070-NLR-NLR-V-72-K.-SHANMUGAM-Appellant-and-THE-MUNICIPAL-COMMISSIONER-JAFFNA-Respondent.pdf
328T. S. F-ERN’ANDO, A.C.J.—Sfianmugam,v. The Municipal
Commissioner, Jaffna
1967Present: T. S. Fernando, A.C.J.K. SH ANMUGAM, Appellant, and THE MUNICIPAL COMMISSIONER,JAFFNA, RespondentS. G. 921(67 (with Application in Revision No. 3S5 of 1967)—M. C…. Jaffna, 3178Municipal Council—Municipal accounts—Surcharge—Non-payment oj amountsurcharged—Whether it is an “ offence ”—Recovery of surcharge—Procedure—Effect thereon oj dissolution of Council—Municipal Councils Ordinance(Cap. 252), ss. 34, 172, 223 (/), 226 (3), 226 ( 6), 277, 256 (3), 308, 327.
Whcro an order of surcharge in respect of a sum of money is made againsta person under section 220 (1) of tho Municipal Councils Ordinance, tho non-payment of the amount surcharged does not constitute an offence contemplatedin section 30S of the Ordinance.
Where the Municipal Commissioner initiates proceedings in tho Magistrate'sCourt under section 228(6) ofthoMunicipal Councils Ordinance for the recoveryof the surcharge as a f no of court, tho proceedings may bo continued by theMunicipal Commissioner even if the Municipal Council happens to be dissolvedsubsequently by reason of on Order made by the Minister in terms of section277 of tho Ordinance. It cannot be contended that, with the dissolution ofthe Municipal Council, tho Municipal Commissioner himself ceases to functionas such.
.A.PPEAL, with application in revision, from a judgment of theMagistrate’s Court, Jaffna.
C. Thiagalmgam, Q.C. with L. IF. Alhulathmudali, for the appellant(petitioner).
S. Sharvananda, with K. Kanag-lsivaran, for the respondent.
Cur.adv.vv.lt.
November 25, 1967. T. S. Fernando, A.C.J.—
The appellant who is also the petitioner on the application in revisionwas at one time the Municipal Commissioner of the Municipal Councilof Jaffna, and there is no dispute that the Auditor-General, acting interms of section 226 (1) of . the Municipal Councils Ordinance (Cap. 252)made on 23rd March 1962 as against him an order of surcharge in respectof a sum of Rs. 3,466 05. It would appear that the appellant failedto appeal to the Minister within the time provided for by section 226 (3)of the same Ordinance, and it- was stated at the argument that anapplication to this Court designed to obtain a hearing of the defectiveappeal was itself unsuccessful.
T. S. FERNANDO, A.G.J.—Shanmugam v. The Municipal329
Commissioner, Jaffna
On 10th March I960, the then Municipal Commissioner, Jaffna,instituted proceedings in the Magistrate’s Court to recover the sumsurcharged together with a further sum of Rs. 300 said to hare beenincurred by way of costs and expenses. In spite of several objectionsraised by the appellant before the Magistrate, the latter made orderon 13th July 1967 that the sum of Rs. 3,766 05 be recovered from theappellant as if it were a fine—vide section 226 (6).
It was conceded that an appeal against the Magistrate’s order of13th July 1967 was not competent, and I therefore dismissed theappeal.
On the application presented seeking a revision of the order againstwhich an appeal was not competent, Mr. Thiagalingam raised two points.He first sought for the petitioner a way of escape in section 30S of theOrdinance which imposes a period of limitation for—thc-entertainmcntof complaints in respect of offences. I was quite unable to agree thatnon-payment of an amount surcharged in terms of section 226constitutes an offence contemplated in the said section 308.
The first argument of Mr. Thiagalingam referred to in the aboveparagraph having failed, he then addressed his second argument whichwas based on the dissolution of the Municipal Council of Jaffna on 29thMay 1966 by Order made bjr the Minister of Local Government actingin terms of section 277 of the Ordinance. Shortly put, his argumentwas that, with the dissolution of the Municipal Council, the MunicipalCommissioner himself ceased to function as such. The dissolutionhaving taken place after the Municipal Commissioner initiated thisproceeding in Court, his submission was that there is now no complainanton the record who is competent to recover the surcharge as a fine ofcourt. He sought to derive some support for his argument in thedefinition of “ Commissioner ” contained in the interpretation section327 of the Ordinance, bis point being that, as soon as the Council ceasedto exist, the Commissioner himself loses his functionary existence.This argument ignored the effect of many sections of the MunicipalCouncils Ordinance. For example, section 2S6 (3) declares that, duringthe period elapsing between the dissolution of a Council under section2S4 and the constitution of a new Council, the Commissioner shallexercise all the powers etc. of the dissolved Council. Again, even inthe case of a dissolution by reason of an Order under section 277,between the time of dissolution and the appointment of a SpecialCommissioner, all the powers etc. of the Council and even of the Mayorand the Deputy-Ma}’or are exercisable by the Commissioner—section277 (4). By section 34 a Municipal Council is declared a corporationwith perpetual succession and a common seal which remains at all timesin the custody of the Commissioner. During the periods contemplatedin section 277 (4), contracts may well have to be entered into, and theCommissioner is fully competent to do so as being in the exercise of apart of the power of the Council in spite of its dissolution. Moreover,.
-330TENXEKOOX, J.—Samson v. Inspector ojPolice, Maradona
: section 172 entrusts responsibility for the custody of all books etc. ofthe Council solely to the Commissioner. It is unnecessary to undertakean examination of all the provisions of the Ordinance in a search forother examples. It is sufficient to state that section 226 (6) itselfimposes the duty of recovering the amounts surcharged not on theCouncil, but on the Commissioner alone. I vas unable to find anymerit even in the second argument. I
I have indicated shortly the reasons why at the conclusion of theargument I made order that the application in revision be alsodismissed.
Appeal and application in revision dismissed„