1955 Present : Swan, J.

B. D. GUNAPALA, Petitioner, and HON. MR. C. W. W. KANNANGARA
(Minister of Local Government), Respondent

S. C. 269-Application for a Mandate in the nature of a Writ of Certiorari
to quash an order purported to have been made under Section 61 of
the Village Communities Ordinance

Village Communities Ordinance-Section 62-Removal of Chairman of a Village Committee from office-Executive function of Minister-Certiorari.

When the Minister of Local Government, by virtue of the power vested in him by section 61 of the Village Communities Ordinance, removes the Chairman of a Village Committee from office on being satisfied " that there is sufficient proof of " misconduct in the performance of his duties, he performs an executive and not a judicial act. Such act cannot be the subject of a writ of certiorari.

APPLICATION for a writ of certiorari on the Minister of Local Government.

Sir Lalita Rajapakse, Q.C., with G. T. Samerawickreme, G. C. Weerasinghe and T. G. Goonesekera, for the petitioner.

T. S. Fernando, Q.C., Acting Attorney-General, with V. S. A. Pullenayagum and Mervyn Fernando, Crown Counsel, for the respondent.

Cur. adv. vult.

March 25, 1955. SWAN, J.-

This application was filed on 9.6.54. It came before my brother Gunasekara on 11.6.54 who allowed notice on the respondent. The matter now comes up before me for disposal. Mr. T. S. Fernando who appears for the respondent has taken the preliminary objection that a writ of certiorari does not lie.

The petitioner was the Chairman of the Ambagamuwa Village Committee. The respondent by his order dated the 14th May 1954 and published in the Government Gazette bearing No. 10,673 dated 21st May 1954 removed the petitioner from office on the grounds of (a) misconduct in the performance of his duties as imposed by the Village Communities Ordinance and (b) abuse of the powers conferred upon him by the Ordinance. The petitioner states that one of the consequences of the order is that under Section 62 of the said Ordinance the petitioner is disqualified for a period of four years from exercising his civic rights as a voter and from being a candidate in an election for a Village Committee. In point of fact as the result of various amendments the petitioner is disqualified from election to membership of a Local Authority for five years but his right to vote at an election is not taken away.

The petitioner in the affidavit supporting his application states that on 22.4.54 the Commissioner of Local Government called upon him for an explanation why he had failed to account for in the cash book a part of the electricity fees collected by the Committee's collector. He duly submitted his explanation on 29.4.54. At no time was there any allegation of misconduct on his part, nor of any abuse of his powers as Chairman. The order removing him from office was made without any inquiry, and without giving him an opportunity to show cause why such an order should not be made.

The respondent and the Commissioner of Local Government have filed two affidavits dated the 11th December 1954. In the affidavit of the respondent it is stated that representations were made to him in or about April 1954 that the petitioner had failed to account for monies that had been received from the consumers in the Bogawantalawa area and he directed an immediate inquiry to be held. An inquiry was accordingly held by an Investigating Officer and it revealed that the petitioner had failed to bring into account a sum of Rs. 694.10 for a period of over seven months until the examination of the books by the Investigating Officer. The respondent directed the Commissioner of Local Government to draw the petitioner's attention to this lapse and to notice him to show cause why action should not be taken against him under Section 61 of the Village Communities Ordinance. The petitioner by his letter dated 25.4.54 showed cause. Havin