V.SIRIWARDENA, ELECTION OFFICER AND OTHERS
KULATUNGA, J. ANDWADUGODAPITIYA, J.
S C. APPEAL NO. 81/95C.A. APPLICATION NO. 826/94OCTOBER 5, 1995.
Writ of Certiorari – Member of Local Authority – Vacation of office on expulsionfrom membership of recognized political party – Notice by Election Officerdeclaring vacancy – Local Authorities Elections Ordinance, Sections 10A and65A (2).
The appellant was a member of the Colombo Muncipal Council. After calling forhis explanation, the recognized Political Party to which he belonged expelled himfrom the membership of the Party by writing. A copy of the Communicationaddressed to the appellant was sent to the Election Officer who gazetted therequisite notice of vacancy in the membership of the Council, in terms of Section10A (1) (a) of the Local Authorities Election Ordinance, Consequently, therecognized political Party nominated a new member in terms of Section 65A(2) ofthe Ordinance.
There was no duty on the Election Olficer to hold an inquiry before hepublished the vacancy in the Gazette.
The failure to make the new member a party to the application is fatal to thevalidity of the application.
APPEAL from the judgment of the Court of Appeal."
A. P. Niles with U. A. Mawjooth for appellant.
S. Sri Skandarajah. S.S.C. for 1st respondent.
M.I. Waffir for 2nd respondent.
N.R. G. Samarsinghe for 4th respondent.
Cur. adv. vult.
October 05, 1995KULATUNGA, J.,
This is an appeal from the judgment of the Court of Appeal dated
By that judgment, the Court of Appeal dismissed theapplication made by the appellant who had been a member of theMuncipal Council, Colombo to quash a notice published by the 1strespondent (Election Officer for the Colombo, Muncipal Council)declaring that a vacancy had arisen in the membership of theCouncil by reason of the cessation of the membership of theappellant in the Sri Lanka Muslim Congress (a recognized politicalparty) to which he belonged.
Briefly, the facts are that on 13.07.94 the 2nd respondent who isthe General Secretary of the Sri Lanka Muslim Congress, addresseda letter to the appellant calling upon him to show cause why heshould not be expelled from the membership of the Party on thegrounds set out in that letter which has been produced marked R1. Itwould appear that R1 was sent under registered cover to theappellant's address and has been returned undelivered with theremark “refused to accept". It was dispatched again by registeredpost on which occasion also, the letter was returned undelivered withthe same remark. The relevant envelopes have been producedmarked R2 and R3. Besides, there was a further effort by theSecretary to the Party on 28.08.94 to have a copy of the letter R1communicated to the appellant. On that occasion, it has been forwarded to the appellant through the Colombo Muncipal Council.The covering letter of the Secretary of Council is marked R4.However, the appellant takes up the position that the fact of the saidcommunication has not been proved by admissible evidence.
In the end, by his letter dated 14.09.94 – A2 signed by the 2ndrespondent on behalf of the Party the appellant was informed that inview of his conduct and failure to respond to the charge sheet, hehas been expelled from the membership of the Party. Thiscommunication (A2) was copied to the Election Officer – the 1strespondent whereupon the 1st respondent by his letter dated20.10.94 addressed in terms of Section 10A(2) of the LocalAuthorities Elections Ordinance informed the appellant that upon theexpiry of 21 days specified in that section, he would take steps topublish in the Gazette a notice declaring that a vacancy had arisen inthe membership of the Council. The said letter has been producedmarked 1R1. Next on 14.11.94 the 1st respondent made the requisitenotice under Section 10A(1) (a) of the Ordinance – (1R2). It was thengazetted in the Gazette No. 8456 dated 15.11.94 – (1R3). At thesame time, further action was taken by the 1st respondent by hisletter dated 16.11.94 (R5) to call upon the 2nd respondent tonominate a member in place of the appellant. On 16.11.94, the 2ndrespondent nominated one T. K. Azoor as the new member, in termsof Section 65A(2) of the Ordinance. The 2nd respondent by his letterdated 16.11.94 (R6) forwarded to the 1st respondent the nominationtogether with the requisite oaths under Article 157A and Article 165 ofthe Constitution, signed by the new member.
The submission of the appellant is that in the circumstance of thiscase, the 1st respondent had no power under Section 10A( 1) (a) ofthe Ordinance to have published the notice declaring that a vacancyin the membership of the Muncipal Council had arisen without firstholding an inquiry as to whether the appellant had been validlyremoved. The question of the validity of the appellant’s expulsion ispresently before the District Court of Colombo, in D.C. Colombo caseNo. 4170/Spl, which the appellant has filed, challenging his removalfrom the membership of the Party.
We are of the opinion that whilst there may be circumstances e.g.where it is alleged that the letter of expulsion is a forgery or that itwas fraudulently procured in which event the Election Officer maycome under a duty to make a decision regarding such allegation, inthe circumstances of the case before us, there was no duty on thepart of the 1st respondent to have acted otherwise than as he hasdone namely, to publish the vacancy in the Gazette.
There is another point, although it had not been previously raisednamely, that T.K. Azoor who had been nominated by the Party as itsnew Member of the Muncipal Council and whose rights are affectedin these proceedings, had at no stage been made a party to theapplication made to the Court of Appeal. This itself is fatal to thevalidity of the application.
For the foregoing reasons, we see no reasons to interfere with thejudgment of the Court of Appeal. We accordingly dismiss the appealand affirm the judgment of the Court of Appeal, but without costs.
AMERASINGHE, J. – I agree
WADUGODAPITIYA, J. -1 agreeAppeal dismissed.