049-NLR-NLR-V-65-B.-L.-SEEMON-SINGHO-Petitioner-and-K.-M.-WICKREMASINGHE-Respondent.pdf
Seemon Singho v. Wiclcremasinghe
235
Present: T. S. Fernando, J.L. SEEMON SINGHO, Petitioner, and K. M.WICKHEMASINGHE, Respondent
S. G. 36 of 1960—In the matter of an Application for a Mandate in tnenature of a Writ of Quo Warranto
Urban Council — Disqualification for membership — Local Authorities Elections
Ordinance, No. 53 of 1946, s. 10 (1).
A person who is in the position of a sub-contractor in respect of a contraotentered into by another person with a local authority is not necessarily disquali-fied thereby by section 10 (1) of the Local Authorities Elections Ordinance fromsitting and voting as a member of that local authority.
A and B were two brothers. A entered into a contract with an Urban Councilto supply the petrol and lubricants required by the Council for its lorries. Theaddress set down by A in his tender form was admittedly the premises in whichB carried on the business of a Shell Petrol Service Station. It was also commonground that all the petrol and lubricants supplied by A upon the contract weremade available to the Council from a petrol service station of which B wasthe authorised dealer.
It was contended that the contract was (a) held or enjoyed by B himselfindirectly or (6) held by A on account of or for the use or benefit of B.
Held, that B was not disqualified by section 10 (1) of the Local AuthoritiesElections Ordinance from being elected as a member of the Urban Council.
236
T. S. H?EEaNTAlTDO» 1.—Btotnen Binyho v. Wichr&tnosinght
Application for a ■writ of quo warranto.
S. R. 8. R. Goomarasuxwiy, with M. B. Varmiiamby, for the petitioner.
B. W. Jayeum&ene, Q.O., with G. J). S. Siriwardene, for the respondeat.
Cur. adv. vult.
July 26, 1960. T. S. Febnastdo, J.—
This application canvasses the eligibility of the respondent, the Chair-man of the Kalutara Urban Council, to sit and vote as a member of thesaid Council. The ground upon which the qualification of the respondeathas been challenged is contained in Section 10 (1) of the Local AuthoritiesElections Ordinance, No. 53 of 1946, the relevant part of which 1 reproducebelow :—
t: No person shall, at any time, be qualified to be elected under thisOrdinance, or to sit or to vote, as a member of any local authority, ifsuch person at that time directly or indirectly, himself or by any otherperson whatsoever in trust for him or for his use or benefit or on his accountholds or enjoys, in the whole or in part, any contract or agreement orcommission made or entered into with or accepted from any personfor or on account of such authority
The facts relevant to the ground upon which the application is basedmay be set down as follows :—At an ordinary general meeting of theUrban Council of Kalutara held on 18th October 1958 presided over bythe respondent as Chairman, the Council decided, on the recommendationof what has been described as the Tender Committee, to accept a tenderby one S. M. Wickremasinghe to supply the petrol and lubricants requiredby the Council for its lorries. S. M. Wickremasinghe is the brother ofthe respondent, and the address set down by the tenderer in the tenderform was 762, Galle Road, Bambalapitiya, which is admittedly the pre-mises in which the respondent carries on the business of a Shell Petrolservice station. The period stipulated in the contract for the supplyof oil and lubricants covered the entirety of the year 1959. It is commonground that all the petrol and lubricants supplied by S. M. Wickrema-singhe during this period on the contract entered into by him with theCouncil consequent upon the acceptance of his tender were made availableto the Council from a petrol service station, situated at No. 799, MainStreet, Kalutara, of which station the respondent was at all materialtimes the authorised dealer. The respondent continued to hold theoffice of Chairman of the Council during the year 1959 and at an electionof members of the Council for the three-yea# period of 1960 to 1962 was,on the 28th of November 1959, again elected a member. It is this electionof the respondent in November 1959 that forms the subject of challengeon this application.
'•T. S. FEBNA3STD0, J.—Seemon Singho v. Wideremusmghe237
Upon, the facts above set out, it has been urged on behalf of the peti-tioner that the 1959 contract was (a) held or enjoyed by the respondenthimself indirectly or (b) held by S. M. Wickremasinghe on account of orfor'the use or benefit of the respondent. On the other hand, it has beensubmitted that there is no requirement that a person contracting tosupply oil and lubricants should himself be a dealer in such productsand that there is no reason why a successful tenderer should not obtainall supplies necessary to enable him to perform his obligations under thecontract from some other person. It is submitted that the obtainingby the successful tenderer of the necessary supplies from his brothercannot have the effect of conferring on the latter the character of a con-tractor with the Council. It is contended that, putting the case for thepetitioner at the highest, even if the respondent is considered to haveput himself in the position of a sub-contractor he does not thereby attractto himself the disqualification for membership of the Council contemplatedby the statute. Mr. Jayewardene, for the respondent, has invited myattention to the old case of Thompson v. Pearce 1 which related to anaction brought under an English statute (22 Geo. 3, c. 45) to recoverpenalties from a member of the House of Commons for sitting in theHouse whilst being disqualified. The relevant wording of the disquali-fying section (section 1) bears a close correspondence to the wording ofthe Ordinance we are concerned with in the present case and is asfollows :—
“ That any person who shall directly or indirectly himself, or byany person whatsoever in trust for him, or for his use or benefit, oron his account, undertake, execute, hold or enjoy, in the whole or in
part, any contract, agreement or commission shall be
incapable of being elected, or of sitting or voting as a member of theHouse of Commons, during the time that he shall execute, hold orenjoy any such contract, agreement or commission”
The facts upon which the case came to be decided were shortly that aGeneral Nichols, colonel of an infantry regiment, received an order fromGovernment to clothe his men. It was the duty of the colonel to clothehis men; the colonel received as part of his office an emolument forclothing his men; if the men deserted with their clothes the loss fell onthe colonel. The colonel by his agents placed an order with the defend-ant, a clothier, to furnish his regiment with army clothing. During thependency of the contract between the colonel and the defendant thedefendant was elected a Member of the House of Commons. Dallas
J. in deciding in favour of the defendant stated :— “ the defendantreceives nothing from government; he never looks to government forpayment of a farthing ; he looks only to General Nichols
1 (1819) 1 Brod & B 25 ; 129 Eng. Rep. 632.
238
T, S. FERiiAHDO, J.—«Seamen Singko v. Wisknutatinght
The clothier is paid, not by the government, but by the person whohas given him an order in his trade or business ; and this extraordinaryposition is made, that because these are articles which have applicationto the public service, the tradesman is disqualified as a contractor withgovernment. Let us see how far this argument would go. The armyclothier pays the tailor, the draper, the button-maker, and the lace-maker under him ; and they employ subordinate persons under them.Everything, which each of these parties furnishes, has an applicationto the service of the public ; and all of them according to this compre-hensive argument, would be considered as contractors with the public,and so be disqualified from sitting ov voting in parliament. I cannotthink that such was the intention of the Act; and am therefore of opinionthat it is impossible to consider the defendant’s case as falling withinthis statute.” Richardson J. in the same case observed that, if it couldbe considered that General Nichols was a contractor with governmentwithin the meaning of the Act, he would still think that the defendant,or a sub-contractor, was not liable to the penalties imposed by thestatute. tc The Act ”, to quote his own words, " can only extend tothose who come immediately in contact with government; if it wereotherwise, a large proportion of competent persons must, in time ofwar, be excluded from sitting in parliament.”
Mr. Jayewardene appeared to me to be equating the position of therespondent to that of a sub-contractor, and I am unable to say that onthe evidence in the case he was not right in so doing. It is not necessaryfor me to decide in this case whether a person who appears to fall intothe category of a sub-contractor is always entitled to be free of thedisqualification imposed by the Ordinance in question. One can conceiveof cases where the garment of a sub-contractor can be removed inoircumstances where his real character of the contractor may berevealed. But have we that spectacle here ? The burden of satisfyingthis Court that the respondent is disqualified by the statute is uponthe petitioner. The petitioner has succeeded in showing only thatthe respondent and the contractor are brothers, that the contractoruses the respondent’s business premises as an address for correspondenceand that all the supplies in. pursuance of the contract have been chan-nelled from the Btooks of the respondent. The case set up by thepetitioner raises at beet but a suspicion that the contract in questionwas held or enjoyed indirectly by the respondent himself or that it wasfor the use or benefit or on account of the respondent. In this situationthe duty of this Court is dear, and that is to discharge the rule withcosts. I must add that counsel before me were agreed that costs shouldbe fixed at a sum of Ra. 1,575, and they are accordingly so fixed.
Rule discharged,