D.W. WIJESURIYA et al., Petitioners, and S.K. MOONESINGHE (Chairman, Panadura

032-NLR-NLR-V-64-D.W.-WIJESURIYA-et-al.-Petitioners-and-S.K.-MOONESINGHE-Chairman-Panadura-.pdf


180
Wijcauriya v. Moonesinghc
Present: Sinnetamby, J.
W. WIJESUE.IYA et al, Petitioners, and S. Iv. MOONESINGHE(Chairman, Panadura Urban Council), Respondent
S.C. 150-153 of 1959—In the matter of Applications for Writs m the
nature of Writs of Mandamus
Mandamus—Public officer performing administrative or ministerial Junctions—Duty to exercise discretion according to law—Rides for exercising such discretion— Urban Council—Conduct of business at meetings—Notice of motion givenby member—Wrongful refusal by Chairman to place it on agenda paper—Remedyof member—Local Authorities (Standard By-laws) Act, No. 6 of 1052, By-laws2 (6), 10 (b), 10 (c), 12.
A public officer should not act arbitrarily or capriciously even where anadministrative or ministerial, as dis.inct from a judicial or quasi-judicial, .power is vested in him. Ho has to exorcise his discretion according to lawand a writ of mandamus Will lie if the applicant establishes either that thepublic officor “did not exercise any discretion in the particular case or thatho d id exercise it upon some wrong principle of law or that he had been influenced _by oxtraneous considerations which he ought not to have taken into account”.
By-law 10(c) ombodiod in the Local Authorities (Standard By-laws) ActNo. 6 of 1952 and governing the conduct of business by an Urban Council isin the following terms :—
“ Before any notice of motion is placed on tho agenda paper it shall bosubmitted to tho Chairman who if he be of opinion that it is out of order,shall ordor that such motion shall not bo included in the agenda and shall' cause the giver of the notice to be so informed. ”
Hold, that a writ of mandamus would lie against the Chairman if, by animpropor oxercise of tho discretion vested in him, ho rules a motion out of order.To docido whether tho Chairman acted properly in ruling that a particularmotion was “ out of order ” it is nccossary to examine the reasons given bytho Chairman for doing so. Tho respondent to an application for any of theprorogativo Writs would bo woll advised to givo such reasons by affidavit osotherwise he runs the risk of having the Writ allowed against him.
Held f urther, that By-law 2 (b) enabling a motion to be introduced with thepermission of tho Council docs not provide on alternative remody which con bosaid to bo equally convenient, benoficiol and effectual as mandamus.
SINNETAMI3Y, J.—Wijesuriya v. Moonesinghe
181
Applications for writs of mandamus against the Chairman ofthe Urban Council, Panadura.
Colvin R. de .Silva, with P. K. Liyanage and V. Karalasingha?n, forPetitioners.
M. M. Kumarakulasingham, for Respondent.June 30, 1959. Sinnetamby, J.—
Cur. adv. vuU.
Each of the applications 150 to 153 is an application for a mandatein the nature of a writ of mandamus preferred by a member of the Pana-dura Urban Council to which the Chairman is made Respondent.
In each application the member complains that the Chairman unlaw-'fully and unreasonably failed to place on the agenda certain motions ofwhich he had given due notice. He complains that the Chairman haddenied him the right to have his motions discussed at a meeting of theCouncil and asks for a writ to compel the Chairman to place the motionson the agenda at the monthly meeting of the Council next following theorder of this Court.
At the hearing Counsel agreed that all the applications should be takenup together and argument was consequently heard on those questionswhich were common to all. Thereafter, the motions detailed in eachapplication were dealt with separately. I propose to follow a similarprocedure.
The recent history of the Panadura Urban Council, as appearingin the affidavits filed, is that the Chairman in conducting the businessof the Council is confronted with a majority of members opposed to him.The opposition had previously brought a motion of No-Confidence onthe Chairman and moved a resolution to remove the Chairman fromoffice in terms of Section 34(a) of the Urban Councils Ordinance. Al-though 4 voted in favour of the resolution and three against it, therequisite 2/3 majority was not obtained and the motion was not giveneffect to. It appears that, thereafter, there has been constant frictionbetween the Chairman and those supporting him on the one side and theopposition consisting of the petitioners to these applications on theother. The members of the opposition gave notice of the motions whichform the subject matter of these applications but the Chairman ruledthem “ out of order ” and refused to let them appear on the agenda.He purported to do so under the rules governing the conduct of businessby an Urban Council embodied in the Local Authorities (Standard By-laws) Act No. 6 of 1952. It is admitted that the by-laws enacted inthis Act are applicable to the Urban Council of Panadura.
By-law 10 of the Standard By-laws embodied in this Act deals withmotions and provides that every notice of a motion shall be given inwriting and must be in the hands of the Secretary 7 days before themeeting of the Council if it is to be included in the agenda.
182SINNETAMBY, J.—Wijesuriya v. Moonesinghe
By-law 10(b) provides inter alia that all notices of motions shall beentered by the Secretary upon the agenda in the order in which theyare received.
By-law 10(c) under which the Chairman in these cases purported toact is in the following terms :—
“ Before any notice of motion is placed on the agenda paper itshall be submitted to the Chairman who, if he be of opinion that it isout of order, shall order that such motion shall not be included in theagenda and shall cause the giver of the notice to be so informed. ”
The Chairman in pursuance of the powers vested in him by this by-lawruled the motions submitted to the Secretary by the applicants in thesecases out of order and informed them accordingly.
The first question that arises for consideration is whether a writ ofmandamus lies against the Chairman who purports to act in terms of thisby-law. It was contended on behalf of the resijondent that an absolutediscretion is vested in the Chairman and if he rules a motion out of orderhe doss so in the exercise of that discretion and. therefore, is not amenableto a Writ of Mandamus. It is undoubtedly correct to say that the actwhich the Chairman was called upon to perform by this provision is anadministrative act as opposed to an act of a judicial or quasi-judicialnature. It is “ ministerial ” in character and if the act is honestlyperformed it must be conceded that the writ will not lie provided alsothat certain other requirements have been observed.
Similar provisions appear under the Town Councils Ordinance and theMunicipal Councils Ordinance and the right of a party to seek the inter-vention of the Courts on an improper exercise of the discretion vestedin the Chairman or Mayor has not been doubted. Vide A. E. Goonesinghev. The Mayor of Colombo1, B. N. Cooray v. C. T. Grero1 and Samara-weera v. Balasuriya3.
I think it is now clearly established that even where a ministerialpower is vested in a public officer he cannot act arbitrarily or capriciously.He has to exercise his discretion according to law and a writ of mandamuswill lie if the applicant establishes either that the public officer “ didnot exercise any discretion in the particular case or that he did exerciseit upon some wrong principle of law or that he had been influenced byextraneous considerations which he ought not to have taken intoaccount ”—per Avory, J. in Rex v. Registrar of Companies1*. Where,however, none of these defects can be established, the Court will not inter-fere by Mandamus if the officer honestly exercised his judgment and cameto what may be regarded as an erroneous decision either on the facts or onthe law. In such an event, his reasons for so deciding cannot be reviewed.Allcpofl v. Lord Bishop of London6, also Rex v. Monmouthshire JusticesEx. p. Neville.G. If the discretion has been exercised fairly and any
l(1944) 46 N. L. R. 85s(1954) 56 N. L. R. 87.*(1955) 58 N. L. R. 118
*(1912) 8 K.B. 34.
51891 Appeal Gases, House of Lords, 666.6109 L. T. 788.
SINNETAMJBY, J.—Wijesuriya v. Moonesinghe
183
reason which is not a legal one has not been taken into account, thenthe writ of mandamus will not lie—per Lord Esher in Queen v. Vestry ofSt. Pancras1. In the same case, Lord Esher continued as follows :—
'* If people who have to exercise a public duty by exercising theirdiscretion take into account matters which the Court considers not tobe proper for the guidance of their discretion then in the eye of thelaw they have not exercised their discretion. ”
This principle was reiterated by the Privy Council in the recent case ofRoss-Clunis v. Papadopoullos and othersz. In that case a public officerwas given the power to make certain orders if he satisfied himself that aparticular state of affairs existed. It was held that the only duty caston the public officer was to satisfy himself of the existence of the stateof affairs in question and that the test to be applied was a subjectiveone : nevertheless, the Court would interfere if it could be shown thatthere were no grounds on which the public officer could so satisfy himself ;in which event the Court might infer either that he did not honestlyform that view, or that in forming it he could not have applied his mindto the relevant facts.
The questions that arise for decision in this case are whether in rulingthe motions “ out of order ” the Chairman exercised his discretion honestlyand fairly, or whether he had exercised it upon a wrong principle of lawor had been influenced by extraneous considerations.
In considering the power of the Chairman under Section 10(c) of theLocal Authorities (Standard By-laws) Act No. 6 of 1952, it is necessaryto ascertain the meaning of the term “ out of order ”. No attempthas been made, so far as the researches of the learned Counsel in thecase and my own efforts go, to judicially interpret this expression.Be Kretser, J. was confronted with this same difficulty in Goonesinghe v.Mayor of Colombo (supra) but he did not attempt to define the expression.While it would be extremely difficult to give a comprehensive definitionto the expression it is quite easy in certain cases to say whether a particularmotion is “ out of order ” or not, for instance, notices of motions whichdo not comply with the requirements laid down in the Local Authorities(Standard By-laws) Act No. G of 1952, would obviously be not in order ;likewise a motion would be out of order if for instance it is couched inimproper language or if it is unintelligible or if it is unlawful or illegal.To decide the question of whether the Chairman acted properly in rulingthe motions in question “ out of order ” it is necessary to examine the
reasons given by. the Chairman for doing so.
»
The Respondent to an application for any of the prerogative writswould be well advised to give reasons as otherwise he runs the risk 1 2
1haw Reports, Q.B.D. {1890) Vol. 24, 371 at p. 376.
21958 2 A.EJt. 23.
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SINNETAMBY, J.—Wijesuriya v. Mooncsinghc
of having the writ allowed against him. Even where discretion is leftin a public officer it must be shown that he was not acting arbitrarilyin exercising the discretion. Sufficient grounds for its exercise in aparticular way must be shown to exist even though upon the materialdisclosed a Court may consider that an erroneous decision had beenreached. That is a condition precedent to the exercise of the power. -Vide the observations of Lord Racliffe in Nalckuda Ali v. J ay aratnex >also Suyathadasa v. Minister of Local Government2 and Ross-Clunis v.Papadopoullos (supra).
In the present case, the Chairman has given his reasons for rulingthe motions out of order. Certain motions have been ruled out of orderby the Chairman on the ground that they infringe the 6 months ruleembodied in Rule 12 of the Standard By-laws Act which is as follows :—
“ A motion which has been withdrawn may be moved again at anysubsequent meeting ; but no motion shall be proposed which is thesame in substance as any motion which within the period of 6 monthsreferred to in by-law 10(c) shall have been resolved in the affirmativeor negative. ”
In regard to whether 6 months has elapsed no two views are possibleand when the Chairman rules a motion out of order on this ground andit is shown that the 6 months has elapsed it must bo taken that the Chair-man has acted arbitrarily or capriciously. Certain other motions havebeen ruled out of order on the ground that they are the “ same insubstance ” as a previous motion which has been moved within theperiod of 6 months. Here a discretion is vested in the Chairman todecide whether it is the “ same in substance ” and his exercise of thediscretion will not be interfered with unless it is shown that he has notexercised his discretion at all within the meaning of Lord Esher’s dictumor unless it is shown that he has not acted honestly or has acted on awrong principle of law or has been influenced by extraneous considerations.
Another defence taken by the Respondent is that there was analternative remedy available to the petitioners in this case and that theycould have moved these very same motions under by-law 2(6) of theStandard By-laws. It was urged that, in as much as this alternativeremedy was available, a Court would not grant ‘the remedy by way ofMandamus. By-law 2(6) of the Standard By-laws is to the followingeffect :—
** No business shall be brought before or transacted at any meeting,ordinary or special, other than the business specified in the noticeof the meeting, without the permission of the Council.
JnGoo?iesinghev. The Mayor of Colombo (supra) de Krctser, J. took the viewthat a resolution which was ruled out of order did not give the applicanta right to ask for mandamus on the ground that Section 85 of theMunicipal Councils Ordinance enabled the petitioner to bring up the
'(I960 )51 N. L. H. 457.
*(1958) 59 N. L. It. 475.
SINNETAMBY, J.—Wijesuriya v. Moonesinghe
185
motion in Council despite the fact that it does not appear on the agenda-Section So does enable matters that do not appear on the agenda to beconsidered. In B. N. Cooray v. G. T. Grero (supra) Swan, J. followed theopinion expressed by de Kretser, J. in regard to the alternative remedyin an application of a similar nature brought against the Chairman ofthe Municipal Council. In an application for a Writ against the Chairmanof the Urban Council, Matara, Sansoni, J. in Samaraweera v. Balasuriyci(supra) took the view that a by-law in the identical terms of 2(6) was not analternative remedy for he said it is no remedy at all unless the petitionerobtains the permission of the Council. For a remedy to be regardedas alternative it should be equally convenient, beneficial and effectual.
I agree with the views expressed by Sansoni, J. In respect of a resolutionwhich is not out of order a member has a right, even if the majority ofthe other members of the council are against it, to have it discussed anddecided at a meeting of the Council but under rule 2(6) he cannot evenmove it unless the majority permit him to do so. It is, therefore, notthe same remedy that is available to him.
I shall now proceed to deal with each of the applications in turn.
In application No. 150, the applicant is one D. W. Wijesuriya and themotions of which he gave notice on 26th February,. 1959, to be placedon the agenda on 9th March, 1959, are as follows :—
(а)In view of the fact that this Council is of the opinion that the
water-seal latrines of the working class houses under the WekadaHousing Scheme have not been properly built, thereby en-dangering the health of the occupants of the houses as well asthe residents of the neighbourhood, this Council calls uponthe Medical Officer of Health to inspect the said water-seallatrines and submit a report to the Council.
(б)This Council views with great concern the present unsatisfactory
arrangement to collect night soil by the Horana Trunk Roadnear the Public Bus Stand and authorises the Vice-Chairmanto take such steps as are necessary under Section 36 (a) of theLand Acquisition Act to acquire the former site where nightsoil was collected, in consultation with the Member of Parlia-ment of the area, as the Chairman has failed to take necessaryaction in the matter.
In view of the fact that the Chairman has failed to implement an
earlier decision of Council to provide scavenging carts to, ensure the quick removal of refuse from the streets, thisCouncil resolves to set apart a sum of Rs. 2,000 for the purchaseof five scavenging carts.
This Council resolves to set apart a sum of Rs. 2,000 towards the
preliminary expenses in connection with the widening of theapproach road (Debichchiya Road) to the Railway Line throughthe Main Street.
18f>
SINNETAMBY, J.—Wijeauriya v. Moonesinghe
As the existing road from the Beef Market to the Bail way Bridgeis very narrow at certain points, this Council resolves to obtaina lease of the necessary land from the Railway Authorities towiden the said Road.
(/) In view of the fact that a number of land owners have giventheir consent to allow the running of a road through their lands,connecting the Main Street with the Galle Road from the StationJunction, this Council resolves to acquire such land by privatetreaty according to Government valuation and the rest of theland required to be acquired under the Land Acquisition Act.
(g) In view of the fact that the Chairman has forfeited the confidenceof the majority of the members of this council, and as the'rate-payers cannot expect him to be of any service to them,this Council is of the opinion that it should not provide theChairman with a telephone this year and resolves to informthe Telecommunication Department the decision of tho Councilnot to renew the agreement to provide a telephone to theChairman’s bungalow.
In regard to resolution (a) the Chairman gives three grounds for rulingthe motion out of order. The first ground is that a similar resolutionwas moved at a meeting held on 8th September, 1958, and lost. Thoresolution of 8th September, 1958, was merely a request to the MedicalOfficer of Health to assist in health matters and to investigate andreport whether the Housing Scheme buildings complied with tie require-ments of the Housing and Town Improvements Ordinance. Resolution(a) deals with something entirely different, namely, a request to inspectand report on the water-sealed latrines wrhich, it is contended, has notbeen properly built. Furthermore, it is open to a member to re-introducea resolution which though in substance is tho same does not offend the6 months rule. The second ground of objection is that in view of anotherresolution passed in February, 1959, this resolution is superfluous. Thethird gr- und is that ro complaints have been received bv the Chairman.These, it seems to me, are good grounds on which the Chairman mayoppose the acceptance of this resoluticn by the C'until and not groundsfor ruling it out of order. Resolution (a) must therefore be placed uponthe agenda ab the next meeting of the Council.
Resolution (6) calls upon and authorises the Vice-Chairman to takesteps under Section 38 (a) of the Land Acquisition Act. Tho Vice-Chairman has no power to act under the Land Acquisition Act and it isthe Minister that should do so nor is it within the power of the Vice-Chairman to implement any decision of the Council. The Respondentin his affidavit says that no powers had been delegated to the Vice-Chairman under Section 35 (2) of the Act. In these circumstances, theresolution being against the law the Chairman rightly ruled it out oforder.
SINNETAMBY, J.—Wijesttrii/a v. Moonesinghe
187
Resolution (c) relates to appropriation of a certain sum of moneyfor the purpose of purchasing scavenging carts. The Chairman ruledit out of order as it offended the six months rule. The resolution ofDecember 1958 is to construct hand carts. The two are therefore netthe same in substance and no two views are possible on that question.It must, therefore be taken that the Chairman either did not exercisehis discretion or exercised it on a wrong principle. The motion, therefore,should have been placed on the agenda.
In regard to Resolution (d) the Chairman has ruled it out on theground that no -decision had been taken by the Council to widen the saidroad. This, it seems to me, to be the ground upon which the Chairmancould have honestly exercised his discretion and he is entitled to ruleit out of order.
In regard to Resolution (e) the Chairman took the view that in thoresolution of the 8th December, 1958, the petitioner moved a resolutionsimilar in substance to it and that the motion contravenes Section 12of the By-laws Act. I reproduce the resolution of 8th December, 195S,which is as follows :—
“ This Council resolves to obtain a lease from the Ceylon GovernmentRailway of the land necessary to widen the narrow spots on the roadleading by the meat stalls up to the bridge according to a plan preparedfor such purpose and also to set apart the money necessary for suchlease in the budget estimates of 1959. ”
It cannot be said that the Chairman did not honestly and properlyexercise his discretion in regard to it. His order will accordingly stand.
In regard to Resolution (/) the Chairman ruled it out on the groundthat on 17th November, 1958, a resolution similar in substance waspassed and it, therefore, contravened Section 12 of the Act. The resolu-tion is as follows :—
“ This Council resolves to acquire from the Landowners the roadstarting opposite Railway Station Road and leading up to the landwhere the Kovil stands, and improve the same ”.
It cannot be said that the two are not similar in substance and it seemsto me that the Chairman was entitled to rule it out.
In regard to Resolution {g) the Chairman states that this motion wasintended to humiliate, harass or annoy him. He also says that provisionhad been made for the telephone in the budget which had been acceptedby resolution No. 1 of the Council on 23rd December, 1958, and that themotion is, therefore, in contravention of by-law 12. The learned Counselfor the applicant stated from the Bar that it was not expressly includedin the budget and at one stage I thought it might be relevant to consider
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SINNETAMBY, J.— Wijesuriya v. Moonesinghe
the terms of that budget but in Mandamus proceedings if any avermentin an affidavit is to be traversed it should be done by a counter affidavitto which should be attached exhibits. If, therefore, the petitionerwished to question the correctness of what the respondent has statedin his affidavit he should have filed a counter affidavit along with a copyof the budget in support of his allegations. This he has failed to do andin the circumstances this Court will act only upon what is stated in therespondent’s affidavit. For the reasons given this resolution does-appear to contravene rule 12 of the by-laws. It cannot be said, therefore, -that the Chairman did not properly exercise his discretion in rulingit out.
In Application No. 151, the applicant is one Mr. D. A. Wijesiriwardeneand the motions of which he gave notice on 25th February, 1959, to beplaced on the agenda on 9th March, 1959, are as follows :—
(а)In view of the fact that the Chairman has forfeited the confidence
of the majority of the members of the Council, this Councilappeals to the Chairman to resign from office forthwith in thelarger interests of the rate-payers and also to uphold democraticprinciples and traditions handed down by previous Chairmen'of this Council.
(б)This Council resolves to metal and tar Ekanayake Road and Anura-
Mawatta Road.
The learned Counsel for the applicant did not press his applicationin regard to resolution (a) and it is not necessary, therefore, to consider-it.
In regard to Resolution (6) the Chairman has ruled it out on the ground,that two resolutions similar in substance were passed on the 8th September,1958, one relating to Ekanayake Road and the other to Anura MawattaRoad. It is to be noted that these resolutions do not, in fact, offendthe 6 months rule. In regard to Ekanayake Road, the Chairman soughtto bring it within the 6 months rule on the ground that this item wasconsidered in the budget of 1959 and no funds were provided. He wasnot entitled to take that factor into consideration in deciding whetherthis resolution in respect of Ekanayake Road was out of order. Inregard to Anura Mawatta Road the Chairman says that steps are being:taken to widen the road and as that has not been completed, “ the motionis premature ”. The reason given by the Chairman is a good groundfor opposing the motion and for the Council to vote against it. It isno ground for ruling the motion out of order. Here again, the Chairmanhas taken into consideration matters which he should not have considered.The Chairman has thus not acted properly in the exercise of his-discretion and it should accordingly be placed on the agenda.
' SINNETAMBY, J.—Wijesuriya v. Moonesinghe
189
In Application No. 152, the applicant is one Mr. Noel T. Mendis andthe motions of which he gave notice on 25th February, 1959, to be placedon the agenda on 9th March, 1959, are as follows :—
(а)This Council requests the Minister of Local Government to kindly
convey to the Council the findings of the inquiry held on theMinister’s orders by Mr. W. A. Wijesinghe, into charges ofmaladministration and corruption against the Chairman.
(б)In view of the fact that the majority of the members of the Council
have no confidence in the Chairman, this Council authorisesthe Vice Chairman of the Council to take such steps as arcnecessary to implement the decisions of Council.
(c) This Council resolves to permit the Uyankele Housing SchemeSociety to conduct needle work classes in the Council’s buildingwithin the Housing Scheme premises, presently used as a Clinicand Milk distribution centre.
In regard to resolution (a) the Chairman ruled it out of order on theground that a similar resolution was moved by the petitioner on 11thAugust, 1958, and the Minister refused to disclose the findings of thecommission. The resolution of 11th August requests the Minister toforward the report to the Investigating Officer appointed to inquireinto certain allegations but that motion was lost. No request wastherefore made to the Minister. There is nothing to prevent a similarmotion now being introduced but the Chairman says that the Ministerin Parliament claimed that the representations were confidential andcould not be disclosed. A copy of Hansard was produced but from thatcopy it is obvious that what the Minister refused to disclose was thereport of the legal adviser and not the report of the inquiry that washeld. The motion, therefore, seems to me to be in order and the Chairmanhas taken extraneous and irrelevant matters into consideration in rulingit out of order. The Council may make the request but the Ministermay still refuse or grant it.
In regard to resolution (6) the Vice Chairman has no authority toimplement any resolutions of the Council. It is against the law and theChairman correctly ruled it out.
In regard to resolution (c) the Chairman contended that it offendedthe 6 months rule as an earlier resolution similar in substance was passedby the Council, on 13th October, 1958. The resolution of the 13thOctober, 1958, is in the following terms :—
“ This Council resolves to permit a Sewing Class to be conducted
at the Uyankele Maternity Centre. ”
The Chairman has exercised his discretion in holding that in substancethey are the same. There is nothing to suggest that this discretion wasnot honestly exercised. This Court cannot, therefore, interfere.
too
SINNETAMBY, J.—Wijesuriya v. Mooncsinghc '
In Application No. 153, the applicant is one Mr. Titus Goonetillekaand the motions of which he gave notice on 26th February, 1959, to beplaced on the agenda on 9th March, 1959, are as follows :—
This Council is of opinion that a telephone be installed in the
Vice Chairman’s bungalow.
This Council resolves to metal and tar Galwala Road.
This Council resolves to supply current free of charge to the Tantiri-
mulla Upasikharamayaon the same basis that current is suppliedto illuminate the Gunananda Statue.
In regard to resolution (a) the Chairman ruled it out of order on theground that (1) the Vice Chairman holds office only for a year and theinstallation of a telephone will involve unnecessary expenditure, (2) no
4
powers had been delegated to the Vice Chairman under Section 35 (2) ofthe Ordinance and a telephone would be a superfluity, and (3) for 25years no Vice Chairman has been provided with a telephone. Thegrounds given by the Chairman may be very good reasons for not passingthe resolution or for opposing it but they are not grounds for ruling themotion out of order. The Chairman must be taken to have not exercisedhis discretion within the meaning of Lord Esher’s dictum. This motionshould, therefore, have been placed upon the agenda.
In regard to resolution (b) the Chairman contends that a similarresolution was passed on Sth September, 1958, and money has beenprovided for the purpose of acquisition, and further contends that theresolution is premature as the acquisition has not taken place. Theresolution of Sth September, 195S, is to widen, tar and metal GalwalaRoad. The present resolution is only to metal and tar and not to widen.The two cannot be said to be the same in substance and it seems to methat the resolution should have been placed on the agenda.
In regard to resolution (c) the Chairman states that Gunananda Statuewas erected on the land belonging to the new Urban Council and thelighting was charged to Street Lighting while the Upasikharamaya isa private dwelling house and the passage of the resolution would causeloss of revenue and render members liable to a surcharge. I do notthink that these are relevant grounds on which the resolution couldhave been ruled out of order. It was not established that any moneyexpended in pursuance of a resolution of the Council, unless it expresslycontravenes the law, made members liable to a surcharge. If the Councildecides to spend its revenue in unremunerative ventures, there may beother ways open to a Minister to prevent it but so far as a Council isconcerned the Chairman is not entitled to burke discussion. The groundsstated may be very good grounds for opposing the resolution but notfor ruling it out of order.
ABEYESUNDERE, J.—Siriwardhena v. Goon
101
In the result, in Application No. 150, I would allow a mandate in thenature of a Writ of Mandamus in respect of Resolutions (a) and (c) andrefuse it in respect of the others.
In Application No. 151, I allow a Writ in respect of Resolution (b)and refuse it in respect of resolution (a).
In Application No. 152, I allow a Writ in respect of Resolution (a)and refuse it in respect of the others.
In Application No. 153, I allow a Writ in respect of Resolutions (a),(b) & (c).
As the applicants in Applications No. 150, No. 151 & No. 152 havebeen only partially successful I award no costs but the applicant inApplication No. 153 will be entitled to costs of his application.
Applications 150, 151, 152 partly allowed.
Application 15o allowed.