DE KRETSER .T.—A. E. Gooncsinghe r. The .Mayor of Colombo.
1944Present: de Kretser J.
A. E. GOONESINGHE *. THE MAYOR OF COLOMBO.
N the matter of an application for a writ of mandamus on the Mayor ofColombo.
Municipal Council of Colombo—General meeting—Right of member to bringforward resolution although not placed on the agenda—MunicipalCouncils Ordinance (Cap. 193), s. 85—Writ of mandamus—Must beeffectual—Effect of delay or alternative remedy.
Section 85 of the Municipal Councils Ordinance, read with certainrules passed under section 109, gives a member of the Colombo MunicipalConncil the right to bring forward, at a general meeting, a resolution,of which he has given three clear days' notice, to the Secretary, despitethe fact that the Chairman has, prior to the date of the meeting, expressedthe opinion that, the resolution is out of order and directed that it shouldnot be placed on the agenda.
A writ of mandamus will not be granted to place a motion on theagenda of a meeting which has already been held.
A mandamus will not be issued when another remedy is available orwhen it appears that it would be futile in its result or when the applicationfor it is belated.
PPLICATION for a writ of mandamus on the Mayor of the ColomboMunicipal Council by the petitioner who is a member of the Council.
C. S. B. Kumarakulasingham (with him M. M. Knmarakulasingham)for petitioner.
H. V. Perera, K.C. (with him N. K. Ghoksy), for the respondent.
Cur. adv. vvlt.
December 19, 1944. de Kretser J.—
This is an application for a mandam.ujs on the Mayor of the Colombo’Municipal Council and the prayer is that this Court may issue a writ inthe nature of a mandamus on the respondent " directing him to placethe said motion on the agenda for a consideration by the said Council ”.
Many of the facts leading up to this application are not in dispute,,some of them are much in dispute. I propose to confine myself only tosuch facts as are necessary for the purpose of my order. I do not proposeto deal at greater length with this matter than is absolutely necessary.
It would appear that the Municipal Council undertook the collecting"of contributions due on the War Damage Ordinance and that they wereto be paid 6 per cent, of the collection by way of remuneration. Theamount which it received by way of remuneration amounted toRs. 29,953.41. According to. a minute by the Treasurer the expenditure wasRs. 24,688.92. That left a balance of Rs! 5,264.49. The petitionerin his petition states, however, that the sum was Rs. 7,746.37.
By a resolution of the Council at the time they undertook the collection,any surplus, after meeting the expenses, was to be credited to revenue.When, therefore the surplus was found one would imagine it wouldautomatically pass to revenue. However, some question seems to havearisen regarding the use of this surplus that should have been creditedto revenue and the Commissioner of War Risk Insurance was of opinion
DE KKETSER J.—A. E. Gooneeinghe v. The Mayor of Colombo.
that it would not be proper for the Council to make a profit on thetransaction and proposed that the amount should be distributed amongthe contributors. The Commissioner of the Municipal Council agreedwith this opinion but thought that the distribution of it would involveconsiderable labour and expense. He accordingly recommended theremuneration suggested by the Treasurer, viz., that the money should be'distributed among certain officers and clerks who had done extra work.Apparently there had been a temporary staff who had been employedfor the work who did not get the benefit of the largesse.
The matter came up for consideration by the Finance Committee,in which the petitioner seems to form an unfortunate and conspicuousminority. At the meeting a member enquired why the Commissionerof the Municipal Council was not sharing in the money and according tothe affidavits—all but the petitioner’s—it was agreed that he shouldhave a month’s salary. According to the petitioner, however, there wasno such suggestion and being unaware of the resolution which creditedthis money to revenue and finding that the money was to be paid todeserving clerks he made no protest.
On the following day the Treasurer duly minuted to the Secretarywho ought to have been present at the Committee meeting, that hisprevious recommendation had been amended ana he forwarded anamended schedule.
Then the recommendation of the Finance Committee came before thewhole Council on June 7. and the petitioner was present at the meeting.He states that he was unaware that the Commissioner was also to beremunerated and when the item came up that the Treasurer’s suggestionrecommended by the Finance Committee should be passed he believedthat- the money would be distributed among the deserving officers. Fiveof the gentlemen have sworn to the contrary. The recommendationof the Finance Committee was adopted. The payment was made onthat footing.
When that happened the petitioner was quite surprised and he calledfor the relevant files and thereupon came to the conclusion that therehad been manipulation of the documents. He then gave notice onAugust 31, 1944, of a resolution in the following terms—
" That the extra payment of Rs. 2,000.06 to the Municipal Com-missioner was not contemplated when the Council adopted theMunicipal Treasurer’s suggestions at the meeting of June 7, for thedistribution of the remuneration to the officers of the Cauncil who wereengaged in War Risks Insurance and that this sum be collected fromhim and remitted to revenue ”,
He forwarded his motion with a covering letter giving notice that hewould move it at a general meeting to be held on September 6, 1944.He obtained, the signatures of five other members to the motion as hefeared, he says, that the resolution may be considered one rescinding theresolution passed on June 7. Quite clearly he did not intend it to haveany such effect, and he was only meeting any possible objection thatmight arise. His complaint was that the Council had not contemplatedthe payment to the Commissioner.
DE KRET8EB 3.—A. E. Goonesinghc v. Th<• Mayor of Colovibo.
However, on this resolution reaching the Secretary, in accordance withby-law 10 (c) he placed the matter before the Chairman who was ofopinion that the resolution was out of order and he ordered that it shouldnot be placed on the agenda and at the same time in terms of the rulecaused the petitioner to be informed of his decision. The first groundgiven was that the petitioner’s motion was not correct in stating thefacts, and the second ground was that the motion did not seek torescind any resolution and that it did not come within the provisions-of rule 10 (c).
The letter is dated September 2, 1944, the meeting came on September0. The petitioner made no attempt to move his resolution at the meeting-and in November he filed his present papers.
Now, there is more than one ground on which this application is boundto foil, whatever the facts may be. The petitioner’s- application refersto his motion not being placed on the agenda paper of- the general meetingheld on September 6. 1944. That meeting is long passed and cannot bereheld. This Court cannot issue a mandamwt merely to find it futile.Secondly there has been a delay that has not been explained—-at least adelay of two months. Thirdly under the Municipal Councils Ordinance-,section 85, the petitioner had the right to bring forward his resolutionin Council despite the opinion expressed by the Chairman. He had,therefore, a remedy open to him which he did not avail himself of. It issought to get over this difficulty by stating that the Chairman had noright to rule out the motion in advance and since he did that it wasuseless on the petitioner's part to move the resolution which would alsobe ruled out. I do not- agree with this contention.
Section 82 of the Municipal Councils Ordinance requires the Chairmanto cause a printed ot written notice of every meeting and of the business'of the meeting to be served on each member at least 4 days before themeeting. He is, therefore, the person responsible for giving due noticeof the agenda. There is. however, provision made in section 85 formatters being considered that do not appear on the agenda. Now byvhe rules, which have the virtue of law by reason of section 109 of theOrdinance, three clear days’ notice of every motion should be given to theSecretary and unless it is given the motion will not be included on theagenda. The agenda has to go out 4 days before the meeting is held.Why notice of a motion should be given three days before the meetingis a mystery which nobody has attempted to solve. The due noticebeing given, the Seereary is required by rule 10 (5) to date and numbereach of such notices and to enter them in the order in which they arereceived. Section 10 (c) requires him to submit notices of motion to theChairman before they are placed on the agenda. The two rules are notinconsistent as far as I can see. One has to bear in mind they are noticesof motions and the motions themselves are moved at a meeting. TheChairman may be of opinion that a motion is out of order and mayinform the giver of the notice, but nevertheless the motion should beon the agenda and should come before the meeting. The mover will themhave notice of the attitude of the Chairman and he could abandon themotion or successfully meet the Chairman’s opposition. As a matter of
Excite Inspector, Kandy and Puncliimahatmaya.
fact rule 10 (c) gives the Chairman the light to express an opinion regardinga notice of motion, not regarding the motion itself—whether any dis-tinction is intended I do not know. Nobody was able to tell me how theChairman guided himself in deciding that a notice of motion was out oforder. There is rule 10 (d) which says—“ Every notice of motion shallbe relevant to some question affecting the Municipal Council of ColomboThat would be one guide. Rule 10 (e) says—“ No motion to rescind anyresolution which has been passed, etc.”. That would be another guide.But the Chairman in this particular case chose to order the matter outon the ground that facts were not correctly stated. If the facts were not-correctly stated the body who could properly have dealt with it wouldhave been the body to which the appeal was made, namely, the membersof the Municipal Council.
However, it is unnecessary to go into these details, except in passing toexpress an opinion on this matter. As I said before the application mustbe lefused because another remedy is available, because it is belated andbecause this Court cannot now pass an order which would be futile. Inthis connection I refer to Halsbury’s Laws of England, Vol. 0 (2nd ed.)at para. 1308.»
, The application is refused. I shall fix the costs tomorrow.
December 20. 1944.
Having heard Cotinsel T fix the costs to be paid by petitioner to therespondent at a sum of Rs. 1,500.
A. E. GOONESINGHE v. THE MAYOR OF COLOMBO