Perera o. Ds Alins
1971 Present: H. N. 0. Fernando, C.J., and Samerawlckrame, J.
C. P. PERERA, Petitioner, and D. W. DE ALWIS (GovernmentAgent, Colombo), Respondent
S. C. 93/71—Application for a Writ of Mandamus
Excise—Local option poll—Required notices—Delayed publication of them in someplaces—Resulting invalidity of the poll—Mandamus.
Where a local option poll was hold alter puhlioation in due time at some onlyof the different places at which publication was required by Rule 8 of the relevantlocal option Rules of 1928, but the publication was late at the other piaoee—
Held, that the poll was not valid.
H. N. G. FERNANDO, C.J.—Perera v. Da Alwia
Application for a writ of mandamus.
Vernon Wijetunge, Q.C., with D. R. P. Qoonclilleke and GaminiDissanayake, for the petitioner.
N.Sinnetamby, Crown Counsel, with P. Tennekoon, Crown Counsel, forthe respondent.
E. R. S. R. Coomaraswamy, with GlanviUe Perera, for the. Memberof the Kotahcna West Ward of the Colombo Municipal Council.
August 11, 1971. H. N. G. Fernando, C.J.—
This is an application relating to a local option poll held on 25thJanuary, 1971, for the abolition of two toddy tavern licences. Rule 6of the relevant local option Rules, 1928, provides that:
“ At least 20 days’ notice of the poll shall be given by publication inone or more local newspapers by fixing copies of the notice at theKachcheri, the local Magistrate’s Court, and the Village Tribunal,if any, within the jurisdiction of which the area is situated, andat prominent places within the said area, and by beat of tom-tomor by such other method as the Government Agent shall direct.”
In the present case, the affidavit of the Government Agent shows thatnotices were published in some newspapers and in the Government Gazettemore than 20 days before the date of the poll. But in regard to therequirement for fixing copies of the notice at the Kachcheri and theMagistrate’s Court and other prominent places, and also in regard topublication by beat of tom-tom, there was no publication until about18th January, 1971 which was only a week before the date of the poll.In the case of Miller and Company v. Government Agent, Province ofUva', there was a complete failure to comply with the requirement ofRule 6 because there had been delay in the publication of all the requirednotices. We are unable, however, to distinguish the present case merelybecause some of the notices were published in-due time. There is nothingin Rule 6 to create any distinction between the different places at whichpublication is necessary. We must accordingly agree that the poll wasnot validly held.
In regard to the relief sought from this Court, learned Crown Counselhas argued that, because there is no duty imposed by law on a GovernmentAgent to issue licences under the Excise Ordinance, we should not inthe present case make an order declaring this poll to have been invalid.We do not feel disposed, however, to depart from the precedent in thecase already cited, where a declaration was granted in almost the veryterms which have been set out in the present prayer. *
* U928) 30 N. L. R. 6.
Antmppnn v. Hurray
Order will therefore be made declaring the local option poll held on25th January, 1971 to be null and void and that accordingly the licencesfor the two toddy .taverns in the Kotahena West Ward of the ColomboMunicipal Council have not been abolished.
The respondent will pay to the petitioner a sum of Rs. 252-50 as thecosts of these proceedings.
6amebawickbame, J.—I agree.
C. P. PERERA, Petitioner, and D. W. DE ALWIS (Government Agent, Colombo), Respon