1954 Present: Swan J.

B. N. COORAY, Petitioner, and C. T. GRERO, Respondent

S. C. 140-Application for a Writ of Mandamus

Municipal Council of Colombo-General meeting-Notice of motion by member- Chairman's refusal to include motion in agenda-Remedy of member-Municipal Councils Ordinance, No. 29 of 1947-Section 21-By-Law 10-Amending" Act No. 39 of 1951, s. 15 (2)-Mandamus-Effect of alternative remedy- Necessary parties.

A writ of mandamus is not available where there is another remedy open-to the party seeking it. The alternative remedy need not be an action at law ; it may be by way of an appeal to a. forum domesticum.

The petitioner, a member of the Colombo Municipal Council, gave notice of a motion for the removal of the respondent from the office of Mayor, and desired that the matter should be put up for discussion at a general meeting of the Council. The respondent, who was the Chairman of the Council, purporting to act under By-Law 10 (c), ruled that the motion was out of order, and the Secretary so informed the petitioner. The Secretary accordingly omitted to place the motion on the Agenda of the meeting. On an application by the petitioner for a writ of mandamus on the Mayor-

Held, that mandamus was not available for the reason that the petitioner had an alternative remedy, namely, an appeal to the Council itself under section 21 of the Municipal Councils Ordinance.

Held further, (i) that if mandamus was available the proper party respondent to the application was the Mayor and not the Secretary.

(ii) that the discretion of the Mayor under By-Law 10 to allow or disallow a motion must not be exercised arbitrarily.

(iii) that the proposed motion was a question affecting the Municipal Administration of Colombo within the meaning of By-Law 10 (d).

(iv) that a writ of mandamus, if available, could be issued although the date of the meeting had already passed.

APPLICATION for a writ of mandamus on the Mayor of the Colombo-Municipal Council.

Izzadeen Mohamed, with A. Kamalanathan and A. S. Vanigasooriar  for the petitioner.

H. V. Perera, Q.C., with N. M. de Silva and Eric LaBrooy, for the respondent.

Cur. adv. vult.

July 7, 1953. SWAN J.-

This is an application for a writ of mandamus on the respondent who is the Mayor of the Colombo Municipal Council. The petitioner is a duly elected member of the Council and he states that, in the exercise of his rights as such Councillor he, on the 12th March, 1953, gave notice of the following motion :-

" This Council resolves that Mr. C. T. Grero be removed from the Office of Mayor."

He desired that the matter should be put up for discussion at the meeting to be held on 17th March, 1953. His complaint is that the respondent wrongfully ruled that the motion was out of order.

The conduct of the business of the Council is regulated by By-laws which were duly framed for this purpose under the old Municipal Councils Ordinance of 1910 and which have been kept alive under the various amending and replacing ordinances and finally made operative under the enactment now in force, namely, Ordinance 29 of 1947 by virtue of two Notifications published in Government Gazettes Nos. 9,773 of September 24, 1947 and 9,875 of June 8, 1948.

Under this Ordinance the Mayor was to hold office for one year, but by the Amending Act 39 of 1951 that period of the Mayor's office was extended to be co-terminous with the life of the Council. The Ordinance made provision for the removal of the Mayor or Deputy Mayor from office on a resolution for such removal by a certain majority of the total number of Councillors. This provision has been slightly altered, i.e., as regards the requisite majority, by the Amending Act referred to above -which provides as follows :-

Section 15 (2)
" A Mayor or Deputy Mayor may be removed from office on a resolution for such removal duly passed at any meeting of the Council by not less than one half of the to