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Present: Drieberg A.J.
In the Matter of an Application for a Writ of Quo Warranto.
UKKU BANDA vs. GOVERNMENT AGENT, SOUTHERNPROVINCE, et al.Quo Warranto—Election of Village Committee—Members not in officede facto—Regularity of writ—Proper parties as respondents.
An application for a writ of quo warranto on the ground of awrongful usurpation of office will not be granted, unless the personagainst whom it is directed is in office de facto.
*Where such an application was made to set aside the election
of a Village Committee at a meeting of the inhabitants of acertain subdivision, held with the Government Agent of theProvince as Chairman.
Held, that the Government .Agent was not a proper party tobe made respondent to the proceeding.
H. V. Per era, for petitioner.
* Mervyn Fonseka, C.C.t for 1st respondent.
A. E. Keuneman, for 3rd, 5th, and 8fch to 14th respondents.
T. Weeraratne, for 4th, 6tli, and 7th respondents.
July 23, 1927. Drieberg A.J.—
This is an information in the nature of quo warranto by whichthe petitioner seeks for a declaration that the election of the 2nd16 the 13th respondents on March 10, 1927, as the Village Committeeof a certain subdivision of Akmimana is invalid, and that it be setaside.
( 169 )
The election was one held under the provisions of the VillageCommunities Ordinance, No. 9 of 1924. The 1st respondentMr. L. W. 0. Schrader, is the Government Agent of the SouthernProvince, and as such summoned the meeting and- presided at theelection. The 14th respondent is the Mudaliyar of Kitulampitiya;he apparently helped the 1st respondent to conduct the election,and the petitioner alleges in his affidavit that after their electionthe 2nd to the 13th respondents “decided" that the 14th respondentshould be their Chairman.
Mr. Fonseka contended that the 1st respondent should not havebeen made a party to these proceedings, and in my opinion he isright. An information quo warranto- is one directed against thosewho wrongfully claim or usurp an office and the applicant shouldmake only such persons parties. If an inquiry is directed thepresiding officer may be an important witness for one side or theother, but he has no place in the proceedings as a party. I uphold theobjection but, by agreement of parties, I make no order as to costs.
The 14th respondent too is not a necessary party to this appli-.cation; he has hied a proxy together with the other respondentsand I was not asked to make a separate order regarding him.
The petitioner asks that the election be set aside on severalgrounds, among them being that the method of taking th.e voteswas irregular and that the Headmen present intimidated andinterfered with those who wanted to vote for the Committeeproposed by the petitioner. Objection was also taken to thenotice summoning the meeting on the ground that it did not setout the villages which formed this subdivision; the notice, however,was not before me.
From the affidavit of the 1st respondent, the Government Agent,it appears that the petitioner did not bring these offences to hisnotice, that the Headmen were kept apart when the votes for thepetitioner’s nominees were taken, and that the petitioner at theconclusion of the meeting thanked him for the manner in whichhe had conducted the election, his only grievance being that the14th respondent had not treated him with proper courtesy andconsideration. It is, however, not necessary to consider thesecharges as the application must fail for another reason.
The meeting was held on March 10, 1927, and under section 15of the Ordinance the existing Committee had to continue untilJune 30, 1927, and the Committee elected on March 10 wouldcome into office on July 1 following. This application was madeon April 14, 1927, and on June 8 notice was issued on therespondents to show cause why it should not be allowed. At thattime therefore the existing Committee was rightly in office andfunctioning, and the 2nd to 13th respondents’ claim to exercise ioffice would not arise until July 1.
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The mere fact that the 2nd to 18th respondents had beenelected was not sufficient, as they had not entered on their officeand could not do so until July 1. “No instance has been producedin which the courts have granted an application in the nature ofa quo warranto where the party against whom it was applied forhas not been in the actual possession of the office. No such instancecan have happened; and all the cases cited are the other way. InRex v. Poyisonby 1 the court expressly held that there must be anuser as well as a claim in order to found such an application"(Buller J. in the King against WhitweU a). It is necessary to showthat the party against whom application is made is in officede facto and for this purpose it is not enoguh if the affidavit statessimply that the party has “accepted the office" without specifyingthe mode of acceptance (The Queen against Slatter 3).
The petitioner was not entitled to make this application, andI order that the rule issued on the respondents be discharged. Thepetitioner will pay the costs of the 3rd, 5th, 8th, 9th, 10th,11th, 12th, 13th and 14th respondents. There was no appearancefor the 2nd respondent, and Mr. Weeraratne for the 4th, 6th, and7th respondents did not oppose the application.
Mr. Fonseka as amicus curiae on the instructions of the Solicitor-General said that as the regularity of the election was questionedhe did not wish to leave unmentioned a matter which might affectthe question, and he drew my attention to the fact that the meetingwas held on March. 10, whereas under section 22 (1) of the Ordinanceit should have been held on a day within three months of the dateon which the term of office of the existing Committee should haveexpired. The term of the existing Committee ended on June 30,and the meeting for the election of the new committee shouldtherefore have been held on a date on or after April 1-
I do not think it necessary for me to express an opinion on thispoint.
* (1155) 1 VeseyJr. 245, 247.
4 5 T. R. 85.
311 Ad. ds E. 505.