040-NLR-NLR-V-73-A.-T.-DURALAPPAH-Appellant-and-THE-MUNICIPAL-COMMISSIONER-JAFFNA-Respondent.pdf
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Duraiappah v. Municipal Commissioner, Jaffna
1969Present: de Kretser, J.A. T. DURAIAPPAH, Appellant, and THE MUNICIPALCOMMISSIONER, JAFFNA, RespondentS.0.19/69, with Application in Revision—M.C. Jaffna, 3521
Municipal Councils Ordinance {Cap. 252)—Section 226 (o)—Recovery thereunder of asurcharge—Ministerial nature of Magistrate’s function.
Where a Municipal Commissioner makes an application to a Magistrate interma of section 226 (6) of the Municipal Councils Ordinance to recover a sumcertified by an auditor to be due from a person as o surcharge, the Court actsin an administrative capacity and has no jurisdiction to hold any judicialinquiry relating to the surcharge.
A.PPEAL- and application in revision against an order of theMagistrate’s Court,. Jaffna.
C. Chellappah, for the petitioner and appellant.
C. Ranganathan, Q.Q., with K. Kanaga-Iswaran, for the respondent.
Cur. adv. vult.
DB KRETSER, J.—Duraiappah «i. Municipal Commissioner, Jaffna 231
December 13,1969. de Kretser, J.—
The Municipal Commissioner, Jaffna, filed an Application in terms ofSection 226 (6) of the Municipal Councils Ordinance, Cap. 252, Volume 9of the Legislative Enactments in the Magistrate’s Court of Jaffna.
That Application was supported by the Affidavit of the Commissionersetting out the facts which gave the Magistrate jurisdiction in the matter.Once the Magistrate accepted the correctness of those facts all that theMagistrate had to do was to make the Order necessary for the recovery ofthe Sum stated as due as if it were a Fine, i.e., he had to order the issue of aDistress Warrant in terms of Section 312 (2) of the. Criminal ProcedureCode. Probably due to inadvertence the Municipal Commissioner hadasked the Magistrate (n) to have copies of the petition, affidavit, and otherannexurcs served on the Respondent and (b) to summon the Respondentto Court and order him to pay into Court to the credit of the MunicipalCommissioner, Jaffna, theSum of Rs. 29,172 50 in addition to asking theMagistrate to recover the said sum as if it was a fine imposed by the Courton the Respondent.
The Magistrate issued the Notices asked for and the result was that therewere 2 Inquiries. The first was into a preliminary objection that theMunicipal Commissioner had no power to make this Application as theMunicipal Commissioner had ceased to exist with the dissolution of theMunicipal Council. The Magistrate in a considered order which wasdelivered on 7.5.67 overruled that objection and thereafter there wasan Inquiry into the other matters which were urged by Counsel for thepresent Appellant. The Magistrate had set thoso matters out asfollows :—
that the amount alleged to have been paid by the respondent was
not an item of accounting which was contrary to law ;
that the person who filed the surcharge certificate P2A did not
hold the audit, and that some person unauthorised in law haddone it, and that the surcharge certificate P1A was bad inlaw;
that the averment that the respondent had made no representations
under Section 225 {2) is false ;
that the respondent had in fact admitted an appeal under Section
226 (3) to the Minister, and that the Hon’ble the Minister hadnot made any order on the appeal, and that the appeal was stillpending;
that no loss or damage had in any event been caused to the Jaffna
Municipal Council, and so the surcharge certificate had beenwrongly issued.
232 E>E KRETSER, J.—Duraiapjxih v. Municipal Commissioner, Jaffna
He showed a curious appreciation of the fact that he had been giventhe opportunity of coming before a Court by pointing out that the Muni-cipal Commissioner had no right to ask for anything other than the issueof a Distress Warrant for the recovery of the amount alleged to be due.He apparently submitted that in as much as no Distress Warrant wasprayed for no Distress Warrant could issue apparently losing sight of thefact that the Commissioner had asked for the recovery of the Sum ofmoney as a Fine and that it is by the issue of Distress Warrants thatsuch a recovery is made.
I entirely agree with the submission that the Commissioner should haveasked the Magistrate only to recover the amount as a Fine and need nothave asked for summons, etc., on the Respondent to the Appl ication. TheMagistrate following the decision in 61 N.L.R. at Pago 237 in which Justice
T.S. Fernando held “ it is not open to the Magistrate to enter upon anInquiry to decide the question whether an Audit has been carried oiitproperly ” and cited the dictum of Schneider J. in The Commissioner ofStamps v. Akamadulevai1 “The Magistrate’s Court is only invoked forthe purpose of recovering the amount already determined. It has nojurisdiction over the question that amount is rightly due or not ” andEnnis J. stated in Gunawardena v. Gunasekera2 “ it seems to me thatSection 54 (2) (k) of the Village Communities Ordinance merely providesadministrative machinery for recovery of sums due under the Ordinanceupon Certificates of the Auditor ”, or Bertram C. J. said in the same Casethe provision “ merely empowers and directs the Magistrate to do anExecutive Act, viz., to execute the Order of the Authority making it ”(It is necessary to note that the terms of Section 54 (2) (h) of the V.C.Ordinance is in identical terms as Section 226 (6) of the Municipal CouncilsOrdinance) held that the Court had no jurisdiction to hold an Inquiryinto the matters urged by the Respondent (Duraiappah). He gave theRespondent time to pay the money and stated that if he failed to do sothe machinery available would be brought into operation to recover themoney.
Duraiappah the Respondent to the Application appealed from this Order.No appeal lies against such an Order (vide 24 N.L.R. 255) and the Appealis therefore rejected. Apparently realising that there is no Appeal fromthe Order, Papers in Revision were filed. I see no reason to give relief tothe Petitioner in Revision. The Magistrate will now take steps to recoverthe Sum due as provided for by Section 312 of the Criminal ProcedureCode if the Petitioner has not taken the advantage of the concessiongiven him by the Magistrate and paid the amount as a Fine.
The Appeal is rejected, the Application in Revision is refused.
,Appeal and application in revision dismissed.
* (1922) 24 N. L. B. 255.» (1922) 1 T. L. B. 90.