4(W1Seenivasagam v. Kirupamootihy
1954Present: Sansonl J.
S. V. SEEN IV AS AG AM et ail.. Petitioners, andS. KIRUPAMOORTHY, Respondent
S. C. 154—Application for a Writ of Mandamus
Town Councils Ordinance, No. 3 of 1946—Special meetings of Council—Section (2)—Its provisions are peremptory—By-laws—Scope of their effect—Mandamus-*-/4 Iternative remedy—Effect of such remedy in regard to issue ofwrit.
Mandamus lies to compel the Chairman of a Town Council to convene aspecial meeting of the Council in terms of section 39 (2) of the Town CouncilsOrdinance. Any by-law which is inconsistent with the provisions of the mainOrdinance must give way to the latter. Further, an alternative remedy whichis provided by a by-law but which is not as convenient, beneficial and effectualas mandamus cannot be a bar to the application for mandamus.
^Application for a writ of mandamus against the Chairman of theTown Council, Kankesanturai. ■
S. Nadesan, Q.C., with A. Nagendra, for the petitioners.
H. V. Perera, Q.C., with H. Wanigatunga, for the respondent.
Cur. adv. vult.
SANSONI J.—Seenivaaagam v. Kirupomoorthy4SI
October 20, 1954. Sansoni J.—
This is an application for a writ of mandamus. The respondent isthe (Chairman of the Town Council, Kankesanturai, and the petitionersare three members of that Council who complain that by their letterdated 6th February, 1953, they requested the respondent to convenea special meeting of the Council in terms of section 39 (2) of the TownCouncils Ordinance, No. 3 of 1946, to discuss a particular motion, but lieruled the motion out of order. The petitioners ask that the respondentbe commanded to convene a meeting to discuss the motion which wasin the following terms :—
“ As there is dissatisfaction among the ratepayers of this Councilthat there were bribery, corruption, threats and undue influence exer-cised during the election of the present Chairman of this Council, thisCouncil resolves to request the authorities concerned to appoint anindependent commission to inquire into the same and to take suitableaction against such offenders so as to maintain the prestige and dignityof this Council.”
The election of the respondent as Chairman took place at a meeting heldon 10th January, 1953.
Now section 39 of the Ordinance is in the following terms :—
The ordinary meetings of a Town Council shall be held for thedespatch of business upon such day or days in every month as may bofixed by the Council.
The Chuirman may convene a special meeting of the Council
whenever he may consider it desirable and shall, whenever requestedin writing by any two or more members of the Council to convene aspecial meeting for any purpose specified in such writing, forthwithconvene a special meeting for that purpose. Two days’ notice of theday appointed for any such special meeting shall be given to, or leftat the residence of, each member of the Council.-
Mr. Nadesan for the petitioners submitted that the respondent had nopower to rule the motion out of order. He based his argument on theperemptory wording of sub-section (2) which, he submitted, does notgive the Chairman any discretion at all in the matter. He stressed thechange of language from “ may ” to “ shall ” and he claimed that thesub-section was quite clear as to the duty cast on the Chairman once horeceived the request in writing from two or more members. He put hiscase so high as to claim that the purpose specified by the members neednot have anything to do with the administration or business of the Council,but in this part of his argument I think he went further than the necessityof the case demanded. Mr. H. V. Perera on the other hand submittedthat a special meeting w^s not fundamentally different from an ordinary^meeting, the only point of difference being that it was a meeting summonedout0of turn in order to discuss urgent business, but only business whichwas relevant to the powers and duties of a Town Council. In this viewof the matter he submitted that the by-laws made by this Council pub-
SANSONI J.—Scenivasagam t>. JZirupamoorthy
lished in the Government Gazette of June 30th, 1950, applied both toordinary and special meetings and he relied especially on by-laws 8 (a),
, (e) and (d)." ■
Those by-laws read as follows:—
(а)Every notice of a motion shall be in writing signed by the memberof the Council giving the notice. Unless such notice has been in thehands of the Secretary five clear days exclusive of Sundays and Govern-ment holidays before the meeting of the Council, the motion may notbe included in the agenda.
(б)All notices of motions shall be dated and numbered as received,and shall be entered by the Secretary upon the agenda in the orderin which they are received.
Before any notice of a motion is placed on the agenda paperit shall be submitted to the Chairman, who, if he be of opinion thatit is out of order, shall order that such motion shall not be includedin the agenda and shall cause the giver of the notice to be so informed.
Every motion of which notice is given shall be relevant to somequestion affecting the administration of the Council’s affairs.
If these by-laws apply to a special meeting such as the petitionersrequested the respondent to convene—and the purpose specified by thepetitioners was to discuss a particular motion—then notice of that motionhas to be given to the Secretary five clear days before the meeting, it has tobe submitted to the Chairman, if the Chairman is of the opinion that it wasout of order he can refuse to include it in the agenda, and his opinionis not ordinarily subject to review by this Court. Since the purpose ofthe special meeting was only to consider the petitioners’ motion, if therespondent in the exercise of his discretion, was entitled to rule it putof order there was, of course, nothing to be gained by summoning themeeting. It will thus be seen that the main point of dispute in thismatter is whether the respondent had a discretion or not in the matterof convening a special meeting for the purpose of discussing this particularmotion. The crucial question to be answered in determining this matteris whether by-laws 8 (a) to 8 (d) apply in this case or not, and on theanswer will depend the result of this application.
Now it seems to me that the words' of section 39 (2) are free of anyambiguity. They impose an obligation on the Chairman ; they vestin him no discretion ; and they provide the procedure to be followedwith regard to the giving of notice to the members of the Council. Wherethe meaning of the words of a statute are as clear and unambiguous asthose of this sub-section, I do not think it is open to a Court to restricttheir meaning. This does not mean that an abuse of the powers givento members cannot be checked if they should try to take undue advantageof this provision:Now with regard to the question whether by-laws
8 (a) to 8 (d) apply to a special meeting or not, it seems to me that theydo not, because all that section 39 (2) requires, once the Chairman hasreceived a written requisition specifying the purpose, is that two days’
SANSON! J.—Seenivasagam v. Kirupamoorthy
notice of the day appointed for the meeting should be given and that themooting should bo convened for the specified purpose. The purposeshould be specified in the notice to bo given to each member and there isno agenda paper such as by-law 8 requires the .Secretary to prepare l>efore-hand. The other steps which by-law 8 requires the Secretary to takoin such preparation therefore have no place where a special meeting iscontemplated. Many of the by-laws are desirable and even necessary,and apply to both special and general meetings, because they do notconflict with the provisions of the Ordinance ; their purpose is clearlyto ensure that meetings are conducted decently and in order. By-laws8 (a) to 8 (d) in my opinion apply only to motions which members wishto submit at ordinary meetings. They are inconsistent with the peremp-tory provisions of section 39 (2) because, (1) they require notice of a motionto be given to the Secretary, (2) they require five clear days’ notice, (3)they vest a discretion in the Chairman in that they confer on him theright to rofuso to include a motion in the agenda ; in short they lay downa procedure which is materially different from, and more onerous than,that stipulated in section 39 (2). Consequently the well settled rulethat by-laws which aro inconsistent with the provisions of the Ordinancewill have to give way to the latter will apply—De Silva v. De Silva1.It is of Homo interest to find that the Ordinance provides in sections 33and 35 for s]>ecial meetings to be convened for two particular purposes,viz., the election of a Chairman and the removal from office of a Chairman.Those sections do not contemplate anytliing more than notices bemgissued to the members indicating those particular purposes. Theycertainly do not contemplate compliance with by-laws 8 (a) to 8 (d) andI consider that the inapplicability of those by-laws to a meeting convenedunder Section 39 (2) is equally plain. It may well be that they werenever intended, by those who framed them, to apply to special meetings…
I should not wish it to be thought, however, that the words “ anypurpose ” in section 39 (2) include any purpose under the sun, for thatwould be to construe the sub-section as though it stood in isolation,ignoring the fact that it is part of the Ordinance, It is necessary togive those words a reasonable construction having regard to the otherprovisions of the Ordinance and, if necessary, to modify their meaningto avoid an absurdity. Although I am not dealing with such a case,suppose two or more members should request the Chairman to summona meeting to discuss a motion of an entirely scurrilous, or unlawful,nature, or one which could not even remotely concern a Town Council ;
I doubt if the Chairman would be bound to convene such a meeting,and it is unlikely that this Court would permit those members to availthoinsclves of a discretionary remedy iike Mandamus to attain such anobject. An argument put forward against the grant of tho presentapplication was that two or more members may require a special meetingto discuss some outrageous motion which no sensible Chairman couldplace before a meeting. As I have already indicated, the Court is notpowerless to prevent an abuse of its process particularly when the remedyis a discretionary one. There is the rule that a Court will take intoaccount the light in which the relators appear from their behaviour and
1 (1943) 44 N. L. R. 337.
8 AN SON I J.—iieenivdaagam V. Jdrupamoorth;/
conduct nnd motives and the consequences which the issue of a writof Mandamus will entail—Inasitamby v. Government Agent, N. P.x. Butthe motion which I am dealing with in this case cannot l>o said to beplainly one which floes not fall "within the ambit of the words “ anypurpose ”, giving those words a liberal construction in the light of theother provisions of the Ordinance. I am unable to agreo with theobjection raised on behalf of the respondent that the proposed motioncould not possibly come within the purposes contemplated by section31) (2). In my opinion the Chairman should have complied with therequest made of him and convened a special meeting.
Another objection raised for the respondent was that the petitionershad an alternative remedy which they should have exercised and thatthere was no need for them to seek the extraordinary remedy by way ofMandamus. The remedy referred to is that provided in by-law 1 (h)which reads :—
No business shall bo brought before or transacted at any meeting,ordinary or special, other than the business specified in the notice of themeeting, without tho permission of the Council.
anti by-law S (h) which readR :—
Before any motion of which previous notice has not been givenis moved in Council it shall be reduced to writing signed by tho moverand handed to the Secretary.
In regard to by-law 1 (b) it wTas submitted that the petitioners couldhave obtained the permission of; the Council at an ordinary meeting andthen moved the motion in question. But this pre-supposes that thoCouncil would have granted such permission. I cannot see why thisCourt should deprive the petitioners of a procedure which is clearlyindicated in the Ordinance itself. The objection to the procedure underby-laws 1(6) and 8 (h) is that there are obvious advantages in a procedurewhich requires that all the members of the Council should be given duonotice of the purpose of, and the business to be transacted at, a meeting ;such prior notice enables them to attend the meeting if they considerthe motion of sufficient importance, while they may not attend anordinary meeting the notice regarding which does not mention the parti-cular motion ; it also enables them to consider the motion beforehand.That is the reason of the rule which requires due notico to be given of everymeeting, and if special business is to be dom it is essential that timelyand adequate notice of it should be given to all the members. Tins pointhas not been considered in Goonesinghe v. Municipal Council of Colombo 2.The alternative remedy suggested should be equally convenient, boneficialand effectual—Perera v. Municipal Council, Colombo3, and it is not in thiscose.
For these reasons I consider that the application of the petitionersshould be allowed writh costs.
1 (1932) 34 X. r,. n. S3.* (1944) IS -V. h. R. So.
(1947) 48 N. L.:R. 60.
S. V. SEENIVASAGAM et al , Petitioners , and S. KIRUPAMOORTHY, Respondent
4(W1Seenivasagam v. Kirupamootihy