052-SLLR-SLLR-2003-V-2-ABDUL-BAIZ-CHAIRMAN-URBAN-COUNCIL-PUTTALAM-v.-NAWINNA-CHIEF-MINISTER-N.pdf
Abdul Baiz, Chairman, Urban Council, Puttalam v Nawinna, Chief Minister,
CA North Western Province and others (Shiranee Tiiakawardena J. (P/CA)) ^37
ABDUL BAIZ
CHAIRMAN, URBAN COUNCIL, PUTTALAM
v
NAWINNA, CHIEF MINISTER, NORTH WESTERN PROVINCE
AND OTHERS
COURT OF APPEALTILAKAWARDENA, J. (P/CA) ANDWIJEYARATNE, J.
CA 1320/2001SEPTEMBER 8, 2003
Urban Councils Ordinance, No. 61 of 1931, sections, 184, and 184(1) a -Local Authorities Powers of Supervision and Administration Statute, No. 1 of1996 (NWP) – Warrant issued – Inquiry – Term of 3 months – Report ten-dered outside 3 month period – Validity – Commissions of Inquiry Act, section4 – Pradeshiya Sabhas Act, No. 15 of 1987, sections 185 (2) 3 (a). (i) (ii) and(Hi), and 187 – Provincial Councils (Special Provisions) Act, No. 12 of 1989 -Compensation.
The petitioner sought to quash the order made by the 1st respondent where-by he had suspended the petitioner. It was contended that the warrant issuedfor an inquiry to be held by the 4th respondent for a term of 3 months wasinvalid in as much as the inquiry and the order had .been made outside theperiod of 3 months stipulated in the warrant and therefore the 4th respondentwas functus, and that the report was bad in law and the 1 st respondent couldnot have acted upon the findings in terms of the order aforesaid.
Held:
(i) Time is not of essence in the warrant that has been issued, the refer-ence to time is merely discretionary and not mandatory.
APPLICATION for a writ of certiorari.
Case referred to:
Mohamed Ishakv Morais – (1996) 1 Sri LR 145
N.M. Shahied with A.S.M. Rafees and M.I.M. Azver for petitioner.
Wijedasa Rajapakse, P.C., with Rasika Dissanayake for 1st and 2nd respon-dents.
Y.J.W. Wijayatilake, Deputy Solicitor-General for Attorney-General.
Cpr.adv. vult.
338
Sri Lanka Law Reports
12003J 2 Sri L.R
November 3, 2003
SHIRANEE TILAKAWARDENA, J. (P/CA)
The petitioner has preferred this application seeking a writ of oicertiorari to quash the order marked Y5 made by the 1st respon-dent whereby he has suspended the petitioner which order waspublished in Government Gazette bearing No. 1192/29 dated 13thof July 2001. He had also sought to restrain the 3rd respondentfrom taking any steps under the Local Authorities Elections Act toappoint a member to the Puttalam Urban Council in place of thepetitioner.
At the hearing of this application parties agreed that this casewould be confined to one single issue which was whether the war- 10rant issued by the Minister of Local Administration of the NorthWestern Provincial Council for an inquiry to be held by the 4threspondent for a term of three months in terms of section 184 of theUrban Councils Ordinance No. 61 of 1931 as amended read withLocal Authorities Powers of Supervision and Administrative StatuteNo. 1 of 1990 of the North Western Province was valid in law in somuch as the inquiry and the order had been made outside this peri-od of three months, which had been stipulated in the said warrant.
It is conceded that the appointment of the 4th respondent to hearand inquire into this matter had been made by p13 and had been 20made on the 28th of March 2000 and the original warrant requiredthe 4th respondent to report in three months of such notification.Document X, it was also admitted that the inquiry had commencedon the 26th of June 2000 and that there had been two extensionsthat had been granted. It was conceded that though there was nospecific provision for extension of time under the Commission ofInquiries Act section 4 when a warrant was issued even by thePresident that the time could either be enlarged or extended by theAppointing Authority. Indeed in section 184 (i) (a) of the aforesaidUrban Councils Ordinance the lacuna in the Ordinance itself was to 30be resolved by reference to the powers of a Commission of Inquiryappointed under the Commissions of Inquiry Act. It appears that interms of this provision the period was extended on 27/06/2000 by1R1 and 27/09/2000 by 1R2. The period therefore on the exten-sion admittedly expired on 27/12/2000. It is also admitted by par-ties that the last date of inquiry was 08/03/2001 and the report of
Abdul Baiz, Chairman, Urban Council, Puttalam v Nawinna, Chief Minister,
CA North Western Province and others (Shiranee Tilakawardena J. (P/CA)) ^39
the Judicial Officer though not dated was after the expiry of threemonths period 27/12/2000 (since the written submissions had beenaccepted on 05/03/2001).
The graveman of the argument of the counsel for the petition-er therefore was that the 4th respondent was functus after 27th ofDecember 2000 and the report is therefore bad in law and that the1st respondent could therefore not have acted upon the findingsmade in terms of the order aforesaid.
The two matters therefore that this Court has to decide uponare whether (1) the time is of essence in holding of such inquiries(2) whether the rules setting the time limits are one which is direc-tory or mandatory and if it is merely directory then the conse-quences of making such order from outside such period wouldmerely be an irregularity which could not render the order functus.
In this context, the decision of Mohamed Ishakv Morais0) hasmuch relevance. In terms of this judgment specific reference hadbeen made regarding the time limit which was given to conclude aninquiry made in terms of the Pradeshiya Sabhas Act, No. 15 of1987, section 185 (2), (3) and section 185 (3) (a) (i), (ii) and (iii)read with section 2(1) of the Provincial Councils (SpecialProvisions) Act, No. 12 of 1989. A reading of these acts shows thatthe wording is very similar to that contained in the present act thatis being invoked by the parties in this case.
In that case it had been stated that “the requirement to deliverthe order in three months in section 185 of the Act, No. 15 of 1987is directory and not mandatory. The petitioner having delayed theinquiry by taking various objections cannot complain of the trans-gression of the temporary span”. In this case too if the attendancesheet which has been annexed with the order from 27/06/2000 until03/05/2001 shows that the petitioner had hardly attended theinquiry, though the respondent had attended the inquiry on everysingle date. It also shows that even the counsel for the petitionerhad failed and neglected to appear on more than 6 dates ofinquiries. It is also relevant that challenge to the appointment hadnot been made at the very first opportunity when such inquiry wasextended nor was it referred to until the very end of the case. In allthese circumstances of this case we find that there is no merit in
40
50
60
70
340
Sri Lanka Law Reports
[2003J 2 Sri L.R
the submissions of the petitioner that at the time of the making ofthe report by the 4th respondent he was functus as we hold that thetime is not of essence in the warrant that has been issued in thiscase and furthermore specially in view of the several extensionsthat have been made and furthermore that in any event the refer-ence to time is merely directory and not mandatory. Accordingly atthe time of the rendering of the order that the 4th respondent was sonot functus and such submission by the petitioner is untenable inlaw.
It is also relevant to mention at this stage that at the hearing ofthe argument counsel appearing for the petitioner conceded that
S.C. Application 407/01 (F/R) had also been filed on the same mat-ter. This has not been pleaded in the petition of the petitioner andeven though the S.C. Application had been filed and sought to chal-lenge the same order Y5 and had been dated the 30th of July 2001such application was subsequently dismissed by the SupremeCourt. The petitioner has also filed an application bearing No. 90370/2000 in this Court but that application too has been withdrawn.
In the circumstances of this case the only ground that had beenurged by counsel before this Court was that he was invoking thewrit jurisdiction of this Court on the basis that the report tenderedby the 4th respondent was made at a time that the 4th respondentwas functus and therefore that the 1st respondent had no powersto act upon such report is untenable. Therefore in law such wouldnot be a basis for challenge of the order of the 1st respondentreferred to as Y5. Accordingly the application is dismissed withcosts in a sum of Rs. 5000/-.100
WIJEYARATNE, J.
Application dismissed.
I agree.