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MUNASINGHE v. THE AUDITOR GENERAL
NLR64V474
1961 Present:
Tambiah, J.
J. C. W. MUNASINGHE, Petitioner, and THE AUDITOR-GENERAL
and another, Respondents
S. C. 31-Application for a Writ of Certiorari and for a Writ of
Prohibition under Section 42 of the Courts Ordinance
Certiorari-Executive officer
entrusted with quasi-judicial functions-Procedure to be followed by him when it
is not specified by statute-Natural justice-Audi alteram partem rule-Town
Council Chairman-Surcharge by Auditor-General-Appeal therefrom-Procedure-Town
Councils Ordinance, No. 3 of 1946, ss. 195 (1), 196' (1) (2) (3).
By section 196 (3) of the Town Councils Ordinance (as amended by Gazette No.
9,773 of 24th September 1947) :-
"... any person aggrieved may . . . appeal to the Minister, and it shall be
lawful for the Minister, upon such appeal, to decide the question at issue
according to the merits of the case, and if the Minister finds that any
disallowance or surcharge has been lawfully made, but that the subject matter
thereof was incurred under such circumstances as to make it fair and equitable
that the disallowance or surcharge should be remitted, the Minister may direct
that such disallowance or surcharge shall be remitted
Held, that, when a person who has been surcharged by the
Auditor-General under the provisions of section 195 (1) of the Town Councils
Ordinance appeals to the Minister under section 196 (3), the Minister has a duty
to act judicially and to observe the rules of natural justice, particularly the
rule audi alterant partem. Accordingly, if the Minister does not give the
appellant an opportunity to be heard, writ of Certiorari will lie.
APPLICATION
for a Writ of Certiorari and/or a Writ of
Prohibition against the Auditor-General and the Minister of Local Government and
Housing.
A. C. Nadarajah, with C. V. Munasinghe and Miss Suriya Wickramasinghe, for the
petitioner.
Mervyn Fernando, Crown Counsel, for the respondents.
Cur. adv. vult.
May 15, 1961. TAMBIAH, J.-
This is an application for a writ of certiorari to quash the order of the
Auditor-General, surcharging the petitioner sums of money amounting to Rs.
28,962/48 cts. and the order of the Minister of Local Government and Housing
confirming the said sum.
The petitioner, in his affidavit, set out the facts of the case. The petitioner
was the Chairman of the Madampe Town Council from 1947 to the end of 1958,
except for a few months in 1953. In 1950, the late Mr. S. W. R. D. Bandaranaike,
the then Minister of Health and Local Government, requested the Madampe Town
Council to start a Housing Scheme and agreed to reimburse 75% of the expenditure
out of the Slum Clearance Vote for 1950-1951.
In pursuance of this agreement, a sum of Rs. 87,862 was given as Government
grant for the scheme and the Town Council was requested to get the balance as a
loan from the Local Loans and Developments Fund. Although the original scheme
was to have the Housing Scheme on the land owned by the Council, another site
was purchased for this purpose for Rs. 18,000, on the advice of the Town
Planner, with the approval of the Commissioner of Local Government.
Tenders were called for by the Council and the contract was given to the Globe
Agency Ltd., Colombo, to complete this scheme at a cost of Rs. 138,914/23 cts.
By a resolution dated 30.4.51, the Council vested the petitioner with the
necessary authority and powers for the successful construction work of the
scheme. The Commissioner of Local Government offered to pay Rs. 70,000 and made
an initial payment of Rs. 10,000, undertaking to pay the balance during the
following year. According to the petitioner, however, as the sums promised were
paid in small instalments, and as there was delay in the payment of such
instalments, he was compelled on some occasions to authorise the advances for
materials supplied and the work already done, in terms of Rule 97, framed under
Section 206 of the Town Councils Ordinan
