039-SLLR-SLLR-2005-V-1-S.R.F-.PERERA-vs.-URBAN-COUNCIL-WATTALA.pdf
CAS. Ft. F. Perera vs287
Urban Council, Wattala (S. Srlskandarajah, J.)
S.R. F. PERERAvsURBAN COUNCIL, WATTALACOURT OF APPEAL,
sriskAndarajah, j.
C. A. NO. 18/2003SEPTEMBER, 17th, 2004
Writ of mandamus on Urban Council – Urban Councils Ordinance, No. 61 of1939,sections 104and 105-Repair and maintain drains of the area -Statutoryduty ?- Can writ lie. ?
Held:
(i)-The petitioner admits that the respondent Council had spent large sumsof money to repair and to enlarge the network of the drainage system but theycomplain that it is not effective. The position of the respondent is that withintheir capabilities and with available funds they have done their best. Underthese circumstances writ would not lie.
It would be improper for the court to make an order of mandamus compellingit to do that which it cannot do or which it can only do at the expense of otherpersons not before court who may have equal rights with the applicant andsome of whom would certainly have equal moral claims.
APPLICATION for a writ of mandamus
Case referred to :
Regina vs Bristol Confrontation Exparte Handy {CA) (1974) 1 WLR 498at 501 and 503
Sharuka Amarasinghe for petitioner
Aravinda R. I. Athurupana with P. Kehelwatte for 1st to 3rd respondents
Cur. adv. vult
November 15, 2004
SRISKANDARAJAH, J.The petitioners are residing in the Urban Council area of Wattala. The 1 strespondent, the Urban Council of Wattala is a statutory body under the
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Urban Councils Ordinance vested with the statutory duty of maintainingthe drainage facilities of the area of Wattala. The 2nd and 3rd respondentsare respectively the Chairman and the Secretary of the said UrbanCouncil.
The petitioners submit that until 1986 rainwater and all other drainagesystems of the Wattala area were directed via the waterways of thearea to the Kelani River. In 1986 notwithstanding the objections of theresidents of the area the Wattala Urban Council took steps to constructa drainage system without proper planning or foresight. The Urban Councilin doing so closed all the waterways of the area and attempted toreplace the system that existed. The newly constructed drainage systemcould not perform the functions of the earlier drainage system and as itcould not withstand the water pressure created by the inflow of waterfrom the by – drains connected to it considerable damage was caused tothese drains leading to regular flooding of the area. The petitionersfurther submitted that no repair work was done in regard to the saiddamaged drainage system until 2001. Thereafter a vast amount ofmoney was spent for the repair of drains but the repaired drains haveworsened the situation of the drainage system and have caused moreproblems for the residents of the area.
The petitioners state that due to the deplorable state of the drain's thepetitioners and other residents of the area are facing several healthhazards. They have complained to the respondents and other relevantauthorities including Her Excellency the President of Sri Lanka to takesteps in relation to this matter. The petitioner further submitted thatthe Department of Local Government has also recommended to theUrban Council by their letter of 14th October 2002 as to what stepsshould betaken to repair the drains to reduce the health hazard facedby the petitioners (p 18). The petitioners also submitted that therespondent Council has failed to take any steps on the recommendationsand the advice given by the Department of Local Government or otherGovernment Institutions. Therefore they are compelled to invoke theintervention of this Court. The petitioner further submitted that in termsof the provisions contained in Sections 104 and 105 of the Urban CouncilsOrdinance 61 of 1939 (as amended) the Urban Council of Wattala has astatutory duty to maintain, repair and for the up keeping of the drainsof the area for the effectual draining of the area and the Urban Council
CAS. R. F. Perera vs289
Urban Council, Wattala (S. Sriskandarajah, J.)
has failed to effectively maintain the said drains of the area. Thereforethe petitioners prayed for a writ of mandamus compelling the 1 st to the3rd respondents to effectively repair and maintain the drains of the areaas suggested by the Commissioner of Local Government-.
The position of the respondents is that due to the development of thatarea it has become necessary to have more drains. Therefore therespondents have laid new drains and have improved the drainagesystem of that area within their power and with the available funds. Theposition of the respondents is that they are performing their duty to thebest of their ability and the drainage systems cannot be improved andif it has to be improved any further that is beyond their financialcapabilities. Under these circumstances the respondents submit thatthey should not be compelled to do an act which is beyond theircapabilities.
In Regina V Bristal Corporation, Ex parte Hendy01 at 501 & 503,
Lord Denning M. R. observed;
“I think that the local authority fulfil their duty when they do theirbest, as soon as practicable, to get him other accommodation. I thinkthe local authority have made a very proper offer. There is no case fora mandamus.”
Stamp L. J.;
“I agree. It is not; I hope and believe every failure on the part of alocal authority to carry out its duties that may be corrected by anorder of mandamus. If it were so, the courts would , as I see it, betaking over the whole control of the Government of this country”.
Scarman L. J;
“I am'satisfied that mandamus ought not to issue. In my judgment,if, in a situation such as this, there is evidence that a local authorityis doing all that is honestly and honourably can to meet the statutoryobligation, and that its failure, if there be failure, to meet that obligationarises really out of circumstances over which it has no control, thenI would think it would be improper for the court to make an order of-mandamus compelling it to do that which either it cannot do or whichit can only do at the expense of other persons hot before court who
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may have equal rights with the applicant and some of whom wouldcertainly have equal-moral claims. For those reasons I would thinkthat in its discretion the court ought not to make an order ofmandamus."
In this infant application the petitioners admit that the respondent Councilhad spent large sums of money to repair and to enlarge the network ofdrainage system but they complain that it is not effective. The positionof the respondent is that within their capabilities and with the availablefunds they have done their best. Under these circumstances the courtis not inclined to issue a writ of mandamus. The court dismisses thisapplication without cost.
Application dismissed.