016-NLR-NLR-V-29-HUSSAIN-v.-ARIYANAYAGAM-et-al.pdf
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Present: Garvin J.
Application for Mandamus on the Chairman and Secretaryof the Urban District Council, Matale.
HUSSAIN v. A1UYAXAYAGAM ct al
Urban District Council—Dissent sent by member—Right of Chairman toreject—Ordinance No. 11 of 1920, rule 16.
The Chairman of a Urban District Council has no right; to rejectthe dissent seqt by & member to be entered in the minutes of theproceedings of the Council in terms of rule 16.
A
PPLICATION for a mandamus on the Chairman and theSecretary- of the Urban District Council, Matale, requiring
them to enter in the minutes of a meeting of the Council held onAugust 7, 1926, a written dissent sent by the petitioner, who was a .member of the Council. It appears that at the meeting in questionthe Chairman asked the Council to pass a special vote for legalexpenses, whereupon the petitioner and another member desired todebate the matter. The Chairman ruled that there should be nodebate, and the vote was passed. After the meeting the petitionersent in a written dissent.
H. V. Perera (with Abeywanlena), in support.
W. Ja-yawardene, K.C. (with Garvin), contra.
June 15, 1927. Garvin J.—
This is an application for a mandamus on C. Ariyanayagam, theChairman, and B. C. Jiiriansz, the Secretary, of the Urban DistrictCouncil of Matale, requiring them to enter in the minutes of ameeting held on August 7, 1926, a written dissent forwarded by thepetitioner, who is a member of this Council.
The petition did not disclose sufficient grounds for a rule on theChairman, and notice to show cause was ordered on the secondrespondent. On the returnable date Mr. E. W. Jayawardene, whointimated to me that he appeared,on behalf of both respondents,read an affidavit by the second respondent and opposed theapplication for a writ.
The second respondent admits that the dissent was not entered,but pleads that this was in compliance with the order of theChairman that this dissent was not to be entered in the minutes.
It was sought, however, to justify the refusal to enter this dissenton the ground that the Chairman had the right to reject a dissent,and that in this instance he exercised a proper discretion.
29/101927.
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1927.
Garvin J.
Hussain
v,
Ariyanaya
gam
It would seem that at the meeting of the Council held on August 7last the Chairman invited the Council to pass a special vote for legalexpenses. The petitioner and one other member desired to debatethe matter. The Chairman then ruled that there should be nodebate, and give as his reason that the litigation which necessitatedthe vote was still pending, and, to use his own words, “ Sub judice."With this order we are not concerned. No debate appears to havetoken place, but after the meeting at which the vote was passed thepetitioner sent in a written dissent. The Chairman claims to havethe right to reject this dissent, and gives as his reason that thematters therein referred to were " sub judice.”
Rule 16 of the rules is as follows: —'
“ It shall be competent for any Councillor who is in a minority torecord the reasons of his dissent from the opinion of themajority, and such written dissent, if sent to the Secretarywithin one week of the Council meeting in question, shallbe entered by the Secretary at the end of his minutes ofthe proceedings."
It is manifest that the rule lays the Secretary under a duty toenter every dissent forwarded by a member in terms of the rule atthe end of the minutes of the meeting. So far as he is concerned theduty is absolute; he has no discretion in the matter.
Where the duty to enter a dissent is imposed in such clear andunambiguous terms, there is no need to speculate as to the purposea dissent is intended to serve or to Consider how far the supposedpurpose or any purpose whatsoever i6 achieved by this particulardissent.
It is said, however, that the Chairman must be presumed to havethe power to prohibit the entry of a dissent. No authority wascited for the proposition, nor was my attention drawn to any rulewhich expressly or impliedly conferred such a power on theChairman.
Nor do I think it necessary to contemplate a case of gross abuseby a member of the privilege of entering a dissent. This is not sucha case. If ever a member invokes the powers of this Court to aidhim in placing a grossly improper dissent in the record of theminutes of a meeting, there can be no doubt that his applicationwill be dealt with appropriately.
Towards the end of the argument Mr. Jayawardene informed methat he appeared .only for the Secretary, and that his first statementthat he represented the Chairman was a mistake. This is unfortu-nate, as otherwise, in view of the position disclosed in the Secretary’saffidavit, a notice would have issued on the Chairman. There is,however, among the papers filed in connection with these proceedingsa proxy signed by the Chairman authorizing a firm of proctors torepresent him.
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This suggests that Mr. Jayawardene’s second statement maypossibly be mistaken. But under the circumstances it is notpossible to treat the Chairman as a respondent, even though hisobjections have been fully considered.
Order absolute will issue against the Secretary of the UrbanDistrict Council of Matale.
The costs will be paid by the second respondent, B. C. Juriunsz.
Rule made ab*ohiie.
1927.
Oabvut ,r.
Hussain
v.
Ariyanaya-
gam