Albert Petris v. Gunarotne.
1946Present: Dias J.ALBERT PEIRIS, Petitioner, and GUNARATNE, Respondent.Application fob a Writ of Mandamus on the AssistantGovernment Agent, Kauttaka.
Writ of mandamus—Town Council—Preparation of list of voters—Failure ofGovernment Agent to perform statutory duties—Town Councils Ordinance,No. 3 of 1946, 8s. 8 (7) (6), 9 —Power of Court to issue writ after statutorytime has passed.
Where a person duly made his claim, in terms of section 9 (3) of theTown Councils Ordinance, to have his name inserted with the “ doublequalification mark ”, but there was a failure on the part of theGovernment Agent to perform his statutory duties—
Held, that mandamus would lie.
Held, further, that the Court has jurisdiction to issue the writ ofmandamus for the performance of a public duty even when the prescribedstatutory time has passed.
DIAS J.—Albert Peiria v. Guruzralnc.
HIS was an application for a writ of mandamus against the AssistantGovernment Agent, Kalutara. The petitioner submitted that, in
consequence of some defective procedure in the Kachcheri, the respondentfailed to perform his statutory duties of deciding his claim to have hisname placed with a “ double qualification mark ” on the list of votersof the Town Council of Alutgama and, thereafter, of revising thepreliminary list of voters and publishing the revised list.
N. E. Weerasooria, K.C. (with him E. D. Cosme), for the petitioner.
H. W. R. Weeraaooriya, £7.(7., for the respondent.
Cur. adv. vull.
November 8, 1946. Dias J.—
It is common ground that the petitioner L. Albert Peiris of Alutgamapossesses the qualifications necessary to entitle him to have his nameplaced on the list of voters of the Town Council of Alutgama by havingthe “ double qualification mark ” placed against his name in terms ofsection 8 (1) (6) of the Town Councils Ordinance, No. 3 of 1946, to showthat he is a person qualified to be a candidate for election to the TownCouncil. Admittedly, his name has not been so distinguished, althoughthe names of his wife and servant have been.
Before a general election can be held, it is the duty of the GovernmentAgent to prepare for each electoral division a list containing the names ofpersons qualified to vote under section 7. It is his duty to mark in thislist with the “ double qualification mark ” the names of every personwho is entitled under section 8 (2) to have his name so marked.
This preliminary list is prepared by the Government Agent. Havingdone so, it is his duty to exhibit a notice in the three languages at specifiedplaces indicating that the lists are open for inspection and that at a timeand date specified in the notice he will attend at a specified place to hearall claims for the insertion of any name or “ double qualification mark ”in the list and to hear objections—section 9 (1) (a), (b).
Section 9 (2) provides that when the Government Agent attends tohear claims or objections, he is to decide them in a summary mannerafter such inquiry as he may deem necessary either on that date or withinthe period of seven days next succeeding that date. Every such decisionshall be final and conclusive.
Section 9 (3) provides that no claim for the insertion of any name ordouble qualification mark in any of the lists shall be entertained “ unlessthe claimant shall have submitted the claim in writing not less thanfourteen days before the date specified in the notice exhibited under sub-section (I) of section 9 When such claim is received, it is to be postedup on the notice board of the Council not less than ten days before thatdate.
After the determination of all claims and objections, the GovernmentAgent or a person deputed by him shall revise the lists ; and copiesthereof certified by the Government Agent are to be exhibited at theoffice of the Town Council.—Section 9 (6).
The lists, so certified under section 9 (6), shall be final and conclusiveof the question whether or not a person is qualified to vote or to be acandidate for election either at a general or by-election.—Section 9 (7).
DIAS J.—Albert Petris v. Ounaratne.
In this case the respondent published the notice marked X on July 8,1946. He intimated that the lists were open for inspection in terms ofsection 9 (1) (a). He further intimated that on August 21, 1946, eitherhe or his deputy would attend at the Town Council to hear claims andobjections in terms of section 9 (1) (6). The public were especiallywarned of the requirement in section 9 (3) for submitting claims inwriting to him not less than fourteen days previous to August 21, 1946,i.e., to reach him on or before August 6.
The petitioner’s name appears in the list, but he has not been awardedthe double qualification mark. The duty was therefore cast on him tomake his claim and to make it in time.
It is common ground that neither the respondent nor his deputyattended at the Town Council on August 21, 1946, as specified in thenotice. The respondent in his affidavit, Y 2, has stated that he did notdo so “ as no claims or objections had been received by him in writingfrom any person whomsoever in terms of the said section ”.
It is obvious from the affidavit (Y 1) filed by the Kachcheri Mudaliyarof the respondent that the latter had deputed to him “ the duties ofattending to the papers ” relating to the election work in the District ofKalutara. Therefore when the respondent says he did not attend at thespecified place because no claims had been received, he is merely going onwhat his Kachcheri Mudaliyar reported to him. Therefore if theKachcheri Mudaliyar or his subordinates had been negligent or dishonest,the Government Agent would not necessarily know about it.
This application for- a mandamus was filed in this Court on October 11,1946. Notice was served on the respondent on October 19. Thereforeon that date the respondent knew what the petitioner’s case was. ThisCourt ordered the matter to be listed for argument on November 4, andthe Attorney-General was informed. The respondent therefore hadsixteen days in which to contact the Law Officers and the Crown Proctor,place his case before them and have his affidavits in this simple caseprepared by November 4. The case however could not be taken up onthat day. It was taken up for argument on November 7 and therespondent’s affidavits Y 1 and Y 2 bearing date November 7 were onlyserved on the petitioner’s lawyers on the morning of the day fixed forargument. Mr. Weerasooria, K.C., has complained that Y 1 and Y 2should be rejected out of hand because of their lateness. He complainsthat this delay has prevented him from submitting supplementaryaffidavits.
I decided to admit Y 1 and Y 2 leaving the question of the credit to beattached to them for subsequent decision.
The petitioner’s case is that he made his claim in writing by his letterP 2 dated July 20, 1946, to which he got no reply. He then wrote letterP 3 inviting attention to P 2 and reiterating his claim. It will beremembered that in terms of the notice, claims received after August 6would be shut out. The petitioner says he received no reply to P' 3.He says he then wrote P 4 dated August 20, 1946, and invited attentionto P 2 and P 3.
DIAS J.—Albert Peirt-i v. Qunaratne.
Now if this evidence is true, the respondent had received not oneclaim but two claims from the petitioner. If so, it was his statutoryduty to have attended at the Town Council on August 21 to decide thoseclaims.
To the petitioner’s letter P 4 dated August 20, 1946, he received thereply P 5 from the respondent. If the copy of the letter P 5 attachedto the petitioner’s affidavit is a true copy, and there is no evidence thatit is not, it is a curious circumstance that this official letter containsneither a- date nor a number. In P 5 the reference to the earlier letters isignored. The respondent does not even condescend to Btate that thepetitioner’s references in P 4 to two earlier letters is not understood as nosuch letters had been received at the Kaehcheri. All that P 5 says isthat no action can be taken “ as your claim has been received too late ” .
The Kaehcheri Mudaliyar’s affidavit is unsatisfactory. In paragraph 5he says that he did not receive any letter dated July 20, 1946, or August 4,1946. He adds “ had the said letters, .been received at the Office of theAssistant Government Agent I should have received them and have dealtwith them ”. He does not say whose duty it is to receive letters comingby post or brought by messenger, and whether a register is maintained, asis done in most Government Departments, of all letters received. Thereis no affidavit from the Subject Clerk in charge of this particular matter,who should be in a position to give more direct evidence than theKaehcheri Mudaliyar as to whether such letters were in fact received.
I am entitled to make this comment because there is the suggestionin the Kaehcheri Mudaliyar’s affidavit in paragraph 10 that the letter P 4“ had been placed in the Office file and appears to have been fraudulentlyextracted therefrom ”. The best person to give evidence of that factis the Subject Clerk in charge of that file or the Record Keeper, fromneither of whom has an affidavit been filed.
In paragraph 8 the Kaehcheri Mudaliyar says that a letter datedAiigust 20, 1946, “ was received and dealt with by me and accordingto the best of my recollection the letter was to the effect that thepetitioner was entitled to be a candidate and that his name did notappear in the list as a person entitled to be a candidate ” He continues“ I am definite that the said letter contained no reference to any lettersdated July 20, 1946, and August 4, 1946, alleged to have been writtenby the petitioner to the Assistant Government Agent, Kalutara. Iverily believe that if the said letter dated August 20, 1946, containedreference to two previous letters I should have caused an investigationto be made as to the receipt or otherwise of the said letters”. TheKaehcheri Mudaliyar does not explain 'why the letter P 6 is undated.Surely it is most improbable that letters from a Kaehcheri or anyGovernment Department should be undated. The suggestion under-lying the Kaehcheri Mudaliyar’s affidavit seems to be that the petitionerhaving made no claim until August 20, 1946, caused that letter to befraudulently extracted from the official file, because if it was allowed toremain, it could be produced in Court, when it would be manifest that itcontained no reference to two earlier letters.
The petitioner, on the other hand, submits that the Kaehcheriauthorities suppressed that letter because, if produced, it would prove
DIAS J.—Albert -Petris v. Ounarafne.
the truth of the petitioner’s case and a-serious irregularity in the perform-ance of his statutory duties by the respondent or gross negligence on thepart of his subordinates would be disclosed.
I have anxiously considered this matter and after weighing all thecircumstances, I feel bound to hold against the respondent on thiB point.The delay in filing the affidavits, the failure to tender affidavits from theSubject Clerk or the Record Keeper, who had custody of the file, theundated and un-numbered letter P 5, all indicate that the respondent’scase is improbable. I doubt the accuracy of the Kachoheri Mudaliyar’sstatement in the affidavit that the petitioner saw him and admitted" that he had not sent any application earlier than the letter datedAugust 20 as he had not scrutinized the notice dated July 8,1946, and wasunaware of its contents ”
It seems highly improbable that if the petitioner had actually causeda Kachcheri official to abstract documents from an official file in order tosupport a false application for a mandamus, he would at the same timeadmit to the Kachcheri Mudaliyar that he only thought of making hisclaim after the due date had passed. The lateness in filing this affidavitprecluded the petitioner from meeting this allegation by filing a counteraffidavit.
I hold that the petitioner did, in fact, make his claim in time and thatowing to some defective procedure, the claim did not reach the AssistantGovernment Agent. There has been a failure therefore on the part ofthe respondent to perform his statutory duties. The case of De Soysa v.Dyson 1 has been cited to me by Crown Counsel. I do not think thatcase applies. As pointed out by the Acting Chief Justice, the writ ofmandamus is not issued on the ground that a duty has been performederroneously. It is issued to compel the performance of a neglected ordisregarded public duty imposed by law. That is what has happenedhere.
Crown Counsel argued that even if it is held that the allegations madeby the petitioner are correct, nevertheless mandamus will not lie becauseunder section 9 (2) and section 9 (7) the statutory time has passed andthe lists are now final and conclusive. I do not think that argument issound. For the lists to be held to be final and conclusive the precedingsteps should have been regularly taken. This has not been done and thepresumption does not arise.
I therefore hold that mandamus will lie and I direct that the writshould issue. The respondent will pay to the petitioner the costs ofthese proceedings.
P.jS.—Since this judgment was written, Mr. Weerasooriya, C.C.,has brought to my notice the case of It. v. Hanley Revising Barrister 2which shows that this Court has jurisdiction to issue the writ for theperformance of a public duty even when the prescribed statutory timehas passed.
Rule made absolute.
(1945) 46 If. L. R. 351.
(1912) 3 K. B. at p. 531.
ALBERT PEIRIS, Petitioner, and GUNARATNE, Respondent