in the Gazette calling for objections, if any, to the issue of such licence.

In an application for a writ of mandamus upon the first respondent, calling upon him to publish a notice in the Gazette in terms of section 7 (2)-

Held, that the remedy of mandamus is only available to compel the doing of a duty which has not been done. As the second respondent had made no application under section 7 (1) the first respondent was not bound to publish a notice under section 7 (2) in respect of it.

Held further, (i) that mondamus will not be granted to compel the performance of some duty which may arise in the future. There must be an existing duty, and an existing right in the petitioner to have it performed.
(ii) that the Court will not grant a mandamus to undo an act already done, nor will it allow the validity of an act purporting to have been done under a statute to be tried in an action for mandamus. Accordingly, an action for mandamus was not the proper remedy by which to seek the cancellation of the licence which had been irregularly issued.

THIS was an application for a writ of mandamus upon the Chairman of the Urban Council of Panadura.

Colvin R. de Silva with M. M. Kumarakulasingham, for the petitioner.

U. A. Jayasundera, K.C., with H. W. Jayewardene and Vernon Wijetunge, for the first respondent.

Cur. adv. vult.

September 30, 1949. WINDHAM J.-

This is an application for a writ of mandamus upon the first respondent, the Chairman of the Urban Council of Panadura, calling upon him to publish a notice in the Gazette in respect of an application for a licence to carry on the trade of a butcher said to have been made to him by the second respondent under section 7 (1) of the Butchers Ordinance (Cap. 201) as re-enacted with amendments in the Butchers (Amendment) Ordinance, No. 44 of 1947. Sub-section 2 of section 7 requires the " proper authority ", who in an Urban Council area is the Chairman of the Council, to publish such a notice upon receipt of the application for a licence, calling upon any residents in the urban area desiring to object to its issue, to submit their objections in writing. Sub-section (3) provides for the hearing of such objections by the Chairman, whereupon an order may be made either granting or refusing the licence. Subsection (4) provides for the hearing of appeals against such an order.

The petitioner is a resident within the urban area of Panadura, and as such, is a person entitled to lodge an objection under section 7 (2).

Sub-sections (1) and (2) of section 7 are in the following terms: -

7. (1) Every person who desires to obtain a licence to carry on the trade of a butcher shall make an application in writing in that behalf to the proper authority. The application shall be signed by the applicant and shall state his name and the premises at which he intends to carry on such trade.

(2) Upon the receipt of an application for a licence, the proper authority shall publish a notice in the Gazette-

(a) stating that the application has been made and specifying the name of the applicant and the premises at which he int