DEEN v. RAJAKULENDRAM et al

003-NLR-NLR-V-40-DEEN-v.-RAJAKULENDRAM-et-al.pdf


Deen v. Rajakulendram.
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1938Present: Poyser S.P.J.
DEEN v. RAJAKULENDRAM et al.
In the Matter of an Application for a Writ of Quo warranto.
Writ of quo warranto-—Application in respect of appointment of Revenue andWorks Inspector of Urban District Council—Office not of a publiccharacter—Local Government Ordinance, No. 11 of 1920, s. 47‘—Rightof member to withdraw and refrain from voting.
An application for a writ of quo warranto will lie for usurpation of anoffice of a public nature and a substantive office and not merely thefunction or employment of a deputy or servant held at the will andpleasure of others. A writ will not lie in respect of an appointment ofa Revenue and Works Inspector made by an Urban District Councilunder section 47 of the Local Government Ordinance.
A member present at a meeting of the Urban District Council duringthe discussion of a resolution may withdraw when the voting takes place.
The Court has a discretion to refuse to grant a writ where there is aremedy equally appropriate and effective.
T
HIS was an application for a writ of quo warranto to have a resolutionpassed at a meeting of the Urban District Council, Nawalapitiya,
expunged and declared void, and a declaration that the addedrespondent was disqualified from acting as Revenue and Works Inspector.
H. V. Perera, K.C. (with him J. R. Jayawardana), for first and ninthrespondents (on a preliminary objection).—Does a writ of quo warrantolie to declare null and void a resolution passed at an Urban DistrictCouncil meeting ? In the first place, the office must be of a public naturecreated by Charter or by Crown with the consent of the Legislature, viz.,by Statute. {Short on Mandamus, ch. JII.).
The Urban Council selected a candidate for the post of RevenueInspector by the casting vote of the Chairman. Such a post is createdneither by Charter nor by Statute.
[Poyser J.—The holder of such a post is removable at the pleasure ofthe Council.!
Under section 47 of Ordinance No. 11 of 1920, an Urban Councilpossesses large powers to appoint all its necessary officers, to remove anysuch officers so appointed to fix their salaries, &c., subject to certainrestrictions. Assuming such a writ is granted, then it must necessarilybe available even against a cooly working under an Urban DistrictCouncil. No doubt such officers and servants are not holding publicoffices.
A quo warranto cannot lie on a contract by a mere employee of such an-institution.
, The appointment is not a permanent one and can be terminated by thebody responsible for its appointment and therefore no quo warranto isavailable. (R. v. Fox1; Ex parte Richards*.)
1 8 E. B. 939.
= L. R. Q. 3, O. B. D. 368.
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Deen v. RajaJculendram.
The writ is limited or restricted, and therefore cannot be applieduniversally. Such a writ lies for usurping any office of a public nature.It must be a substantive office and not one which is held at the will andpleasure of others. (Darley v. The Queen'.)
The allegation must be actually against the person possessing thatoffice. (Ukku Banda v. Government Agent, Southern Province ’.) Whatis the test to be applied for a writ of quo warranto ? Has there been ausurpation of an office of a public nature and an office substantive incharacter, viz., an office independent in title. (R. v. Speyer; R. v.Cassel *.)
[Poyser J.—Should all members present at a meeting exercise theirvotes ?]
A member may withdraw at any time before a decision is taken andreturn after the voting is over. That does not mean such a memberparticipated in the decision of a particular matter.
C. V. Ranawake (with him M. M. 1. Kariapper), for petitioner. Wherea breach of statutory duty or violation of statutory procedure is allegedthe remedy by way-of quo warranto lies to test it.
Here there has been a resolution which clearly violates the procedure laiddown under section 23 of the Local Government Ordinance. The partyresponsible for the resolution is the Council who are made respondents.Any member of the Council dissociating himself from the resolution isentitled to say so and admit its irregularity. A declaration by Court thatthe resolution is bad must necessarily affect the officer appointed; hencehe is also made a respondent. Even if he is not a proper party to theapplication the Court can decide it as against the Council. If the appli-cation is against the officer it is still possible for the Council to be made a•party.
See R. v. Speyer and Cassel*, where the Home Secretary responsible- for the appointment in question was noticed and represented. (Regina v.Burrows".) Cf. Wijeratne v. Obeysekere", Jayewardene v. R. M. of Katu-gampolaAlbert de Silva v. Mudaliyar Wijetunge
Though a Revenue and Works Inspector is not a direct creature of thestatute, still where the Council is empowered (vide section 47) to appointthe officers necessary for the purposes of the Ordinance, an officer soappointed becomes a creature of the statute. The office in questionemanates from the Crown, not immediately, but through the Council actingunder its powers. “ What is done by the donee of a power is supposedto be done by the donor”—Lord Campbell C.J.' in The Queen v. TheGuardians of St. Martins’. >
The older cases are no authority for the contention against the proprietyof the writ, being allowed. The test is whether the office is of a publicnature and substantive in character, not whether it is held at pleasure.See Wood Renton, Encyclopaedia of the Laws of England, vol. XII, p. 186.
(1846) 12 C. L. d F. R. 520. at 537..(1802) 1 K. B. 399.
29 N. L. R. 168.. • (1928) 30 N. L. R. 158.
(1916) 1 K. B. D. 505. at 009.7 (1930) 32 N. L. R. 148.
* (1916) 1 K. B. 595.* (1830) 32 N. L. R. 159.
« 0851) 17 Q. B. 149, al 155.
Deere v. Rajakulendram.
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Obviously the writ does not lie against a cooly, for instance, employed bythe Council. The Ordinance in fact draws a distinction between “ officers ”and “ servants
The true test is referred to by Earle J. in The Queen v. The Guardians ofSt. Martins (supra) at p. 163.
On this point Counsel also relied on Darley v. ReginaR. v. Speyerand Cassel (supra).
In Reg. v. Burrows (supra) the history of the remedy is set out. Itis difficult to see what other remedy there is in a matter of this kind.Cf. Everett v. Griffiths10 Halsbury (Hailsham ed.) 811.
Even if there is such other remedy the jurisdiction of this Court is nottaken away. (Q. v. Hampton “.)
[Poyser J.—The remedy lies in the Council itself, viz.; to rescind theearlier resolution and select another officer.
This no doubt is possible, but there is nothing to compel them to do so,especially where there was a majority party responsible for the appoint-ment and will not rescind a resolution by which a favourite was appointed.
The resolution itself is clearly ultra vires under section 23; it was notcarried by a majority of those present. The occasion for a casting votedid not arise where nine members were present and four voted for and fouragainst, the ninth member not voting; the resolution fell. There is a cleardifference between a “ majority of those present ” and a “ majority ofthose present and voting ”. The English Local Government Act of 1933provides that a resolution to be valid must be carried by a majority ofthose present and voting. A similar provision exists under our MunicipalCouncils Ordinance, No. 6 of 1935, section 7. A member may of coursewithdraw before a decision is taken, but here the member who did notvote was actually present. The English cases have definitely decided thispoint.
Counsel cited Q. v. Griffiths *; Reg. v. Overseers of Christ Church *; In rethe Rate-payers of Eynsham Parish Laboucher v. Wharncliffe ’.
Schokman, C.C., for the Attorney-General, on notice.—An officef orservant appointed by an Urban District Council under section 47 ofOrdinance No. 11 of 1920 cannot be said to hold, an office of a public andsubstantive nature. He would be in the position of a deputy or servantof the Urban District Council. In regard to such an appointment it hasbeen held that an information in the nature of quo warranto would notlie—uide the cases referred to in note (f) on page 806 of 9 Halsbury (Hail-sham ed.).
C. Ranganathan, for second, third, fourth, fifth and eighth respondents.
G. P. J. Kurukulasooriya, for seventh respondent.
Gilbert Perera, for sixth respondent.
Cur. adv. vult.
merit at 528.)
{1924) 1 K. B. 441.
(1865) 6 B. A S. 929, at 932.
* (1846) 12 C. L A P. R. 520 (see argu-
* (1857) 17 Q. B. 1C4.
3 (1857) 7 E. J B. 409.
» (1349) 18 L. J.. Q B. 210.i (1879) 13 Ch. O. at 354.
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POYSER S.P.J.—Deen v. Raiakulendram.
September 27, 1938. Poyser S.P.J.—
This is an application for a writ of quo warranto to have a resolutionpassed at a meeting of the Urban District Council, Nawalapitiya, held onApril 11, 1938, expunged and declared null and void, and a declarationthat the added respondent is disqualified from acting as the Revenue andWorks Inspector of th4 said Council.
The petitioner, Mr. A. B. Deen, is a duly elected member of the UrbanDistrict Council of Nawalapitiya. He states that at a special meetingof the Council held on April 11, 1938, all the members, namely, nine innumber, were present, and that the Council had met to decide on theappointment of a person to perform the duties of Revenue and WorksInspector. The previous holder of this post had retired on December 31.1937.
Various candidates were considered by the Council and eventually theadded respondent, A. J. Setunga, was declared to be appointed to the post.The voting was four members' in favour of Mr. Setunga and four membersin favour of another candidate, Mr. Weerasinghe'. Mr. Jansz, who is anex-officio member of the Council, by virtue of his position as DistrictEngineer, did not vote, the.entry in the minutes being “ Mr. P. D. Jansz.D. E. was neutral ”. .As there was an equality of votes, the Chairman, inaccordance with the provisions of section 23 of the Local GovernmentOrdinance, No. 11 of 1920, in addition to giving his own vote, gave thecasting vote in favour of Mr. Setunga.
Mr. H. V. Perera, who appeared for the first and ninth respondents,has raised certain preliminary objections to this application, viz., thatthe writ will not lie as the person who has been appointed Revenue anfdWorks Inspector does not hold an office of a public nature and is not anofficer appointed by the Crown or under any Statute. He also arguedthat there was no material before the Court to prove that the addedrespondent was actually acting in such appointment, and further arguedthat in any event the first to the eighth respondents were improperlymade parties to the proceedings as it was not alleged that they hadusurped any office.
In regard to the material set out in the petition and the alleged irregu-larity of the appointment of Mr. Setunga, he was not called upon toargue as I considered that these preliminary points should first bedisposed of.
The writ of quo warranto will only lie “ for usurping any office, whethercreated by Charter alone, or by the Crown, with the consent of Parliament,provided the office is of a public nature, and a substantive office, not merelythe function or employment of a deputy or servant held at the will and' pleasure of others ”.
The above is an extract from an opinion delivered by Tindal C.J., inthe House of Lords, in the case of Darley v. The Queenwhich was quotedwith. approval by Lord Reading in the case of Rex v. Speyer and Rea; v.CasselLord Reading, further in the course of his judgment, laid downthat “ the test to be applied is whether there has been usurpation of anoffice of a public nature and an office substantive in character, that is.
an office independent in title ”.
1 (12 C. /,. d F. ft. 537).
-• (1010) 1 K. B. D. 595.
POYSER S.P.J.—Deen v. Rajakulendram.
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In this matter the Council were acting under the powers conferred onthem by section 47 of the Local Government Ordinance, No. 11 of 1920.The material part of that section is as follows : —“ For the purpose of thedischarge of its duties under this Ordinance, a District Council (withoutprejudice to any other powers specially conferred upon it) shall have thefollowing powers :—f
“ (a) To appoint all necessary officers and servants, and from time totime to remove any such officer or servant, and to assign to any officeor service such salary, allowance, or remuneration as to the Councilmay seem fit. Provided that in any case in which any such salary,allowance, remuneration, either separately or in the aggregate, shallexceed in value the rate of one hundred rupees per month, the approvalof such assignment by the Local Government Board shall have beenpreviously obtained ”.
It will be seen that the Council are given powers, subject to certainrestrictions, to appoint officers and servants from time to time and toremove such officers and servants. It certainly does not appear that anyappointment made under that section is an appointment of a permanentnature, for it is an appointment which can be determined at any time bythe body responsible for the original appointment, and there is ampleauthority that the writ of quo warranto will not lie in respect of suchappointments. (R. v. Fox'; Ex parte Richards'.)
Therefore, I think that the first preliminary objection taken byMr. Perera must succeed and that the issue of this writ cannot be allowed.It is unnecessary to consider the further point raised in regard to whetherMr. Setunga had in fact taken up the position to which-he had beenappointed. There was an affidavit filed to the effect that he had, butsuch affidavit is only dated to-day and was apparently only served on thefirst respondent’s Proctor this morning. Mr. Perera therefore had noopportunity of meeting the allegations that were made in that affidavit.However, as the material that is contained therein has not affected mydecision, it is unnecessary to consider it.
Mr. Schokman, who appeared for the Attorney-General, also supportedMr. Perera’s argument that this writ would not lie in regard to officersand servants appointed by an Urban or District Council under theprovisions of section 47 of the Local Government Ordinance.
Mr. Ranawake, who supported this application, has raised a number ofpoints. Apart from his arguments in regard to the preliminary objections,he has also in support of the petition argued that having regard to theprovisions of section 23 of the Ordinance, the appointment of Mr. Setungawas invalid as Mr. Jansz abstained from voting. That section is asfollows: —
“ All acts whatsoever authorized or required by virtue of this or anyother Ordinance to be done by any Council may and shall be decidedupon and done by the majority of members present at any duly con-vened meeting thereof, such members being not less than the quorumprescribed by any by-law to be made by the Council as hereinafterprovided, or in the absence of such by-law, not being less than two-v 8 E. .( B. 939..2 L. R. 3 Q. B. D. 368.
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POYSER S.PJ.—Deen v. Rajakulendram.
thirds of the members of the Council. Provided that when the votesof the members present in regard to any question shall be equallydivided, the presiding officer shall, besides his vote as a member, havea casting vote
In regard to the provisions contained in that section that the memberspresent at any duly convened meeting should vote on any matter comingbefore such meeting, he has referred to certain English cases in whichmembers of a Council or a body were present at a meeting and did notvote. In the case of Reg v. Friffiths the Chairman of a meeting heldfor the election of an officer did not vote although he continued to preside•over the meeting. It was held that as he had not withdrawn from themeeting, that the election was void.
In the case of Labouchere v. Earl of Whamcliffe it was held that if at ageneral meeting of a club certain members did not vote on a resolutionfor the expulsion of a member and did not withdraw from the meeting,that their presence must be taken into account in the consideration of•whether two-thirds of the members present voted for such expulsion.
Mr. Ranawake invited me to express an opinion as to whether a resolu-tion passed at a meeting of any Municipal Council at which one or moremembers although present did not vote was in fact invalid. Actuallywhat happened in this particular case was that Mr. Jansz, the DistrictEngineer, preferred not .to vote although it is not clear whether he with-drew from the Council Chamber or not. I can see nothing in either theOrdinance or the by-law or in any of the cases that have been cited toindicate that any member of the Council who is present at any meetingmay not withdraw from such meeting at any time he desires.
In my opinion he can so withdraw although he may have been presentat the discussion on a resolution he is not bound to vote if he withdrawsbefore the voting takes place.
There is a further matter. It has been suggested in the course of theargument that the proceedings in regard to the appointment.of Mr. Setungawere not only irregular but were in fact corrupt and that impropermotives have actuated the Chairman and presumably those memberswho supported the appointment of Mr. Setunga. These allegations arenot supported by the facts and I am unable to find any evidence of anyirregularity. or of any injustice. It is true that the ‘ District' Engineer,according to the minutes, appeared tp consider Mr. Weerasinghe a moresuitable candidate than Mr. Setunga. He did not actually use thosewords but he stated that if T. P. Hunt was omitted—this candidatewithdrew—he would place Weerasinghe first and Setunga second. Onthe other hand, according to the affidavit that was filed this morning, theperson appointed to this post would, not only have to perform duties inconnection with public works but would also be largely responsible forthe collection of municipal revenue. Presumably the District Engineerwas best qualified to express an opinion in regard to a candidate’s quali-fications as Works Inspector, but he would not necessarily be best qualifiedto express^m opinion in regard to a candidate’s, qualifications in regardto the collection of revenue. The fact that he recommended the appoint-ment of Mr. Weerasinghe in preference to Mr. Setunga is not therefore any' 17 Q. B. 164.1 13 Ch. D. p. 346.
MAARTENSZ J.—De Fonseka v. Chartered Bank of India, Australia a China. 31
evidence of any improper or irregular conduct on the part of those whosupported Mr. Setunga. The Chairman certainly did propose thatMr. Setunga be appointed and he also gave the casting vote in his favour,but then the law permits him to do so.
I mention these matters although I am of opinion that the writ ofquo warranto will not lie, yet assuming it' did, the Court always has adiscretion according to the facts and circumstances of the case whetherit will grant its issue. The Court has refused to grant such writ where itsissue will be futile and .where there is a remedy equally appropriate andeffective—see Halsbury, vol. 9, p. 810, and the cases therein cited. In thiscase there is a remedy, assuming there was anything irregular inthe appointment of Mr. Setunga. In the first place it was stated in thecourse of the argument that he is at present only on probation and whetherhe is so or not the Council have powers under section 47 to terminate hisappointment at any time. It is not a case such as is visualized by LordHeading in the case of Rex v. Speyer, and Rex v. Cassel (supra)“where to refuse the issue of the writ might be to perpetuate anillegality. ”
For the above reasons the application must be refused. The petitionerand the sixth and seventh respondents who supported the application willpay the costs of all the other respondents.
Application refused.