022-NLR-NLR-V-56-B.-N.-COORAY-Petitioners-and-C.-T.-GRERO-Respondent.pdf
Colt ay i. Qrero
87
1954Present: Swan J.
N. CO OR AY, Petitioner, and C. T. GRJSllO, Respondent
S. C. 140—Application for a HVt< of Mandamus
Municipal Council of Colombo—General meeting—Notice of motion by in ember—
Chairman's refusal to include motion in agenda—Remedy of member—Municipal
Councils Ordinance, No. 29 of 1947—Section 21—By-Law 10—Amending
Act No. 39 of 1961, s. IS (2)—Mandamus—Effect of alternative remedy—
Necessary parties.
A writ of mandamus is not available where there is another remedy opento the party seeking it. The alternative remedy need not be an action at law ;it may be by way of an appeal to a forum domesticutn.
The petitioner, a member of the Colombo Municipal Council, gave notice ofa motion for the removal of the respondent from the office of Mayor, and desiredthat the matter should be put up for discussion at a general meeting of theCouncil. The respondent, who was the Chairman of the Council, purporting toact under By-Law 10 (c), ruled that the motion was out of order, and theSecretary so informed the petitioner. The Secretary accordingly omitted tos placo the motion on the Agenda of the meeting. On an application by thepetitioner for a writ of mandamus on the Mayor—
Held, that mandamus was not available for the reason that the petitioner hadon alternative remedy, namely, an appeal to the Council itself under section 21of the Municipal Councils Ordinance.
Held further, (i) that if mandamus was available the proper party respondentto the application was the Mayor and not the Secretary.
that the discretion of the Mayor under By-Law 10 to allow or disallow amotion must not be exercised arbitrarily.
that the proposed motion was a question affecting the Municipal Adminis-tration of Colombo within the meaning of By-Law 10 (ci).
that a writ of mandamus, if available, could be issued although thedate of the meeting had already passed.
^LpPLICATION for a writ of mandamus on the Mayor of the ColomboMunicipal Council.
Izzadeen Mohamed, with A. Kamalanathan and A. S. Vaniyasooriar,.for the jtetitioner.
II. 1'. Perera, Q.C., with N. M. de Silva and Eric LaBrooy, for therespondent.
Cur. ado. vult.
88
SWAN J.—Oooray v/Otero
July 7, 1953. Swan J.—.•
This is an application for a writ of mandamus on the respondent whois the Mayor of the Colombo Municipal Council. The petitioner is aduly elected member of the Council and he states that, in the exercise ofhis rights as such Councillor he, on the 12th March, 1953, gave notice ofthe following motion :—
“ This Council resolves that Mr. C. T. Grero be removed from the
Office of Mayor.”
He desired that the matter should be put up for discussion at themeeting to be held on 17th March, 1953. His complaint is that therespondent wrongfully ruled that the motion was out of order.
The conduct of the business of the Council is regulated by By-lawswhich were duly framed for this purpose under the old Municipal CouncilsOrdinance of 1910 and which have been kept alive under the variousamending and replacing ordinances and finally made operative underthe enactment now in force, namely, Ordinance 29 of 1947 by virtue of“two Notifications published in Government Gazettes Nos. 9,773 of September24, 1947 and 9,875 of June 8, 1948.
Under this Ordinance the Mayor was to hold office for one year, butby the Amending Act 39 of 1951 that period of the Mayor’s office wasextended to be co-terminous with the life of the Council. The Ordinancemade provision for the removal of the Mayor or Deputy Mayor fromoffice on a resolution for such removal by a certain majority of the totalnumber of Councillors. This provision has been slightly altered, i.e., asTegards the requisite majority, by the Amending Act referred to abovewhich provides as follows :—.
Section 15 (2)
“ A Mayor or Deputy Mayor may be removed from office on aresolution for such removal duly passed at any meeting of the Councilby not less than one half of the total number of Councillors and con-firmed by a resolution similarly passed at the next Meeting of theCouncil. Upon the date of the confirmation of any resolution forremoval, the Mayor or Deputy Mayor affected by such resolutionshall be deemed to vacate his office as such.”
T shall at this stage quote the relevant portions of By-Law 10 :—
“ (a) Every notice of motion shall be in writing signed by the Councillorgiving the notice. Unless such notice shall be in the handsof the Secretary three clear days, exclusive of Sundays andGovernment holidays, before the Meeting of the Council, themotion shall not be included in the Agenda.
All notices of motion shall be dated and numbered as received,. and shall be entered by the Secretary upon the Agenda Paperin the order in which they are received.
SWAN J.—Cooray v. Qrero
89
Before any notice of motion is placed on the Agenda Paper it
Bhall be submitted to the Chairman who, if he be of opinionthat it is out of order, shall cause the giver of the Notice to1be so informed.•
Every Notice of Motion shall be relevant to some question
affecting the Municipal Administration of Colombo.
No motion to rescind any resolution which has been passed
within the preceding six months nor any motion to the sameeffect as any motion which has been negatived within thepreceding six months shall be in order, unless notice thereofshall have been given and specified in the Agenda, and thenotice shall bear, in addition to the signature of the Councillorwho proposes the motion, the signatures of five otherCouncillors ; and when such motion has been disposed of itshall not be competent for any Councillor to propose a similarmotion within a further period of six months.
(/) •
(ff)
—.
Immediately after the motions of which due notice has been
given have been disposed of a Councillor may propose a motionasking the permission of Council to bring forward a motion ofwhich due notice has not been given, and-in such case he willhand to the >Secretary a copy of such motion.”
The respondent, purporting to act in the exercise of the powers vestedin him under By-Law 10 (c), ruled that the said motion was out of orderand the Secretary by his letter dated 13th March, 1953, so informed thepetitioner.
The petitioner states that the refusal of the Mayor to place the motionon the Agenda of the Meeting to be held on 17thMarch, 1953, was wrongfuland unlawful, and he prays that this Court should command the Mayorto place it on the Agenda of the meeting next to be held after order ismade on this application.-
The respondent has filed an affidavit in which he states that he ruledout the motion in question in the bona-fide belief that the motion wasout of order for the following reasons :—
“ (a) That under the local Authorities (Election of Officials) Act,No. 39 of 1951, the term of office of the Mayor had beenextended until the expiration of the term of office of theCouncillors then in office, and that the Mayor and DeputyMayor were not subject to removal until the end of that period.”
SWAN J.—Caoray t»4 Gh-ero
“ ^6) On or about the 1st day’ of February, 1952, the Council haddiBCUBsed a motion referred to in' para. 11 of the petition whichmotion was defeated at the said meeting. I had done nothingnor had I omitted to do anything in the performance of myduties as Mayor to justify the petitioner giving notice of amotion in identical terms as that which was defeated, andas no reason had been given and no reference made to anyact or omission of mine as Mayor subsequent to the defeat ofthe earlier motion, I was of opinion that the motion wasfrivolous and out of order.”
Mr. H. V. Perera appearing for the respondent says that, inasmuoh as.a discretion is vested in the Mayor to allow or disallow a motion, thisCourt cannot review the propriety of that discretion. He also submits,in addition to the reasons set out by the respondent in his affidavit, thatthe motion was out of order under By-liaw 10 (d) because there wasnothing to show that it was relevant to some question affecting theMunicipal Administration of Colombo. He argued further that, in any•event, this Court would refuse the application for a writ of mandamusfor the following reasons :—.
(а)It would be futile to grant a writ of mandamus because the date
of the meeting is long past ;
(б)The petitioner has an alternative remedy in that he could have
obtained and even now can obtain under Seo. 21 of the Ordi-nance the permission of the Council to move this resolutioneven though it does not appear on the Agenda.
(c) Inasmuch as it is the duty Of the Secretary to place motions on theAgenda, and as it was the Secretary who refused to place thepetitioner’s motion on the Agenda of the Meeting of the 17thMarch, 1953, the application should have been made against theSecretary and not against the Mayor.”
I shall deal with the last objection first. Undoubtedly it is theSecretary who places motions on the Agenda, but he does so on thedirections of the Mayor. The motion in question was ruled out by theMayor, and the Secretary was merely carrying out the orders of theMayor when he did not put it on the Agenda of the Meeting of 17th March,
In my opinion if mandamus is available it should be against theMayor and not the Secretary. •. .
In a case reported in 5 S. C. C. 168 an: application was made beforethree Judges of this Court for a mandamus on the Chief Clerk of theCourt of Requests of Colombo to entertain a plaint. The Chief Clerkacting on the orders of the Commissioner had refused to accept it. ThfeCourt dismissed the application on the ground that under the Ordinancethe Chief Clerk had no independent duty to the public, that he was merelydoing something for which he was responsible to the Commissioner, andtherefore no mandamus could issue on him.
SWAN J.—Oaoray v. Orero
91
Before dealing with the other points taken "by Mr. Perera I shall dispose-of the reasons given by the respondent in his affidavit for ruling that thepetitioner’s motion was out of order. Mr. Perera did not seriouslyattempt to support those reasons.' In my opinion they cannot besupported.
Although the term of office of the Mayor and Deputy Mayor wasextended by Act 39 of 1951 the right of removing them from office by aresolution was not abolished. It was in fact made easier by reducingthe requisite majority from two-thirds to half.
The reason given by the respondent in para. 3 (6) of his affidavit isamusing. He says that since the defeat of the earlier motiop to havehim removed from office he had done nothing nor omitted to do anythingto justify the petitioner’s motion. Surely it was not for him to be thejudge of that—it was a question for the Council to decide.
I shall now deal with the other objections taken by Mr. Perera. Asregards the Mayor’s discretion to allow or disallow a motion undoubtedlyBy-Law 10 says that if he be of opinion that the motion is out of order hecan reject it. But he has a duty to perform in the matter which is of aquasi-judicial nature, and he must perform that duty judiciously and notarbitrarily as he has done in this case, If I were satisfied that thepetitioner had no other remedy I should not hesitate to command therespondent to place the petitioner’s motion on the Agenda of the nextmeeting to be held.
In the case of Goonesinghe v. Mayor of Colombo 1 de Kretser J. dealingwith Sections 82 and 85 of the old Ordinance (which correspond toSections 20 and 21 of the present enactment) and the identical By-Lawsreferred to herein before, held that a member of the Council had theright to bring forward, at a general meeting, a resolution of which he hadgiven three clear days’ notice to the Secretary, despite the fact that theChairman has, prior to the date of the meeting, expressed the opinionthat the resolution was out of order and directed that it should not beplaced on the Agenda.
If the view taken by de Kretser J. is correct then clearly the petitioneris not without a remedy. I shall deal with this matter more fully- later.
Regarding Mr. Perera’s contention that under By-Law 10 (d) theproposed motion was out of order because it did not show that it wasrelevant to some question affecting the Municipal Administration ofColombo I would say* that ex facie a motion to remove the Mayor fromoffice is a question that vitally affects the Municipal Administration ofthe City, because the Mayor is the Chief Executive Officer of the Counciland has several administrative functions to perform. It is not necessaryfor the mover in giving notice of the motion to state his reasons forwanting the Mayor removed. Those reasons would be revealed at themeeting. The motion may fail if there is nobody to second it. It mayfail after it has been put to the house. It is a motion which everyCouncillor has a statutory right to move. There is, in my opinion, anabsolute duty cast on the Mayor to place such a motion on the Agendaunless it is out of order by reason of By-Law 10 (e) quoted above.
1 (1944) 46 N. L. R. 85.
A2SWAN J.—Oooray v74fttro
;—-rrvi-'i
As regards the question of futility I do-hot think that merely becausc-the date ofthe meeting at which the re^Oftction was to have been movedis past an order of this Court, would be Ineffectual. The Mayor andCounoil are still in office, and there Will he many more meetings heldbefore they vacate office.
I shall now deal with the last question, namely, whether the petitionerhad, and still has an alternative remedy. Mr. Mohamed argues thatthe alternative remedy must be a legal remedy. I do not agree. AUenon Law and Orders at page 62 puts the matter thus
“ When any public authority or official is under an absolute (not adiscretionary) duty to perform a certain function and refutes to do soany person who has a demonstrable interest in its performance maymove the High Court for a mandamus to compel the fulfilment of theduty, and the Court, if satisfied by the application, will make an orderaccordingly, provided that there is no other remedy, equally convenient,beneficial and effectual open to the applicant.”
In a very recent case, namely, Hex v, Dunsheath, Ex parte Meredith 1Lord Goddard C.J. said :—
“It is important to remember that mandamus is neither a writ ofcourse, nor a writ of right, but that it will be granted if the duty is inthe nature of a public duty and specially affects the rights of an indivi-dual, provided there is no more appropriate remedy. This Court hasalways refused to iBsue a mandamus where there is another remedy opento the party seeking it."'■
In this case the learned Chief Justice cited several instances where thealternative remedy was not an action at Law but an appeal to a forumdomeslicum. Here too the petitioner could have sought his remedy byan appeal to the Council itself under Sec. 21.
To have brought up the matter before the Council at the meeting heldon 17th March, 1953, or at some subsequent meeting would have been asconvenient as, if not more convenient than, as beneficial and effectual as,applying to this Court for a writ of mandamus. It certainly wouldhave been speedier, and cost the petitioner nothing at all.
Mr. Mohamed also contends that it would have been useless for thepetitioner to have moved this resolution under Sec. 21 because the Mayorwould have ruled it out of order. _,
Sec. 21 provides as follows :—
“ Without the permission of a Municipal Council, no business shallbe brought before or transacted at any general or special meeting,other than the business specified in the notice of the meeting.”
Mr. Mohamed, pointing to By-Law 10 (t), says that any motion movedunder Sec. 21 must be one of which ho notice was given and not a motionof which notice has been given and which thg Mayor has ruled to be outof order. I am unable to place such a restricted interpretation on Sec. 21.
1 (I960) 2A.E. B. 741.
NAGALINQAit A.C.J.—Silva v. Karunawathie
03
In fact de Kretaer J. in the case cited above took the same view whenconstruing Sec. 85 of the old Ordinance. I think that the petitioner’sfear that the Mayor would have ruled the motion out of order underSec. 21 is groundless. Under Sec. 21 the mover has to obtain notthe Mayor’s but the Council's permission to move a motion not on theAgenda.
In my opinion the act of the Mayor in ruling the petitioner’s motionout of order was clearly wrong and improper, but I dismiss the applicationfor a writ of mandamus because the petitioner had, and still has, analternative remedy. In the circumstances I make no order as to costs.
Application dismissed.