Present: Dalton J.
Application for a Writ of Mandamus on the GovernmentAgent, Northern Province.
Village Communities Ordinance-—Change of venue without writtennotice—Validity of election—Mandamus—Ordinance No. 9 oj 1924.ss. 9 and 10 (1).
Where, under the Village Communities Ordinance, a meetingwas held for the election of a Village Committee and the require*ments of the Ordinance, applicable to such meeting, as regardswritten notice within the proper time of the place of meeting, werenot complied with,—
Held, that the election was void.
A writ of mandamus would lie in such a case to iiucsiiou thevalidity of the election.
PPLICATION for a writ of mandamus on the Government Agentof the Northern Province directing him to convene a meeting
lor the election of a Village Committee for the Tellippalai subdivisionof the Province in conformity with the requirements of sections 9and 10 (1) of Ordinance No. 9 of 1924. It appeared that the Govern-ment Agent had called a meeting of the male inhabitants of thesubdivision to be held at the Court of the Village Committee onMay 14 for the purpose of electing a new committee in conformitywith the requirements of Ordinance No. 9 of 1924. The printednotice of the meeting was dated April 9, and was posted in suchplaces as were, in the opinion of the Government Agent, bestcalculated to give publicity. The meeting was also advertised bybeat1 of tom-tom. On May 7, the Government Agent, having formedrhe opinion that the Court of the Village Committee would not bespacious enough to hold the people likely to attend the elotion,made order that the election should be held at the Maha JanaKnglish School, which was half a mile from the originally selectedvenue. This change was published by beat of tom-tom, but uowritten notices thereof were affixed in the subdivision. On May14th tho election was held, and the present application was madeto have the election declared void on the ground that therequirements of section 10 (l) of the Ordinance were peremptoryso far as the place and time of the election were concerned.
H. V. I’erera (with S. llajaratnam), in support.
Gnana pragasam, for respondents.
Mervipi Fonsela, C.C.. for Government Agent, Northern Province.
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*927* March 30, 1927. Dalton J.—
AppUcatUiu, This application was argued before me on December 17, 1926,^Mandamus the parties then before me being the petitioner and the GovernmentAgent. The petitioner moves for a writ of mandamus on theGovernment Agent of the Northern Province, directing him toconvene and hold a meeting for the election of a Village Committeefor the Tellippalai subdivision of the Province, in conformity withthe requirements of sections 9 and 10 (1) of Ordinance No. 9 of 1924.
It does not appear from the proceedings prior to December 17that any order nisi has been made, or in fact that the Englishpractice governing these proceedings is followed here. All thepetitioner has asked for in this petition is that a writ of mandamusdo issue, and on July 20 last this Court ordered that notice thereofbe served upon the respondent.
On December 17 argument at considerable length was heard onbehalf of both these parties, it being contended for the petitionerthat the election already held was void, and it being argued on theother side that- even if the election was void (which was not conceded)the remedy of the petitioner was by quo warranto and not bymandamus.
A Village Committee of twenty-nine members was in fact electedon May 14 last, and a chairman was appointed. It was clear (there-fore that, assuming the petitioner was successful, and order* madethat the writ do issue, the rights of parties would be affected whohad had no opportunity of being heard. It has been laid down inRex v. Bankes 1 that in a rule for a mandamus to elect a maydr, asubsisting mayor de facto must always be a party. The principleupon which that decision proceeded govern this case also. I there-fore directed that, the chairman and committee, being in possession ofoffice, should be heard, if they wished, in defence of their rights.The matter thereupon stood down for notice to be given to them.
Thereafter, on February 11 the petition came before me again.Notice has been served upon the chairman and the twenty-ninecommittee men, and seventeen of them appeared to oppose thepetition. Counsel thereupon informed the Court that on theirbehalf he wished to adopt the arguments placed before the Court onDecember 17 by Mr. Fonseka, and that he had nothing further toadd.
The facts are as follows:—Applicant is a residence of TellippalaiWest, a village comprised in the Tellippalai subdivision of theNorthern Province. He is also qualified and entitled to vote in the■•lection of a Village Committee, and to be elected a member of suchcommittee.
In May la<t the first ejection was held under the provisions ofOrdinance No. 9 of 10*24 of a Village Committee for the subdivision ofTellippalai. There was a committee in existence when the Ordinance
1 3 Bun . 1U2.
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came into force, and under the provisions of section 15 of theOrdinance that committee continued in existence until June 30, 1926.It therefore became necessary, under the provisions of section 20, toelect a new committee to come into office on July 1. By section 22(2) it is provided that such election shall be held at a place withinthe subdivision and shall proceed in such manner, and he subjectso far as the same are applicable, to such conditions as are providedby the; Ordinance in the case of meetings of inhabitants.
The conditions governing meetings of inhabitants are, so far asthis application is concerned, set out in sections 9 and 10 of theOrdinance:—
The Government Agent shall, one month at least before the
day of holding any such meeting, give notice by beat oftom-tom, and by causing written notices to be affixed insuch places within the subdivision as are in his opinionbest adapted for giving the greatest publicity thereto, ofthe time and place appointed for holding such meeting andof the objects for which the same is to be held, and shall,in such notices, call upon the inhabitants to attend inperson at such meeting.
(1) Every such meeting shall be held at the time and place
so appointed and shall be presided over by the GovernmentAgent.
(2) Such Government Agent shall, for reasons to be recorded inthe minutes hereinafter referred to, have power to adjournany meeting, as often as need be, to a time and place to bementioned by him at the time of directing such adjourn-ment.
In conformity with these requirements, the Government Agentcalled a meeting of the male inhabitants of the subdivision to beheld at the Court of the Village Committee in Tellippalai on May 14for the following objects: —
To elect a Village Committee to consist of not less than six
persons to hold office for three years from July 1;
To decide whether the power of making rules should be
delegated to such committee; and
To decide whether the chairman of such committee should be
elected by the committee, or whether the chief headman ofthe subdivision should continue to be ex officio chairman.
The printed notice of this meeting is dated April 9, notices beingposted in the subdivision at such places as were in the opinion of theGovernment Agent best adapted for giving publicity thereto. Themeeting was also advertised by beat of tom-tom. The place ofelection thus notified was the Court of the Village Committee.
Applicationfor Writ ofMandamus
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Some time, however, between April 0 and May 7 the GovernmentAgent formed the opinion that the Court of the Village Committeewould be too small to hold the people likely to attend the election.He states that in previous years little interest was taken' in theelections, but the earlier elections in 1926 in other- subdivisionsshowed that more public interest had been aroused. On May 7,therefore, the election being fixed for May 14, he made order thatthe election would be held at the Maha Jana English School, whichis approximately half a mile from the originally selected venue forthe election. This change wns published by beat of tom-tom, butno written notices were affixed in the subdivision giving .notice ofthe change. On May 14 the election was held, 1,200 voters beingpresent out of about *2,500 eligible voters. Votes are given bv showof hands. A committee of twenty-nine members was elected, andit was decided that the Maniagar should continue as officiochairman. It is stated that a Village Committee officer was presentat the Court of the Village Committee, ou. the 14th to direct anvvoter who came there to proceed to the English school, but theevidence as to whether he was in fact there is contradictory.Although lie may have been told to see that people who went tothe Court were re-directed on to the school I am not satisfied hewas there himself as he states. The evidence shows he was actuallypresent at the meeting in the school, which is far more likely to betrue. Applicant does not say whether he was present and voted,or whether he was prevented from voting by the change in venueand insufficient notice thereof. He does urge, however, thatnumerous voters absented themselves from the meeting as they wereunaware of the change. Although there are affidavits from personspresent to the effect tlmt unauthorised persons voted, there is noaffidavit by anyone entitled to vote, who did not vote, to supportthe allegation that anyone was prevented from attending by thechange made in the place of election. It still remains to be decided,however, whether or not the election was a valid one. . It seems tome that the requirements of section 10 (1) are peremptory, so faras the place and time of the election are concerned. The placeappointed is the place published in the notice, of which due pub-lication must be given at least one month before the day of theelection meeting. The election was in fact held at a place of whichonly one. week’s notice was given, and that only by beat of tom-tom.There was no written notice of the change. Although the changewas made in what seemed to the Government Agent the best interestsof the- voters, it is impossible to say that there were not voters whowere misled by the change and so failed to exercise their right ofvoting. Whether or, not the provisions of section 10 (2) are appli-cable to an election meeting, it is clear that the provisions of theOrdinance which are applicable to such meetings have not been
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complied with as regards written notice within the proper time, of 18*7*the place at which the election was held. The election was in factheld at a place which was not the place appointed. In view of the——_
explicit terms of section 10 (1), in my opinion tbe election wastherefore void.Mandamus
Objection has been taken, however, on behalf of the originalrespondent that in any ease a mandamus does not lie, and that theonly remedy open to applicant is that of quo warranto. Whenthis objection was taken at the argument on December 17 thetwenty-nine committee men and the chairman were not parties to theapplication, although they bad in fact been functioning since July1 last, and no steps were taken by petitioner between May 14, thedate of election, and July 8, the date of his petition. It was urgedthat where a person or persons has or have been elected de factoto a corporate office, which office has been accepted and acted in,the validity of the election and the title to the office can be triedonly by quo warranto. If a mandamus is granted, it was urged itwould result in a fresh election, and there would be in existencetwo committees and possibly two chairmen.
The questions raised are not without considerable difficulty.
Mr. Fonseka relied principally upon the decision in Application fora mandamus on the Chairman of the Municipal Council,l and theauthorities cited therein. But that case, it seems to me, is essen-tiiilly different from this case on the facts. Here, as I have pointedout, in mv opinion the election was void, whilst there it was heldthat the election was not merely “ colourable. ” The gist of thedecision relied upon to support the argument in this case is thatwhere a person has been elected de facto to a corporate office, andhas accepted and acted in the office, the validity of the electionand the title to the office can be tried only by quo warranto, and amandamus will not lie unless the election can be shown to be merelycolourable. Wood Renton C.J. held there on the facts before himthat the election was not colourable and the office was full.
I understood, however, that Mr. Fonseka was prepared to gofurther, and to argue that even if the election was void still theremedy of applicant was by quo warranto. The English authorities,however, do not in my opinion support that contention. Repina v.
Mayor <>) Leeds 2 was cited. There, in an election of councillors for award in the borough, the presiding alderman, after the election, pub-lished, under statute, a declaration containing a list of councillorselected, including the name of one Potts. Thereafter, discovering analleged error in counting the legal votes, the alderman signed andpublished a second list omitting the name of Potts and substitutingthat of one Richardson. Richardson attended meetings of the coun-cil and acted in the office. In proceedings for a mandamus on behalf
1 U N. L. R. 97.
* 11 Ad. <k E. 512.
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Applicationfor Writ ofMandamus
of Potts it was held that the action of the returning officer wasvoid, and that the proceedings therefore could only be colourable,and that the proper remedy was by mandamus. Lord Denman C.J;had actualy suggested when the order nisi was obtained that counselhad better take a quo warranto, and added he was glad counsel hadnot taken his advice. This <?ase followed the decision of Bex v.Mayor of Oxford.1 There it was held that it had not been shownthat the disputed election was merely colourable and void; it couldnot then be said that the office was not de jure full of the councillorin possession. There the proper remedy therefore was by quowarranto.
As I have already pointed out, there is no question whatsoeveras to the bond fide action of the Government Agent, but that doesnot make the election not colourable, if in fact it is void. Theremarks of James L.J. in his judgment in Etherington v. Wilson 2should be read in this connection.
A second local authority relied upon for the respondents is In reJaffnq, Local Board Election. 3 It is a decision of three Judges, andof course binding upon me. It has given me some difficulty inview of the reference to it made by Hutchinson C.J. in Gomes v.Chairman of Municipal Council, Colombo.* He is reported to statein the course of his judgment—
Whether or not this Court has jurisdiction, in a case of thiskind where the office is full, to grant a mandamus for afresh election, on the ground that the one which had beenheld was improperly held or was void, there is on the onthand the authority of a decision of Wendt J. reported at9 N. L. R. 156, and on the other hand the decision ofthree Judges, including Wendt J., in, 1 Appeal Court Reports12S. My present opinion is, on the authority of the lastcase, that the Court has no jurisdiction to grant a manda-mus in such cases, but I will not go into that question atlength, because I think that this rule should be dischargedon the ground that the chairman’s decision is right.”
I'rom that reference, one, so it seemed to me, might reasonablyinfer that the Court of three .Judges held that this Court had no juris-diction to grant a mandamus in a case where the office is full, evenif it be held that the election was void. The learned Chief Justicewas himself one of the three Judges. I have read the decision inIn rc Jaffna Local Board Election (supra) with the greatest care,and I must admit- I can tind no such conclusion. The only pointdecided appears to be that- the Court had then no power (sincegiven it by statute), either inherent in it or expressly or impliedlygiven it by statute, to issue writs of quo warranto. The opinion of
1 6 Ad . <k K. 34U.*1 A. C.R. 128.
* 45 /,. J. Oh. 153.* 12 N. L. R. 8
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Wendt J. in In re Denister Perera 1 was oveiTuled, but there is noreference to his decision in the case reported at 9 N.. L. R. 156, inwhich he held the election to be void and directed that a writ ofmandamus do issue. I can find, therefore in the local decisionsnothing contrary to which I conceive the law to be as- laid down bythe English authorities to which I have referred.
ApftfioaUon/or iVrtl ofMandamus
I have therefore come to the conclusion here that the properremedy is by mandamus, the election already held, being void.The difficulty anticipated by Mr. Fonseka, prior to my order ofDecember 17, that the persons already de facto councillors andchairmaii be made parties to these proceedings, -no longer exists.
The application is therefore granted, with costs, and the writapplied for will issue.
Application for a Writ of Mandamus on the GOVERNMENT AGENT, NORTHERN PROVINCE