SWAX J.—Jayasinghe i I.ayaratne
1952Present : Swan J.
W. JAYASINGHE, Petitioner, and D. G. DAYAR ATNE(Assistant Government Agent), Respondent
S. C. 128—Application for a Writ of Mandamus on theGovernment Agent, Kegalle
Excise Ordinance—Local option poU—Voting area—Procedure for defining itsboundaries—Rules 5, 10, 11, 12, 13—Mandamus.
* By Rule 13 of the Local Option. Rules of 1928 :—
“ The Government Agent with the advice of the Advisory Committee shall havethe power to define the exact boundaries of any area in accordance with theprovisions of Rules 10, 11 and 12. ”
Held, that Rule 13 would have no application if the boundaries of the villagesinvolved are already definite mid well known.
.^^.PPLIQATIQN for a Writ of Mandamus.
H. W. Jayewardene, with. P. Ranasinghe and A. de Silva, for thepetitioner.
R. de Fonseka, Crown Counsel, for the respondent.
Cur. adv. vult.
December 17, 1952. Swan J.—
The petitioner who claims to be entitled to vote at any local optionpoll in the Kegalle Town area complains that the respondent failed to.comply with certain statutory rules in connection with a local optionpoll held on 26.1.52, which resulted in the closing of the Foreign liquorTavern in Kegayq Town and Arrack Tavern No. 1 in the village of Ola-gama which falls within the Kegalle Town areas. The petitioner hasapplied to this Court for a writ of mandamus on the respondent in thefollowing terms :—
(а)“ declaring the poll held on 26th January, 1952, to be null and void ;
(б)commanding the respondent to report to the proper authority that
the said poll has been declared null and void and that thelicences for Arrack Tavern No. 1 Olagama and Foreign LiquorTavern, Kegalle, in the area administered by the Kegalle UrbanCouncil have not been abolished for the rent period commencingnext after the date on which the said poll was held ;
commanding the respondent to hold a poll only after a freshapplication is made and in compliance with law ; ”
Learned Counsel for the respondent contends that the first prayer isfor consequential relief, that the second prayer is a meaningless requestbecause there is no “^proper authority ” except the respondent Jiimself
SWAN J.—Jayasinghe v. Dayaratne
to whom report would have to be made, and that the third prayerenvisages a situation that may never arise, because no Jhe can say-whether a fresh application for a poll will be made. Mr. Jayewardene–submits that the prayer of the petition is based on the order made byDrieberg J. in Miller & Go. v. Government Agent, Province of Uva x.
It will be necessary to consider what form the writ should take only ifthe petitioner can satisfy this Court that he is entitled to succeed on his-application.
Counsel for the respondent also objected in limine that the application,should be dismissed because—
the petitioner has no real interest in the matter, and•
there was undue delay in making the application.
As regards (a) it is not denied that the petitioner was on the list ofvoters but it was suggested that in the matter of this application he wasa mere figure-head having been set up by some person or persons whowere financially interested in keeping these taverns open. On thoevidence I am unable to come to that conclusion and I would hold that,the petitioner has a demonstrable interest in the matter of this applicationand that he can maintain the application.
As regards the second objection Mr. Fonseka has pointed out that-the preliminary list of voters was prepared and made available forinspection before 31.8.51 and the final list published on 30.10.51.The petitioner, he maintains, should therefore have made this application,shortly after the publication of the final list. The petitioner in hisevidence stated that he became aware of the alleged irregularity only afew days before the poll was held ; and Mr. Jayewardene has explainedthat before the petition could be submitted to Court certified copiesof certain documents of a voluminous nature had to be obtained. In.the circumstances I would hold that there has not been any unreasonable _or undue delay in making the application.
I shall now deal with the application on the merits. ‘The complaint ofthe petitioner is that the respondent failed to comply with Rule 13 ofthe Local Option Rules 1928 (Subsidiary Legislation, Volume 1, Cap. 42,page 309). This rule, provides that “ the Government Agent with thoadvice of the Advisory Committee shall have the power to dofine theexact boundaries of any area in aecordaD ce with the provisions of Rules 10,11 and 12 ”. The petitioner’s case is that the voting area which had.to be determined under Rule 11 could not have been determined withoutfixing the exact boundaries and, therefore, the requirements of Rule 13had to be observed. The petitioner filed affidavits from two persons-on the Advisory Committee to the effect that they had no,t been consulted,for the purpose of defining the correct area. In each of these afifidavits-the affirmant states—■
“ According to the best of my information the voting area as fixed.
for the poll in January, 1950, is not identical with the voting area for
the poll in question. ”
1 (1928) 30 N.L.R. 6.
SWAN" J.—Jayasinghe v. Dayaratne
The respondent both in his affidavits and in his evidence in Courtadmits that ke did not seek the advice of the Committee. His position-is that he was not acting under Rule 13 because there was no need todefine the exact boundaries which were already well known. But-leamed Crown Counsel in the course of his argument contended thateven if the Government Agent were acting under Rule 13 he had a dis-cretion whether to consult the Advisory Committee or not. In otherwords, the argument was that as the rule did not say that the Government-Agent should not, except upon the advice of the Committee, define the-exact boundaries of any voting areas it made it optional for him to consult-the Committee. With this contention I am unable to. agree. The ruleas I read it empowers a Government Agent to define the exact boundaries-of any voting area, when the need for such definition arises, only with theadvice of the Advisory Committee. Any other interpretation of therule would make nonsense.
The crucial question therefore is whether any need arose before or-during the preparation of the voters lists to define the exact boundaries-of the voting area laid down by Rule 13. In order to consider this, onehas to know what is required to be done when an application is made-for a poll. The application itself has to be made under Rule 2 beforeJune 30 in any particular year. Thereupon, the Government Agent-has under Rule 5 to prepare a preliminary list of the persons entitledto vote at such poll. That list has to be prepared on or before 31stAugust, and it must be made available to the public for inspection.Before preparing the preliminary list the Government Agent has to-determine the voting area in accordance with the rules. Voting areas-fall under two categories—namely, Urban and Rural and Rules 10 and 11have to be applied. Rule 10 deals with Urban areas and Rule 11 with-Rural areas. Btt Rule 10a provides that whenever the population of.,any Urban area according to the latest census report is below 5,000,the voting area is to be determined not according to Rule 10 but according,to Rule 11.
It is common jgjound that the population of the area administered by"the Kegalle Urban Council was less than 5000 and so Rule 11 would-apply. This rule is worded thus :—•
“ Rural—In rural areas the voting area shall be, in the case of asingle tj-vem, hotel, or place licensed to sell beer or porter, as nearlyas practicable the whole area within a radius of two miles from the-licensed premises in question. Where the circumference of the result-ant circle cuts a village into two parts, the whole of such village shallbe excluded unless more than half of it falls within the said circum-ference ; but where in any area there is more than one tavern, hotel,,or place licensed to sell beer or porter, provided no. two of them aremore than one mile apart from each other, the voting area for all suchtaverns, hotels, or places shall be one and the same, but the circle-comprising such voting area shall have its centre at as central a point-as possible. ”
There were two taverns affected by the poll and the Government Agent-had therefore to find appoint equidistant between them and draw a circle.
SWAR J.—Jayasinghe v. Dayaraine
-wdth a radius of two miles from that point, and include all those villagesthe whole of which, or more than half of which fell within the circumferenceof the resultant circle. If the boundaries of the villages were definiteand well known it was merely a matter of mathematical calculation.The respondent said he did all that he was required to do under Rule 11 ;that the boundaries of the villages were definite and well knownrand thatacting upon information given him by the District Revenue Officersand the Village Headmen he determined the voting area for the polland prepared a preliminary list of persons entitled to vote in each of thevillages comprising the voting area. This list gave the names of thevoters under each village that fell within the voting area as determinedby Rule 5. When this list was put up for public inspection any personinterested in the poll could have objected on the ground that the names of-eligible voters from villages which were -wrongly excluded from the votingarea should be added to the list or that the names of persons in villageswrongly included should be struck out. The respondent in his evidencehas stated that there were no objections and that he prepared and pub-lished the final list on 30.10.51 in accordance with the provisions of
"Rule 5. The concluding part of this rxile provides that —
( * <
“ No name shall be added to or struck out from such final list after
publication, and the local option poll shall be held on such list which
shall he final and conclusive for all the purposes of these rules. ”
This should conclude the question at issue save for the submissionthat the voting area could not have been determined except with the•advice of the Advisory Committee. As I have already said, Rule 13would have no application if the boundaries of the villages involvedwere defined and well known. The respondent was cross-examined•on this point and he said that although he did not know the boundariespersonally, he was satisfied on the information he received from theHeadmen and the District Revenue Officers that there was no doubtabout the boundaries. It was argued that the respondent could notand should not have determined the voting area upon.sr^ch information.I cannot see how an administrative officer like a Government Agentcould ascertain the boundaries of villages except in this manner. Apoint was made of the fact that the village of Kolongolla which wasincluded in the list prepared for the poll held in 1951 for the vjsry sametwo taverns was omitted from the list for the poll of 1952. The respon-dent explained that on the earlier occasion the circle was drawn on asmall scale map whereas on the second occasion the map used was on avery much larger scale, and that upon a careful examination using graphpaper and counting the squares he was satisfied that more than half ofthe village of Kolongolla fell outside the circle.
I accept the evidence of the respondent that the boundaries of thevillages that had to be included in or excluded from the voting weredefinite and well known. No evidence has been led to satisfy me to thecontrary, and it seems to me absurd to suggest that the boundaries ofvillages cannot be readily ascertained even though a survey map doesnot show them in detail. In the result I would hbld that there was noneed to( ascertain or fix the exact boundaries of th^ voting area and that
Ghiillain ». Commissioner of Income Tax
the respondent, therefore, was entitled to determine the voting areaby the application of Rule 5 which does not require him to act upon the-advice of the Advisory Committee. Being satisfied that the respondentacted in accordance with Rule 5 and that no occasion arose for the applica-tion of Rule 13, I take the view that the list published on 30.10.51 wasfinal and conclusive and that it is not open to the petitioner or any otherperson to challenge its correctness as regards the poll held on 26.1.52.
The application is dismissed with costs.
D. W. JAYASINGHE, Petitioner, and D. G. DAYARATNE (Assistant Government Agent )
SWAX J.—Jayasinghe i I.ayaratne