Lnasitamby v. Government Agent, Northern Province.
Present: Jayewardene A.J.
INASITAMBY u. GOVERNMENT AGENT, NORTHERN
In the Matter of an Application for a Writ of Mandamus.
Mandamus—Election to Village Committee—Method of voting—Candidateacquiescing in method of election—Discretion of Court—Consequences!of issue of writ.
A candidate at an election to a Village Committee who has acquiescedin the method of voting adopted at the' meeting is estopped froiqapplying for a writ of mandamus on the ground that the procedure wasirregular.
Where a candidate is proposed for election it is not necessary to recordthe number of votes cast against him.
A Court before issuing a writ of mandamus, is entitled to take intoconsideration the consequences which the issue of the writ will entail.
PPLICATION for a writ of mandamus on the Government Agentof Northern Province.
H. V. Perera (with him S. Alles), for petitioner.—This is an applicationbased on section 12 (2) of the Village Communities Ordinance, No. 9 of1924. The question of the election of members to a Village Committee isa question or resolution under this section and therefore has to be deter-mined by a majority of the votes of those present. This proceduresuggests that those against a particular member are entitled to have theirvotes recorded. Section 12 (3) gives the presiding officer a casting voteand therefore we must suppose that the votes for and against a particularindividual have been taken. Section 13 (1) distinctly states that “ atany meeting all questions and resolutions proposed thereat and thenumber of votes given for aijd against the same ” shall be entered in theminutes. It does not necessarily follow that all those who do not votefor a particular candidate are against his election, because there may bemany who may refrain from voting. This method presupposes the factthat the presiding officer knew the exact number of voters present,and in his own statement he says the number was between 600 to 700.A voter does not exercise his privilege by merely sitting in the hall, butby putting up his hand for or against the election of a particular candidate.
M.W. H. de Silva, Acting Deputy S.-G. (with him H. Basnayake, C.C.),for respondent.—This election was really under section 22 of OrdinanceNo. 9 of 1924. The Government Agent adopted the most practicalmethod for the election of committee members. As the number ofcommittee members is fixed, it is not possible to elect them one by oneaccording to the majority of votes cast for or against each, as then thenumber elected may be less or more than the number required. As thepetitioner acquiesced in the procedure adopted by the presiding officer,he is now estopped from impeaching the validity of the election.
2J. B IBCSl (4/52)
JAYEWARDENE A.J.—Jnasitamby v. Government Agent, N. P.
Counsel cited R. v. Slythe1; R. v. Parry3; Madanayake v. Schrader et al.‘;Wijeratne v. Obeyesekere4; Kartigesu v. Government Agent, NorthernProvince.11
S. Alles, in reply.
June 6, 1932. Jayewardene A.J.—
The Government Agent, Northern Province, issued a notice datedApril 1, 1932, convening a meeting of the inhabitants of the subdivisionof Pandaterippu comprising six villages to be held at St. Anthony’sChurch premises, Mathakal, on Thursday, May 5, 1932, at 3.30 p.m., forthe purpose—
of deciding the number of members (not less than six) to serve on
the Village Committee to be elected for the subdivision and ofelecting such a Village Committee to hold office for three yearsfrom July 1, 1932, and
of deciding whether the power of making rules should be delegated
to such committee.
A meeting was accordingly held, and it was duly decided that a com-mittee of forty be elected. Thereafter the election of the committee offorty took place.- The petitioner states that the Government Agentproceeded to read out the names mentioned in two lists handed up tohim by two of the persons present at the meeting and he took the votesof those in favour of the election of each of the persons whose nameappeared in the lists handed to him, but did not ascertain the numberof votes against the election of any of the said persons. Having ascertainedthe number of votes in favour of the election of any of the said persons,the Government Agent declared that the candidates who had securedthe largest number of votes in their favour ranging from 649 to 289 wereduly elected. The Government Agent gives a slightly different versionin his affidavit, and the difference to my mind is not of much importancefor the decision of the point raised at the argument. According to himthree lists, marked A, B, and C, were handed to him for the purpose ofbeing put up for election. Five names from each list were put to thevote alternately. The Mudaliyar announced the name of each candidateas it was put to the vote, and the candidate took up a position fromwhich he could be seen by the voters. The name of the petitioner, whois the Chairman of the outgoing Village Committee, was announced firstand the votes for him taken. He secured only 291 votes out of about700 present. No protest, was made against the procedure that wasadopted and followed in the election of the committee, although accordingto the petitioner about two and a half hours elapsed in the election ofthe committee. /
It is contended on behalf of the petitioner that the method of electionof the members of the committee is contrary to the provisions of section12 (2) of Ordinance No. 9 of 1924. That section provides that all questions
= 29 N. L. R. 3S9.
!* 30 N. L. R. 103.
I s 31 N. L. R. 141.-
6 B. & C. 240.
6 Ad. & E. 810.
JAYEWARDENE A.J.—Inasitamby v. Government Agent, N. P. 35
or resolutions shall be determined by a majority of the votes of thosepresent and entitled to vote, and the next section say that the Govern-ment Agent shall enter or cause to be entered in the minutes of everysuch meeting the questions or resolutions proposed thereat and thenumber of votes given for and against the same. It is argued that theGovernment Agent was in error in not calling for the votes against eachcandidate for membership of the committee after recording the votesin his favour. In effect, that it was a question under section 12 (2)of the Ordinance, whether each candidate whose name was put to themeeting should be elected to the committee or not, and if, for example,in the case of the petitioner who secured only 291 votes, there were only100 adverse votes, he still had a majority of. 191 votes and the questionmust be answered in the affirmative and the petitioner should be declaredelected.
In the election of committees, it is not customary to record the votesagainst a candidate whose name has been proposed, nor indeed are suchvotes recorded in any election. Counsel could not draw my attentionto any instance or any case in which that had been done. Section 22. of the Ordinance No. 9 of 1924 provides for the election of committeesand sub-section (2) enacts that the voting shall be by ballot if so providedfor by rules made under section 29. Voting by ballot would do awaywith the necessity of the show of hands or of saying “ aye ” and wouldsecure secrecy—but in voting by ballot, no adverse votes but only votesin favour of a candidate are recorded. I do not think that section 13 (1)when it provides that the Government Agent shall enter in the minutesthe number of votes given for or against a question or resolution can beconstrued as affecting or altering the customary mode of electing themembers of a committee. I am therefore unable to hold that therewas any irregularity in this respect.
In his affidavit the Government Agent says that no rules for votingby ballot have been made under section 29, and in the absence of suchrules he considered the method which he adopted to be the only practi-cable one of electing a fixed number of members. At the argument,other methods were discussed, but as far as I could understand no othermethod was feasible. The Government Agent has successfully adoptedthis method of election at 36 other elections held this year in the NorthernProvince, and probably this method has been followed at many othermeetings in the other Provinces in the Island. The grant of a writ ofmandamus is a matter for the discretion of the Court. It is not a writof right and it is not issued as a matter of course. The writ may berefused not only upon the merits, but also by reason of the special circum-stances of the case (10 Halsbury 78). The exercise of the discretionmust of course be governed by certain principles. The Court has thepower but in a particular case may think that it is not advisable to granta writ (Rex v. Leicester Union *). In Rex v. Garland 2 the Court restedthe refusal entirely on the. special circumstances of the case, CockburnC.J. explaining the circumstances to be that the effect of granting themandamus would be most prejudicial. That principle was affirmed in'2. Q. B. 632, 637.- (1870) L. R. 6 Q. B. 26U.
ovvrt.ixJJt.iNA.J.—Inasitamby v. Government Agent, N. P.
Rex v. Churchwardens of All Saints, Wigan.1 Lord Chelmsford said “ TheCourt may refuse to grant the writ not only upon the merits, but uponsome delay or other matter, personal to the party applying for it; inthis the Court exercises a discretion which cannot be questioned
It has been held, however, that the discretion must be exercisedaccording to well-settled principles, and where the duty is purely minis-terial, a writ of mandamus will be issued (King v. Bishop of Sarum2).These principles were adopted in the local case of Madangyake v. Schrader3.
On a motion for a quo warranto information it was held in King v.Parry4 that it was discretionary in the Court to grant or withhold theapplication, even where a good objection is shown, and the Court refuseda rule on the ground that no fraud was imputed, that no mischief appearedto have been done, and that the prosecution, if successful, would probablydissolve the corporation, and that the prosecutors appeared to have thatintention. The principle governing both writs pf mandamus and quowarranto are similar. It cannot be stated as a proposition of law, or asettled point of practice that leave to file an information will not begranted, merely because the effect may or even will be to dissolve thecorporation. The Courts have in some cases permitted these informationsto be filed, where the effect has been thereby to dissolve the corporation,but that has been where strong cases have been made out. Lord Mansfieldtreats the discretionary power of the Court not as a matter disputed orrequiring proof, but as a settled principle to be applied (Rex v. Dawes5arid Rex v. Marten"). He states the grounds on which the Court proceededin their application of the principles. First, the light in which therelators, informing the Court of the defect of title, appear from theirbehaviour and conduct. Secondly, the light in which the applicationitself manifestly shows their motives, and the purpose which it is calcu-lated to serve. Thirdly, the consequences of granting the information.
In Rex v.. Slythe' Abbott C.J. observed “If this rule were madeabsolute, we might be called upon in the very next term to grant hundredsof the same description, to the disturbance of almost every corporationin the Kingdom. This consideration might suffice to make us dischargethe rule even if some slight doubt existed ”.
Then it was contended for the respondent that the petitioner was presentand acquiesced in the election of the members of the Village Committee.In fact, he was himself put forward, and he procured 291 votes. It is ageneral rule of corporation law that a corporator is estopped from comingforward as a relator to impeach a title conferred by an election in whichhe has concurred (Rex v. Lane 3 and Rex v. Cobb . It is a valid objectionto a relator that he was present and concurred at the time of the objection-able election even though he was then ignorant of the objection, for acorporator must be taken to be cognizant of the contents of his owncharter and of the law arising therefrom (Rex v. Trevanon70). Where acorporator has attended and voted at a meeting, he will not be allowed
' (187(!) 1 A. C. 611, 620.
= (191G) 1 K. B. 460.
20 N. L. R. 380.
■t <i Ad. <1* E. 810. 112 E. It. 311.s 1 W. B. 634.
c 4 Burr. 1062. 2022 , 2120.
– 6 B.. <f C. 240. 108 E. R. 441.
R (1S27) 9 Dow. Ry. K. B. 1S3.
» 4 Dow. ,P Ry. M. C. 203.
"* 2 B. .(■ Aid. 339 *f 479. 106 E. R. KM.
to become a relator, unless he shows that at the time of the election hewas ignorant of the objection subsequently taken (Re x v. Sly the (supra) ).A relator who has acquiesced in and himself adopted the mode of votinghe now objects to, is disqualified from applying for a rule (Rex v.Lofthouse '), and a rule will not be granted to a relator who has participatedin the alleged irregularities on which he based his application (Rea: v.Colclough *). The petitioner took part in the election and was himself acandidate. I think that he cannot ask for a rule.
The observations of Lord Denman C.J. in The King v. Parry (supra)are worthy of note “The difficulties that might attend the reconstructionof corporations once dissolved, and the important functions now vestedin municipal bodies, would induce increased circumspection in our pro-ceedings. The inferior officers ought, indeed, to conform with care tothe provisions of the law :the wilful departure from them this Court will
visit with severity; and even negligence may not always escape animad-version; but our discretion as to the issuing of quo warranto informationsmust be regulated by a regard to all the circumstances which attend theapplication and all the consequences likely to follow.' Upon the whole,for the reasons stated, we think we act most in accordance with thecurrent of authorities, with the Statute, and with the public interest,in refusing the permission.”
The principles enunciated in these cases appear to me to be applicableto the present case. In my view this is not a case in which a writ ofmandamus should issue. The application is therefore refused and therule discharged with costs.
INASITAMBY v. GOVERNMENT AGENT, NORTHERN PROVINCE