New Law Reports
(1978) Vol. 80 N.LR.
1977 Present: Wimalaratne, J. and Tittawella, J.
Y. B. PUSSADENIYA (ASSISTANT COMMISSIONER OF LOCALGOVERNMENT) Petitioner, and O. DON WILFRED (CHAIRMAN,URBAN COUNCIL, HATTON) Respondent.
S.C. Application 505/76 – M.C. Hatton 6042
Application under Section 183(1) of the Urban Councils Ordinance – Surcharge – Magistrate'sCourt – Collecting Authority – Sections I83(!), (2), and (5) Urban Councils Ordinance.
Where an application is made under section 183(5) of the Urban Councils Ordinance to aMagistrate to recover a surcharge imposed by the Auditor-General, the Magistrate's Court ismerely a collecting authority and nothing else. Questions of prescription and the correctness ofthe surcharge are beyond its jurisdiction.
TTCTAWELLA, J.-Pussadeniya v. Don Wilfred
Application to revise the order of the Magistrate’s Court of Hatton.P. Naguleswaran with A. P. Niles for the respondent
Cur. adv. vult.
December 12, 1977. Tittawella, J.-
The petitioner who is an Assistant Commissioner of Local Governmentseeks to revise an order of the Magistrate of Hatton made on the 21st May1976 refusing to direct the recovery of a sum of Rs.7914.25 from therespondent, a former Chairman of the Urban Council of Hatton, whichamount had been imposed on him as a surcharge by the Auditor-General onthe 23rd May 1974 under section 182(1) of the Urban Councils Ordinance.
The petitioner had on the 7th November 1975 filed before the Magistratean application against the respondent under section 183(5) of the UrbanCouncils Ordinance to recover the said sum of Rs. 7914.25. The respondenthad objected to this application on the following grounds:-
that the surcharge was not justified on the facts; .
(h)' that the surcharge had not been imposed according to law;
that the liability sought to be incurred is prescribed under thePrescription Ordinance.
At the outset the petitioner had stated that the respondent had no right toquestion the validity of the Auditor-General’s certificate and that there wasno provision for an inquiry into the above matters before the Magistrate. TheMagistrate however proceeded to hold an inquiry and the respondent gaveevidence and called on his behalf another witness. In the course of theevidence and also according to the certificate filed it had transpired that thealleged loss for which the respondent was surcharged had been incurred in1964 and that no audit had been done of the accounts of the Urban Councilfor about seven years.
The learned Magistrate in his order accepts the position that it is not opento agitate before him all the matters that resulted in the imposition of thesurcharge. On this basis he holds that grounds (a) and (b) must fail. Howeverhe states that if the certificate on the face of it is defective then.anyapplication founded on it must necessarily fail. He then proceeds to say thatthe certificate itself reveals that the liability of the respondent was in October
The date of the certificate being the 23rd March 1974 he arguestherefrom that any claim against the respondent is prescribed under the termsof the Prescription Ordinance. He therefore holds that ground (c) mustsucceed and has dismissed the application of the petitioner. The learnedMagistrate in his order states that if regular half year audits as contemplatedin section 181 of the Urban Councils Ordinance had been conducted theliability incurred in 1964 by the respondent would not have been prescribed.He further adds that a certificate issued after nearly ten years cannot resurrect
New Law Reports
(1978) VoL 80N.LR.
a liability that has already been prescribed. In the circumstances he describesthe certificate as being “a mere lifeless, invalid and a valueless string ofwords”. It becomes necessary to state that this reasoning of the learnedMagistrate discloses a total lack of appreciation of the provisions of thePrescription Ordinance as well as that of the Urban Councils Ordinance.
The relevant sections of the Prescription Ordinance deal with theperiods of limitation of a right of action in the various instances. They statethe periods of time which the law has fixed for the enforcement of such aright. These provisions merely bar the remedy without extinguishing theobligation. Section 54(2) of the Village Committees Ordinance is identicalwith section 183(5) of the Urban Councils Ordinance under which thepresent application has been made. T. S. Fernando, J. in the case of TheChairman, Village Committee of Gandahe South v. P. B. Hippola' had thefollowing observations to make on a similar matter-
Upon a certificate of the auditor being produced before a Magistrate, I amof opinion that it is not open to the Magistrate to enter upon an inquiry todecide the question whether the audit has been carried out properly orwhether the sum represented debts irrecoverable by reason of theprovisions of the Prescription Ordinance.
I would, with respect, adopt these observation in the instant case.
Section 226(6) of the Municipal Councils Ordinance is also in identicalterms with section 183(5) of the Urban Councils Ordinance and in the caseof A. T. Duraiappah v. The Municipal Commissioner of Jaffna2, it was heldby de Kretser, J. that-
Where a Municipal Commissioner makes an application to a Magistratein terms of section 226(6) of the Municipal Councils Ordinance to recovera sum certified by an auditior to be due from a person as a surcharge, the(Magistrate’s) Court acts in an administrative capacity and has nojurisdiction to hold any judicial inquiry relating to the surcharge.
A plain reading of section 183(2) of the Urban Councils Ordinancealso makes it clear that the Magistrate’s Court is merely a collectingauthority and nothing else. Questions of prescription and the correctness ofthe surcharge are beyond its jurisdiction. The learned Magistrate in this caseis clearly wrong. Acting in revision I set aside the order of the Magistratedated 21.5.76 dismissing the application of the petitioner. I further direct theMagistrate to recover in terms of section 183(5) of the Urban CouncilsOrdinance the sum of Rs. 7914.25 from the respondent, O. Don Wilfred,together with all costs and expenses incurred in connection with theenforcement thereof as if it were a fine imposed by the Magistrate on the said
The petitioner will be entitled to the costs of this application.WlMALARATNE, J – I agree
Order of Magistrate set aside.
’(1957) N.L.R. 236 ai239.
’(1971) 73 N.L.R. 230.