llul'iioorija v. Municipal Council, J urmtegala
, Present: Abeyesundere, J., and Siva Supramaniam, J.,
E. W. BALASOORIYA, Petitioner, and MUNICIPAL COUNCIL,KURUNEGALA, Respondent
S.C.1J66—D. C. Kurunegala, 2278jSpl.
Homing and 'Town Improvement Ordinance—Seel ions 5, 10, SS—Order-made, byCommissioner of a Municipal Council refusing to approve a building plan—Appeal to District Court under s. IS—Vacation of office by the MunicipalCommissioner pending the appeal—Whether Municipal Council can besubstituted in his place—Municipal Councils Ordinance, s. 14 (S% –
"Where, pending an appeal under section 1C of the Housing and TownImprovement Ordinance from an order made by the Commissioner of a MunicipalCouncil refusing to approve a building plan, the Municipal Commissioner vacatesoffice, the proper party to be substituted in his place is bis successor iii officeand not the Municipal Council.
(jASE. stated by the District Court, Kurunegala, for the opinion of tiioSupreme Court.
S. Amerasinghe, with Fritz Kodagoda, for the petitioner:
No appearance for the respondent..
ABEYESUNDERE, J.—Balasooriya c. Municipal Council, KunmcgalaGS
May 26, 1967. Abeyesitxdere, J.—
The District Court of Kuruncgala is the tribunal under section SS oftho Housing and Town Improvement Ordinance to hear and determinean appeal from an order made by the Commissioner of tho MunicipalCouncil of Kuruncgala refusing to approve a building plan. Mr. E. W.Balasooriya of Kuruncgala had made an application to tho Commissionerof the Municipal Council of Kuruncgala for the approval of a buildingplan and the Commissioner had by letter dated 24th April, 1965, refusedto approve that plan. Thereupon the applicant appealed to the DistrictCourt of Kuruncgala from the order of the Municipal Commissioner.The latter filed objections and also informed the District Court that hehad vacated the office of Municipal Commissioner, Kuruncgala, witheffect from 17th October, 1964. The applicant then applied to tho DistrictCourt for the substitution of tho Municipal Council of Kuruncgala inplace of Mr. W. E. de Alwis who had vacated the office of MunicipalCommissioner, Kurunegala. The Municipal Council filed objectionsto the proposed substitution and after inquiry the learned District .Judgeinado order on 24.S.65, allowing the substitution. Thereupon theMunicipal Council applied to the District Court for the statement of acase for the opinion of the Supremo Court on the question of law whetherit was legally correct or competent to the District Court to order thesubstitution of the Municipal Council of Kuruncgala in place of the originalrespondent for the prosecution of the appeal of the appellant abovementioned under section 1C of the Housing and Town ImprovementOrdinance. The learned District Judge made order on 11th Korember,19G5, refusing the application of the Municipal Council. Thereafterthe Municipal Council mado an application to the Supreme Court for anorder on the District Court to state the aforesaid ease for tho opinionof tho Supremo Court, and that application was allowed by tho SupremeCourt. A case lias now been stated for the opinion of this Court by thelearned District Judge.
Under section 5 of the Housing and Town Improvement Ordinanceit is the Mayor of the Municipal Council of Kuruncgala who is empoweredto malic orders on applications for approval of building plans. Actingunder Section 14 (S) of the Municipal Councils Ordinance, tho Mayorof the Municipal Council of Kuruncgala. with the consent of that Council,delegated to tho Municipal Commissioner. Kuruncgala, with effect-from 6th April, 1964, Ills powers under section 5 of the Housing and TownImprovement Ordinance. Mr. W. E. de Alwis. Municipal Commissioner,Kuruncgala, exercising the powers delegated to him as aforesaid, madeorder by Ills letter dated 24.4.19G4 refusing to approve tho building plansubmitted by the aforesaid Mr. E. W. Balasooriya. In the appealpreferred to the District Court of Kuruncgala by Mr. Balasoori3ra therespondent was Mr. W. E. de Alwis, Municipal Commissioner, Kurunegala.When the latter vacated the office of Municipal Commissioner, Kurunegala,it was his successor in office who was .the proper person in his officialcapacity to have been substituted in placc-of Mr. W. E. de Alwis. The
Pvnchi Sinqho v. Bo'jahi Grajihilc Co., Ltd.
teamed District Judge has. misdirected himself in considering that theMunicipal Council of Kurunegala is the proper party to he substitutedin place of Mr. V. E. de Alwis- The Municipal Council, has no powerunder the Housing and Town Improvement Ordinance to deal with• applications for the approval of building plans and is therefore not anecessary party for the hearing and determination of Mr. Balasooriya’sappeal under Section 16 of the Housingand Town Improvement Ordinance.Our opinion is that the substitution of the Municipal Council ofKurunegala which has been ordered by the learned District Judge iscontrary to Jaw. We therefore set aside the order of substitution madeby the learned District Judge on 24.S.65 and direct the District Courtof Kurunegala to substitute the holder for the time being of the officeof Municipal Commissioner, Kurunegala, in place of Mr. W. E. de Alwis.
In this case we notice that Mr. W. E. de Alwis, Municipal Commissioner,Kurunegala, in his letter to 3Ir. Balasoorij-a refusing to approveMr. Balasooriya’s building plan has stated that the Municipal Council ofKurunegala at a special meeting held on 16.4.G4 decided to refuse theapproval of Mr. Balasooriya’s building plan and he has. also stated inthat letter that he was acting for and on behalf of the Municipal Councilof Kurunegala. In view of the aforesaid facts it is not surprising thatSir. Balasooriya was misled to believe that the authority who had beenresponsible for the refusal to approve Ms building plan was really theMunicipal Council of Kurunegala and had accordingly applied to theDistrict Court for the substitution of the Municipal Council of Kurunegalain place of Mr. W. E. de Alwis who had vacated the office of MunicipalCommissioner, Kurunegala, In view of these circumstances' we do notaward the Municipal Council of Kurunegala costs of the proceedingsin this Court.
Siva SuPKAMAjrtAir, J.—I agree.
. Order set aside.
E. W. BALASOORIYA, Petitioner, and MUNICIPAL COUNCIL, KURUNEGALA, Respondent