PARANATALE et al. v. NUGAWELA

006-NLR-NLR-V-09-PARANATALE-et-al.-v.-NUGAWELA.pdf


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Present: Mr. Justice Wood Benton.
1906.
March 28.
PARANATALE et al. v. NUGAWELA.
C.R., Kandy, 3,391.
Provincial Committee appointed under Ordinance No. 3 of 1889—Power tosue—Expenses incurred in the working of the Ordinance—DistrictCommittee—BuddhistTemporalities Ordinance, No. 3 of 1889-^
Ordinance No. 3 of 1901, section 3.
A Provincial Committee appointed under the Baddhist Temp-oralities Ordinance (No. 3 of 1889) has no power to sue for the.recovery of any contribution which a temple has become liable topay, under the provisions of the said Ordinance, for defraying theexpenses incurred or to be incurred by the said Committee for thepurposes of the said Ordinance.
Such suit mnst be brought at the instance of the District Com-,mittee appointed under the said Ordinance.
T
HE plaintiffs as the members of the Provincial Committee ap-
pointed under the Buddhist Temporalities Ordinance (No. 3
of 1889) sued the defendant as trustee appointed under the saidOrdinance of the Dalada Maligawa, Kandy, for the recovery of a sumof Rs. 160, being the sum which the said temple became liable to payto the plaintiffs under rule 29 of the rules framed under section 3 of1901, amending the said Ordinance No. 3 of 1889 and published in theGovernment Gazette of the 3rd January, 1902, for the. purpose ofdefraying the expenses incurred and to be incurred by the plaintiffsfor the purposes of the said Ordinance No. 3 of 1889.
The defendant pleaded that the plaintiffs were not entitled to .maintain this action, and that the proper body to sue was the Dis-trict Committee appointed under the said Ordinance.
The Commissioner (Mr. J. H. de Saram) held as follows: —
“ This is an action by the Provincial . Committee appointedunder the Buddhist Temporalities Ordinance against the trustee ofthe Dalada Maligawa to recover Rs. 160, being the amount assessedby the Provincial Committee to be paid by the Dalada Maligawafor defraying the Committee’s expenses for the year 1905. An issueof law has been raised by the defendant. It is whether the plaintiffCommittee are entitled to recover the amount claimed or anypart thereof.
‘ ‘ I was asked to decide that issue before considering the other ques- ■tions involved in the case. Section 36 of the Ordinance No. 3 of1889 empowered every Provincial Committee to make rules. TheOrdinance No. 3 of 1901 in section 3 substituted a section for section36. The substituted section enacts that—
“ ‘ (a) Every provincial committeeshall select one of their
number to be president of such committee and shallmake rules—
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(6) For assessing the proportion in which each temple within 19(>6-the province shall contribute a share of the expenses March 28incurred or to be incurred in carrying out the provisionsof this Ordinance; and
‘‘‘(c) For every purpose necessary to the due exeroise of theirpowers and the performance of their duties under thisOrdinance. ’
" Buies were framed by the Provincial Committee, Kandy, andwere published for general information in the Government Gazetteof the 3rd January, 1902. The rules which apply to the presentaction, and on which both parties rely, are the following: —
“ ‘29. Each temple shall contribute an amount proportionate toits income for defraying the expenses already incurred or to beincurred by the Committees in carrying out the provisions of theBuddhist Temporalities Ordinances.
“ ‘ 80. Each District Committee shall on or before the 31st day ofMarch in each year prepare and transmit to the Provincial Commit-tee—
“ ‘ (a) Estimates showing the probable receipts of each templewithin its jurisdiction for the ensuing year.
“‘(b) Estimates of proposed disbursements for the next ensuingyear. The President of the Provincial Committee shalllikewise make yearly estimates of the proposed disburse-ments in his Department, and submit them to theProvincial Committee with the estimates of the DistrictCommittees.v
“ ‘31, The Provincial Committee shall carefully revise the esti-mates laid before them by the District Committees, and shall assessand determine the amounts which each temple shall contribute. ThePresident of the Provincial Committee shall then return the estimatesto the respective District Committees, who shall recover from thetrustees of the different temples the amount payable by each.
“ ‘32. The District Committees shall recover and remit to the Pro-vincial Committee all sums so assessed due by the different templeson or before the 30th day of June in every year. The ProvincialCommittee sdall then remit on application to each of the DistrictCommittees the amount sanctioned in the estimates that have beenrevised and passed.
“ The objection to the action is that the Provincial Committee haveno right to institute an action to recover the assessed amount whichany temple has to pay for defraying expenses of the Committeein carrying out the provisions of the Buddhist Temporalities Ordi-nance. It was argued for the defendant that. the right to sue i6 bythe rules vested in the District Committee. It was conceded by
1906.March 28.
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Mr. Barber appearing for the plaintiffs and by Mr. Beven for thedefendant that there is no provision in any of the Ordinances givingthe Provincial Committee the right to sue. Mr. Beven relied on rules29 and 31 in support of his argument that the proper Committee tosue is the District Committee.
“ Buie 29 enacts that each temple shall contribute an amount pro-portionate to its income for defraying the expenses already incurredor to be incurred by the Committees in carrying out the provisionsof the Buddhist Temporalities Ordinance. Buie 30 contains theparticulars to be furnished by the District Committees to enable theProvincial Committee to carefully revise those Committees’ estimates.The President of the Provincial Committee is by the same ruleempowered to make yearly estimates of the proposed disbursementsin his department, and submit them to his Committee.
“ This estimate does not require revision by the Provincial Com-mittee, for it is their own estimate made by their President. The nextrule (31) then enacts what is to be done with the estimate transmittedby the District Committees. The Provincial Committee carefullyrevise them and assess and determine the amounts which eachtemple shall contribute. Thereupon the Provincial Committee isrequired to return the estimates—that is. to say, the revised estimatesof the District Committees and the estimate made by the Presidentof the Provincial Committee—to the respective District Committees,■who shall recover from the trustees of the different temples theamount payable by each. Then rule 32' enacts that the DistrictCommittees shall recover and remit to the Provincial Committee allsums so assessed due by the different temples on or before the 30thof June in every year. The Provincial Committee shall then remiton application to each of the District Committees the amountsanctioned in the estimates that have been revised and passed,that is to say the amounts assessed in respect of each DistrictCommittee.
“ Mr. Barber laid stress on the word return in rule 31, and arguedthat it means that the Provincial Committee shall return to theDistrict Committees the estimates transmitted by them, that theProvincial Committee should retain their estimate, fand that theDistrict Committee should recover the amounts assessed in respect ofeach of them.
“ This rule may not be worded, as happily as it might have been,but it is clear to my mind on reading rules 31 and 32 that they enactthat the District Committees are to recover all the amounts assessedin respect of both the Provincial Committee and the District Com-mittees, and, after recovery, remit the whole sum to the ProvincialCommittee, \ho would retain all sums assessed in respect of that
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Committee, and pay over to each of the District Committees theamount sanctioned in the revised estimates which have been passed.
“ Both Mr. Barber and Mr.Beven agreed that the word 'recover' inrules 31 and 82 means recover by action where such a course isnecessary. It was never intended that this right to sue should bevested in the Provincial Committee and in each of the DistrictCommittees, and so give rise to multiplicity of actions and therebyentail unnecessary expense.
“ I am of opinion that the proper body to sue is the DistrictCommittee, and that the Provincial Committee have no right tomaintain this action. I therefore answer the issue of law in the-negative, and dismiss this action with costs.”
The plaintiffs appealed.
Jayewardene for them.—It is submitted that the ProvincialCommittee can sue for expenses incurred by them. [Wood BentosJ.—The statute does not empower them to sue.] But where thereis a right in them to a certain sum of money, the right to sue iaimplied. [Wood Benton J.—Where a statute intends that anycorporate body should sue it expressly gives such power; and theDistrict Committee is specially authorized to sue by the Ordinance.]That is so; the District Committee has been given expressauthority, -because some doubt may arise as to their right to sue inconsequence of the existence of the Provincial Committee. If theProvincial Committee recover the money, the District Committeecannot sue for it again.
Allan Drieberg. for the respondent, was not called upon.
Wood Benton J .—
I think the judgment of the Commissioner is right and should be-affirmed with costs.
I90&Man/i 28,