HLERAT, J.—Peiria v. Gunosekero,' ■
Present: Herat, J.
A. G. PETRIS, Petitioner and K. V. M. GUNASEKERA and another,
S. C. 243 of 1963—In the matter of an Application for a Mandatein the nature of a Writ of Quo Warranto under Section 42 of
the Courts Ordinance
Quo warranto—Refusal of writ on the ground of f utility.
A writ of quo warranto will not be granted if at the time of issuing thewrit the grant of the writ has become, in the opinion of the Court, futile.
The petitioner applied for a writ of quo warranto on the ground that the 1strespondent was not the lawful holder of a certain appointment. Before theapplication was listed for argument the appointment of the 1st respondentwas revoked by tho appointing body (the 2nd respondent).
Held, that, in the circumstances, the issue of the writ of quo warranto wasfutile.
for a writ of quo warranto.
H. W. Jayewardene, Q.C., with N imal Senanayake and Prins Rajasooriya,for the Petitioner.
V. Tennekoon, Deputy Solicitor-General, with H. L. de Silva, CrownCounsel, for the Respondents.
September 3,1963. Herat, J.—
This is an application by the petitioner for a writ of quo warrantoagainst tho two respondents. The application arises under the followingcircumstances : Tho petitioner, at all relevant times, was functioning astho Village Headman of Hunupitiya in Siyane Korale West. He hasnot boon dismissed from service or compulsorily retired on the ground ofago, but it is stated that he has been sent on retirement on the ground ofabolition of office,….
HERAT, J.—Petrie v. Ounasekera
The first respondent was appointed Village Headman of Hunupitiya asfrom 1st May 1963 by the second respondent who is the Government Agentof the Western Province. The petitioner states that the office he heldhas not, in fact, been abolished and he neither was dismissed nor retiredon the ground of ago or inefficiency or on any other legal ground. Hestates that he still continues to hold the office of Village Headman ofHunupitiya and that the first respondent is a usurper of the office inquestion.
The petitioner, by his petition, prays “ for a declaration that the firstrespondent is not the lawful holder of the office of Village Headman ofHunupitiya and not entitled to function in such capacity On theseaverments this Court issued notice upon the respondents. Affidavitswere filed and the matter was listed for argument on or about the 24thAugust 1963. However, the first respondent filed an affidavit tothe effect that his appointment had been revoked with effect from17th August 1963 by the second respondent and that with effect from thatdate, namely the 17th August 1963, he no longer claimed to be theVillage Headman of Hunupitiya or was functioning as such. This factis not disputed by the parties.
. Now, the granting of a writ of quo warranto is a matter, which is in thediscretion of this court and, in our opinion, this court will not grant sucha writ if at the time of issuing the writ the grant of that writ has become,in the opinion of this court, futile. The very purpose of this application,as shown in the words quoted above from the prayer of the petition and infact from the nature of the application itself, is to remove some usurperwho is usmping or in unlawful occupation of a public office.
In the instant case, on the admitted facts, from the 17th August 1963the first respondent, against whom the writ is sought, is not usurping thepublic office in question and not, in fact, in unlawful occupation of thatoffice. The issue of the writ would therefore be, in our opinion, futile.There may be circumstances in appropriate cases where after notice hasissued there may be a change of circumstances, but the court may stillissue a writ if valid grounds existed at the time the notice was issued forthe writ to be granted. There may be cases where despite the change ofcircumstances the granting of a writ has not become futile. It is notnecessary to discuss those circumstances any further in this case. It issufficient to find that in view of the present case the granting of thewrit has become futile and for that reason wo exorcise our discretion inrefusing the application. In all the circumstances of the case we directthat each party should bear his own costs.
Abkyesundere, J —I agree.
Application dismissed. –
A. G. PEIRIS , Petitioner and K. V. M. GUNASEKERA and another, Respondents