132-NLR-NLR-V-42-DE-SILVA-v.-DE-SILVA.pdf
de Silva v. de Silva.
S31
1941Present: Wijeyewardene J. >-
DE SILVA v. DE SILVA.In re Application For a Writ of Quo Warranto.
Urban Council—Resignation of Chairman—Letter withdrawing resignation—Election of new Chairman—Proper quorum—Urban Councils Ordinance,No. 61 of 1939, ss. 255 11) Id) and 248—Courts Ordinance, s. 42.
Where the Chairman of an Urban Council wrote to the Secretarystating : “ I have the honour to inform you that I shall resign from theoffice of the Chairman, Urban Council, as from February 1, 1941, and torequest you to take the necessary steps for the election of a successor asearly as possible ”,—
Held, that the communication announced the resignation of the Chair-man as from February 1, 1941, and that the office of Chairman becamevacant on that day.
It was not open to the Chairman to withdraw the resignation even withthe consent of the Council.
Held, further, that by the joint operation of sections 255 (1) Id) and 248of Ordinance No. 61 of 1939 a by-law made under Ordinance No. 11 of1920 fixing the quorum of an Urban District Council applies to an UrbanCouncil constituted under Ordinance No. 61 of 1939.
T
HIS was an application for a writ of quo warranto .to question theelection of the respondent as Chairman of the Urban Council,
Ambalangoda.
E. B. Wikremanayake (N. E. Weerasooria, K.C., with, him and BarrKumarakulasingham), for respondent, raised the preliminary objectionthat the writ of quo warranto did not lie.—Jurisdiction on the SupremeCourt to issue mandates is conferred by section 42 of the Courts Ordinance.The Supreme Court can only exercise its jurisdiction within the limitsprescribed by that statute—In the matter of the Election of a Member forthe Local Board of Jaffna A writ of quo warranto can only be issued topersons enumerated in section 42. The words “ other person ” must beread eiusdem generis, and mean a person under a duty to act judicially—Application for a writ of Prohibition to the Members of a Field GeneralCourt Martial'; Dankotuwa Estates Co., Ltd. v. The Tea Controller The Chairman of an Urban Council is not a judicial officer.
H. V. Per era, K.C. (with him M. C. Abeyewardene and D. W. Fernando),for applicant.—Quo warranto lies in respect of an office of a publiccharacter even where no judicial functions are exercised. The writ lieson an usurpation of an office made by the Crown by charter or by statute.The word “ person ” must be interpreted with reference to the writ askedfor. The only genus is that of persons exercising “ public functions ”.
H. H. Basnayake, C.C., for A.-G. (on notice).—If the intention of theLegislature was not to narrow down the scope of these writs the eiusdemgeneris rule need not be applied (Clapham v. Oliver ‘).
1 11907) 1 A. C.R. 128.
* (1915) 18 N. L. R. 334.
3 (1941) 42 N. L. R. 197 at p. 207.* (1874) 30 L. T. R. 365.
532
de Silva v. de Silva.
E. B. Wikremanayake, in reply.—The Supreme Court has no inherentpowers. The eiusdem generis rule must be applied to both the words“ tribunal ” and “ person ” or to neither.
The Court next heard Counsel on the merits of the application.
H. V. Perera, K.C.—There must be such a resignation as renders theoffice vacant.
[Wijeyewardene J.—To whom must resignation be given ?]
To the members. It is a bilateral act. A communication to the bodyis necessary or to the person authorised to act for the body, namely, theVice-Chairman or Secretary. The only consequences contemplated bythe Ordinance is the falling vacant of the seat. “ I shall resign on acertain day ” is not an immediate resignation. Till legal consequencescome into operation the act of resignation is not effective. The onlyresignation contemplated by the Ordinance is an immediate resignation.Where a person declares an intention to resign on a certain day and doesnot revoke it there is an immediate resignation. An effective resignationmust give rise to legal consequences. Till-then it is not a legal act. Thedeclaration is of no legal effect till the day and could be withdrawn beforethat day. The Queen v. The Mayor and Town Council of Wigan Whereno legal consequences follow resignation may be withdrawn. In reApplication for a writ of Quo Warranto ’. Acceptance is necessary unlessthe statute dispenses with it. On the question of quorum, section 39 ofthe Ordinance states that in the absence of any by-law made under theOrdinance the quorum shall be not less than two-thirds of the members.The Council consists of twelve members, so that the quorum would beeight. At the election of the respondent only six members were present.
N. E. Weerasooria, K.C., for respondent.—Assuming the Chairman has aright to resign, then, if he does resign, section 33 (5) comes into operation.A Chairman is a person who holds office as a result of an election. Thereis no contractual relation. With regard to resignation there is no provi-sion except the act of resigning. There is no provision even for a writing.The letter is not an intimation to resign. It was a definite resignation,nothing more was necessary. Reichel v. Bishop of Oxford ’; Cooper v.Wilson'. The mere fact that a date is given is not a condition. Resig-nation is complete at the moment it is sent and takes effect on the datementioned. The letter was treated by all parties as a “ resignation ”and not an intimation to resign. A formal declaration is sufficient.That was done. He cannot then revoke it. The legal consequence isthat the office is automatically vacant, that is, from February 1. Theresignation was absolute as a resignation—see Lord Lindley’s judgmentin the Bishop of Oxford’s case (supra). As regards quorum, section 248makes by-laws in force at passing of the Ordinance equivalent to by-lawspassed under the Ordinance. These by-laws govern all meetings. Theby-laws made under sections 164 and 168 (1) of the Local GovernmentOrdinance, No. 11 of 1920, fixed the quorum at five. Six members werepresent at the election. The election is therefore valid.
H. H. Basnayake, C.C.—Resignation operates on communication.Here the letter of resignation was communicated to the Secretary and
1 (1885) 14 Q. B. D. 908.* (1887) 56 L. T. R. 539 at p. 550.
* (1933) '12 C. L. Rec. 208.* (1937) 2 All. B. R. 726.
WUEYEWARDENE J.—de Silva v. de Silva.
533
later to the Council. The resignation was absolute though the vacancywas from February 1. The resignation was a proper resignation and theapplicant was not entitled in law to withdraw—Glossop v. Glossopx; Finchv. Odke ’; Pease v. Lowden *. On the question of quorum, theby-laws made under the Local Government Ordinance of 1920 are deemedto be made under the Ordinance of 1939—section 248 of Ordinance No. 61of 1939. If these by-laws are applicable the quorum is five.
H. V. Perera, K.C., in reply.—'The Ordinance contemplates not a noticeof resignation but a resignation. The form may be anything appropriate.Where acceptance is not provided for, one who says he will resign ata future day is not bound to do so. This is not a conditionalresignation.
August 5, 1941. WlJEYEWARDENE J.
This is an application for a mandate in the nature of a writ of quowarranto with a view to vacate the election of the respondent, Mr. NewtonH. de Silva, as Chairman of the Urban Council of Ambalangoda. Therespondent was elected Chairman of the Urban Council at a meetingconvened by the Government Agent, Southern Province, and held onMay 17,1941. It is sought to have his election declared void on the followinggrounds: —
That the office of Chairman had not fallen vacant at the time of the
election.
That the members present at the meeting on May 17, 1941, were
less than the quorum prescribed by the Urban Councils Ordinance,
No. 61 of 1939.
It is admitted that the Urban Council as constituted under theOrdinance elected on January 6, 1941, Mr. T. P. C. Fernando as Chairmanat a meeting duly convened under section 33. On January 22, 1941,Mr. Fernando addressed the following letter to the Secretary of theCouncil : —
“ I have the honour to inform you that I shall resign from the officeof the Chairman, Urban Council, as from February 1, 1941, and to requestyou to take the necessary steps for the election of a successor as early aspossible. ”
>The Vice-Chairman made an endorsement on that letter that he wouldtry to persuade the Chairman to withdraw the resignation and directedthe Secretary to call a meeting to consider the letter. A special meetingof the Council was held accordingly on January 30, 1941. All the membersexcept Mr. Fernando were present. This meeting considered a resolutionby the Vice-Chairman that Mr. Fernando “ be requested to re-considerand withdraw his resignation ”. That' resolution was carried by thecasting vote of the Vice-Chairman who presided at the meeting in theabsence of Mr. Fernando. In pursuance of that resolution a letter wassent by the Vice-Chairman on January 30 asking Mr. Fernando “ to begood enough to consider and withdraw the resignation. ” The followingday, Mr. Fernando wrote to the Vice-Chairman in reply, “ I am willing toaccede to the request of the Council and withdraw my resignation ”.
» (1907) 2 Ch. 370.« (1896) 1 Ch. 409.3
(1899) 1 Q. B. 386.
534
WIJEYEWARDENE J.—de Silva v. de Silva.
Acting on a letter written to him by the Commissioner of Local Govern-ment on May, 3, 1941, the Secretary of the Urban Council informed theGovernment Agent of the Province on May 6, that the office of Chairman“ should be regarded as now vacant ” and requested him to take actionunder section 33 (5) of the Ordinance to fill the vacancy. It was, as aresult of this letter, that the Government Agent convened the meeting ofMay 17, at which the respondent was elected Chairman. The materialbefore me does not throw any light on the circumstances which ledultimately to the Commissioner of Local Government ordering theSecretary to take action, but it is not necessary for me to consider thatmatter for the purpose of dealing with this application.
On these facts, it is contended by the Counsel for the petitioner thatMr. Fernando did not at any time resign from the office of Chairman andthat Mr. Fernando’s letter of January 22 should not be regarded as anythingmore than a notice communicating his intention to resign at the end ofthat month. It was argued that there was no completed and effectiveresignation by Mr. Fernando and that it was open to him to withdraw theso-called letter of resignation at any time before January 31.
It is clear that under the Ordinance it is not necessary for a resignationto be accepted by the Council, in order to make it effective. If Mr. Fer-nando resigned in fact on January 22, 1941, and communicated that factto the Secretary, it was not open to him to withdraw that “ resignation ”even with the consent of the Council. The question that has to be decidedis,whether the letter of January 22, 1941, could be regarded as referringto such a resignation. The question is not free from difficulty inview of the fact that the provisions of the Ordinance dealing with theresignation of a Chairman are somewhat scanty and vague. Section 34lays down that the Chairman “ shall, unless he earlier resigns or…., hold office until, the date on which his term of office as a member
of the Council is due to expire ” . . . . and section 33 (5)enacts that “ whenever the office of Chairman of an Urban Council falls
a
vacant ” the Secretary shall inform the Government Agent in writing.
Now Mr. Fernando’s letter states clearly what he meant. Heconsidered that the office of Chairman would fall vacant on February 1,1941, and he asked the Secretary to take necessary action to have thevacancy filled with as little delay as possible. There was no mistake orinadvertence so far as he was concerned with regard to the letter. Therewas no doubt in his mind that there would be a vacancy on February 1.He withdrew the letter 9 days after sending it and that too at the urgentrequest of the Urban Council to reconsider the matter and “ withdrew hisresignation”. Could it be said, that because he stated in his letter thathe would resign as from February 1, there was in fact no resignation ascontemplated by the Ordinance ? Reading the letter as a whole I havecome to the conclusion that Mr. Fernando mentioned February 1 merelyto indicate the date when the office would fall vacant. The fixing of aterm at which an act such as a resignation is to take effect does not makeit any the less absolute though it defers the operation of the act. I holdtherefore that Mr. Fernando’s withdrawal was ineffective and that the officeof Chairman was vacant on May 17, 1941, when the meeting for the electionof the respondent was held.
Zoysa v. Nanniyaran Aiyar.
535
The second point is based on the provisions of section 39 of the Ordi-nance which states that in the absence of any by-law made under theOrdinance the quorum for any meeting “ shall be not less than two-thirdsof the members of the Council in office on the day of such meeting Itis admitted that no by-law has been made under the Ordinance prescribingthe necessary quorum. There were only six members present at themeeting of May 17, and this would be less than the two-thirds requiredby the section.
There was however a by-law made under sections 164 and 168 (1) of theLocal Government Ordinance, No. 11 of 1920, which fixed the quorumat five. That by-law was in force at the time that the powers and dutiesof the dissolved Urban District Council, Ambalangoda, were transferredto the Urban Council, Ambalangoda, under Ordinance No. 16 of 1939.Now the joint effect of sections 255 (1) (d) and 248 is to make the by-lawin question “ continue in force as if it had been made with relation to orin the exercise of the powers of the Urban Council under the Ordinance ”.
I hold therefore that the necessary quorum for the meeting convened onMay 17 was five and that as there were six members present at the meet-ing the second point raised by the appellant must fail.
It was argued on behalf of the respondent that in any event the Courthas no power to issue a mandate in the nature of a quo warranto againstthe respondent as he was not one of the persons mentioned in section 42 ofthe Courts Ordinance. This argument was based on certain dicta in somejudgments of this Court “ that the other person or tribunal mentioned inthe section referred to are intended to mean person or tribunal under aduty to act judicially ”. I am not prepared to. assent to such an interpre-tation of section 42 of the Courts Ordinance without further considerationand if it became necessary for the purpose of this application to considerthe argument of the respondent’s Counsel I would have referred the pointfor the decision of a bench of three Judges.
I disallow the application with costs.
Application disallowed.