Samaraweera V. Balasuriya

1955 Present: Sansoni, J.

SAMARAWEERA, Petitioner, and BALASURIYA, Respondent

S. C. 398-Application for a Writ of Mandamus on the Chairman of the
Urban Council, Matara

Urban Councils Ordinance, No. 61 of 1939-Special meeting of Council-Duty of Chairman to convene one-Sections 38 (2) and 166-By-laws-Mandamus- Effect thereon of alternative remedy.

A writ of mandamus lies against the Chairman of an Urban Council if he refuses to convene a special meeting of the Council when required to do so under section 38 (2) of the Urban Councils Ordinance. In view of the provisions of section 166, a Rule in terms of Rule 9 (c) of the By-laws of the Urban Council of Matara must give way to section 38(2).

An alternative remedy provided by a by-law but which is not as convenient, beneficial and effectual as mandamus cannot operate as a bar to the application for mandamus.

APPLICATION for a writ of mandamus. N. Nadarasa, with 8. Sharvananda, for the petitioner.

Sir Ukwatte Jayasundera, Q.C., with 0. T. Samerawickreme, for the respondent.

Cur. adv. vult.

April 6, 1955. SANSONI, J.-

This is an application for a Writ of Mandamus made by a member of the Urban Council, Matara, against the Chairman of that Council. The petitioner and five other members of the Council requested the respondent Chairman, by their letter dated 28th July, 1954 to convene a special meeting of the Council forthwith for the purpose of debating seven resolutions in the following terms :-

(1) That the Chairman U. C. Matara, be surcharged the amount of salaries and allowances paid to all employees appointed by him to the Council without the previous sanction of the Council or whose appointments have not been subsequently confirmed by it.

(2) This Council calls upon the Auditor-General to send immediately a special officer to investigate cases of unauthorised expenditure and payments made by the Chairman U. C. Matara
.
(3) That the power of appointment of all necessary officers and servants permanent or temporary and of their removal or suspension, be exercised by this Council (and not by the Chairman alone) in all cases where the salary or wages of any such, employee does not exceed Rs. 100.

(4) That on the ground of economy, the appointment of G. P. H. Arthur, of Totamune be forthwith cancelled and his duties delegated to the former occupant of the post, in addition to the duties now discharged by this former occupant.

(5) That work relating to the maintenance and repair of roads now being done in only ward No. 9, be forthwith stopped and work in all wards be carried out in conformity with a list of priorities decided on by the Council.

(6) This Council resolves to rescind resolutions No. 26 (2) passed on 23.1.1954, leaving the matter of the issue of licences for temporary picture-halls and carnivals to the Chairman U. C
.
(7) This Council resolves to rescind resolution No. 22 passed on 5.4.1954 adding the words "and to authorise the necessary expenditure " to items (d) and (e) of resolution No. 25 of 23.1.1954.

By his letter dated 29th July 1954 the respondent acknowledged receipt of the letter and informed the petitioner that the Resolutions Nos. 1, 2, 3, 4, 6, and 7 were disallowed while Resolution 5 would be submitted for debate at a meeting to be held on 2nd August 1954 at 3.30 p.m. Apparently such a meeting was held on the appointed date but these resolutions which had been disallowed were not placed on the agenda and this application has been made in order that the respondent may be directed to convene a meeting for the purpose of discussing those resolutions.

The respondent has justified his action by relying on Rule 9 (c) of the By-Laws of the Council which reads :-

" Before any notice of motion is placed on the agenda paper, it shall be submitted to the Chairman, who, if he be of opinion that it is out of order, shall cause the giver of the notice to be so informed. "

He plead

Click Here to Read the rest of this document