ROSE C.J.—Urban Council, Nawalapitiya v. The Attorney-General
1954Present : Rose C.J. and de Sllva'J.URBAN COUNCIL, NAWALAPITIYA, Appellant, andTHE ATTORNEY-GENERAL, Respondent
H. C. 379—D. C. Kandy, 3Id.
Urban <■'onaril—Contract entered into by Chairman—Liability oj Council—Urban
('annals Ordinance, No. 61 of 1939, vs. 34 (2), 47 (/).
Where llio ('huirn)Hii of an Urban Council ordered a ijiiiuility of flsli andreceivod it on behalf of the Council—
Held, that tlio Urban Council was liable In be sued on Lhn contract HS theChairman was, by virtue of section 34 (2) of the Urban Councils Ordinance, thechief executive officer of the Council.
Held-further, that buying and selling iisli fell within I lie permitted activities ofan Urban Council, within the meuning of section 47 (j).
PPEAL from ft judgment of the District Court, Kandy.
Ivor Misso, for the defendant appellant.
C. F. Jayaralne, Crown Counsel, for the plaintiff respondent.
Cur. adv. vult.
September 15, 1954. Rose C.J.—
This matter relates to a quantity of fish which was alleged to havo beendelivered by the Director of Fisheries to the Chairman of the UrbanCouncil, Nawalapitiya, on behalf of the Council during the period June,1944, to Novomber, 1945. The first question that arises for considerationis whether, assuming that the fish was in fact delivered, the Chairman wasacting within his authority in ordering the fish and receiving it on behalfof the Urban Council.
The English authorities which were cited in the course of argument areperhaps of little assistance on this matter owing to the specific provisionsof the relevant section of the Urban Councils Ordinance, No. 61 of 1939.Section 34 (2) expressly provides that the Chairman of an Urban Councilshall be the executive officer of the Council, and all executive acts andresponsibilities directed or empowered to be done or discharged by theCouncil may, unless the contrary intention appears from the context,be done or discharged by the Chairman.
It is true that the proviso to that sub-section states that the Chairmanin the exercise of his powers under the section shall act in con-formity w ith such resolutions as may from time to time be passed by theCouncil. No attempt was made at the trial to establish the existence ofany resolution which limited the powers of the Chairman in any parti-cular. .4 fortiori the plaintiff cannot be held to have had notice of anysuch limitation.
-»T V It II7SD-1.60O (1/&6)
ROSE C.J.—Urban Council, Nawalapitiya v. The^Al/omey-Central
The sole question, thorofore, that remains for decision on this aspect oftho coso is whether buying and selling fish falls within tho permittedactivities of an Urban Council. The learned District Judge came to thoconclusion, after consideration, that the supply of fish to the inhabitantsof the town of Nawalapitiya is an act that the Urban Council is permittedto do for tho furtherance of the promotion of the public health, welfareand convenience of the town and its inhabitants ; and that thorofoBo thisactivity is covered by Section 47 (/) of the Ordinance. From this viewI soo no reason to dissent..
Tho only remaining question therefore for consideration is whether thoplaintiff-respondent has established that the fish in question was deliveredto the Chairman.
Tho decision of this question has no doubt boon made moro difficultby tho unusual delay which attended the institution of tho present pro-ceedings. Tho learned District Judge, however, has applied hismind with care to the rolovant considerations for tho determination of thismattor and has roferred in particular to three documents, (P7, PS and P9),which purport to be letters signed by the then Chairman—Mr. R. E. Jaya-tiloko—relating to these consignments of fish. Some objection was takento tho admissibility of two of these letters, but whatever thomerits of these objections may be, one at least of the three letters is clearlyadmissible, and indeed tho contrary was not seriously contended for bylearned Counsel for the appellant. Moreover, as regards all three of thesedocuments—which wero accepted by the learned District Judge—thereseems to bo little doubt that they were written on behalf of and signed byMr. R. E, Jayatileke tho then Chairman.
Having regard to the lapse of time since this fish is alleged to have beendelivered it is perhaps not altogether unexpected that the proof of itsdelivery should be lacking in precision. The learned District Judge,however, has considered such evidence as there was with care and he hasformed the view that the necessary book entries sufficiently identify thefish in question. Moreover, apart from the evidence of Mr. K. A. Somapalawho appears to have been the official in charge of books of the FisheriesDepartment at the relevant time, he accepts and relics upon the evidenceof Mr. K. W. D. Pcrera, an Inspector of Fisheries of Colombo. Thiswitness states that he was iti charge of the despatch of fish from thoDepartment of Fisheries during the period June, 1944, to November,1945 ; that ho despatched fish in accordance with tho entries in therelevant books of tho Urban Council, Nawalapitiya ; and this was doneon the instructions of the Director of Fisheries. He also describes thomethod used for the actual despatch of the fish by railway.
It seems to me that it would bo wrong for this Court to hold that tholearned District Judge should not have accepted this evidence. Thatbeing so, I consider that the liability of the Urban Council to pay for thisfish is established. The appeal must therefore be dismissed with costs,
I would add that I feel a certain sympathy for the present members ofthe Urban Council if indeed it is true, as was suggested on their behalf, thatthe Council itself has not had the benefit of any revenues derived from thesale of the fish by the then Chairman. No doubt the Council will consider.
PULLE J.—Valachenai Co-operative Stores v. Vellacuddy
if they have not already done so, what remedies may bo available to themagayist the then Chairman, but, of course, for the reasons that I haveatroady stated, the fact, if fact it be, that the Council have been led intofinancial loss through the actions of a past Chairman, cannot affect theirliability to pay for the value of the goods to the deliverer of them.
an Silva J.—1 agree.
URBAN COUNCIL , NAWALAPITIYA, Appellant , and THE ATTONEY -GENERAL , Respondent
ROSE C.J.—Urban Council, Nawalapitiya v. The Attorney-General