SOERTSZ J.—Jayasooria v. de Silva.
Present: Soertsz J.
JAYASOORIA v. DE SILVA.In re Application for Writ of Quo warranto.
Writ i)f quo warranto—Election, of Vice-Chairman of Urban Council—Irregularity in voting—Result not affected—Relator acquiesced in pro-ceedings—Delay in making application.
In an application for a writ of quo warranto to have an election to anoffice set aside, the Court will not, in the absence of bad "faith, grant thewrit where the irregularity complained of did not really affect the resultof the election.
The Court will also not grant the writ where the relator acquiescedin the proceedings or where there has been delay in making theapplication.
fTlHIS was an application for a writ of quo warranto to have the election
1 of the respondent as Vice-Chairman of the Urban Council of Kolon-nawa declared null and void.
C. V. Ranawake (with him M. Swaminathan), for petitioner.
L. A. Rajapakse, for respondent.
This is an application for a writ of quo warranto and its ultimate objectis to have the election of the respondent on December 9, 1939, as Vice-Chairman of the Kolonnawa Urban Council, for the year 1940, declarednull and void, on the ground that the said election was “ not decided upon,and done by the majority of the members present ” on that occasion, asrequired by section 23 of the Local Government Ordinance (Vol. V, Chap.195, Legislative Enactments), read with by-law 14 (b) published in theGovernment Gazette No. 7,973.
The admitted facts are that, on the day on which the respondent waselected Vice-Chairman, there were eight members present, including theChairman. One member, by name W. P. Hendrick Perera, proposed andanother, J. D. William, seconded that the member named L. R. Perera,be re-elected Vice-Chairman for the year 1940. Thereupon, the Chairman,
A. J. Tudugalla, proposed as an amendment that W. A. de Silva, thatis the present respondent, be elected as Vice-Chairman for 1940. Themember J. D. William, who had seconded the motion, seconded thisamendment as well. The amendment was put to the house, and thevoting resulted as follows:—Ayes: Messrs. D. A. J. Tudugalla, T. P. de
S.Munasinghe,'W. A. de Silva, and Dr. H. A. Dirckze. Noes: Messrs. L.R. Perera and W. Hendrick Perera; Messrs. J. D. William and D. C.Liyanage declining to vote. The motion was then put to the house, andwas declared lost, the voting being as follows : —Ayes : Messrs. L. R.Perera and W. P. Hendrick Perera. Noes : Messrs. D. A. J. Tudugalla,
T.P. de S. Munasinghe, W. A. de Silva, and Dr. Dirckze; Messrs. J. D.William and D. C. Liyanage declining to vote. The Chairman declaredMr. W. A. de Silva duly elected as Vice-Chairman for 1940.
Cur. adv. vult.
July 9, 1940. Soertsz J.—
SOEKTSZ J. ifayasooTia v. de Silva.
The next monthly meeting of the Council took place on January 13r
The minutes of the meeting of. December 9, 1939, were read and.confirmed in the presence of Mr. L. R. Perera and of his proposer andseconder, and thebe was no question or dissent in regard to the validity ofthe election made on December, 9, 1939. The respondent took his oathof office on January 5, 1940, and was from that date, by virtue of hisoffice, a Justice of the Peace and Unofficial Magistrate. On February 9,1940, the Chairman in the excercise of powers conferred on him by section35 (2) of the Urban Councils Ordinance, No. 61 of 1939, authorised therespondent to do and perform certain administrative acts, and the affidavit,submitted by the respondent shows that he has performed many acts in hiscapacity of Vice-Chairman, as well as in his capacity of a Justice of thePeace.
The present application was filed in the Registry of this Court, onMay 1, 1940, almost five months after the date of the election, and thequestion that now arises before me is whether I should exercise thediscretion that is vested in me to allow the application.
I must say at once that I agree with the contention of the petitioner’sCounsel that the method of voting was contrary to the requirement of theOrdinance.,,. The section and the by-law I have already referred to putthat fact beyond question. The section enacts that “all acts whatsoeverauthorised or required by virtue of this or any other Ordinance to be doneby any Council may and shall be decided upon and done by the majorityof members present . . ..” And the by-law provides that “on any
question being put whether in Council or Committee . . everymember Dresent shall record his vote, either for the Ayes or for theNoes ”.
Now, in this instance, the motion was lost and the amendment wascarried by four votes. The members present numbered eight. Fourwas therefore not a majority of the members present. Tbe words of thesection are by the. majority of the members present, and not “by themajority of the members present and voting ”. The majority was,therefore, not a majority in confirmity with section 23, and the votingitself was not in conformity with the by-law, which requires every memberpresent to vote Aye or No. In this instance, two members declined tovote. In that emergency, the Chairman should have invited the attentionof the two declining members to the requirement of the by-law, and ifthey did not wish to vote they could have, or could have been made towithdraw from the meeting. If that had been done there would havebeen the required majority to support the election of the respondent.Looking at the matter in another way, if the members present had notacquiesced in the way the votes were taken, if for instance, Mr. L. R.Perera and his proposer and seconder had made prompt objection, theworst that could have happened from the respondent’s point of view isthat the two “ declining ” members might have voted in support of themotion. That would have resulted in an equality of votes, and in thatcontingency, the Chairman’s casting vote would have come into operationby virtue of the proviso to section 23. In the light of the proceedings ofDecember 9, 1939, it is perfectly obvious that it would have been cast in
The King v. Wijeyesekere.
favour of the respondent. The result is that in effect and in substance,the majority of the members present were in favour of the respondent andalthough the letter of the law has not been fulfilled, its spirit has beensatisfied. When in that state of things a voter such as the petitioneracting clearly on behalf of parties, who had acquiesced in the procedureadopted, comes forward insisting upon the letter of the law, straining ata gnat so to speak, a Court exercising a discretion vested in it, may wellrefuse to interfere in this extraordinary manner. It has been repeatedlylaid down by the Judges on occasions like this that however clear, in pointof law, the objection may be to the respondent’s title to office, the Courtin exercising its discretion will have regard to, and be influenced by (a) theconduct, motives or interest of the petitioner, (b) the consequences whichmay result from the granting of the relief sought. In Rex v. Ward1,Blackburn J., as he then was, said that an irregularity not really affectingthe result of the election to an office, would not in the absence of badfaith, induce the Court to grant a quo warranto. In the course of hisjudgment he observed as follows:—“We think that the mistake com-mitted here has produced no result whatsoever; that the same person hasbeen elected who would have been elected if the election had beenconducted with the most scrupulous regularity and that the defendant’stitle, if bad at all, is only bad, as I may say, on special demurrer. Weought, in the exercise of our discretion, to refuse leave to disturb the peaceof the District by filing the information ”. Moreover in this case therehas been delay in making the application, and that again is a matter aCourt will take into consideration when called upon to exercise its■discretionary power. I, therefore, refuse the application with costs.
JAYASOORIA v. DE SILVA