Farook v. Siriwardena (Returning Officer) (Ismail, J)
There’s nothing in the above provisions to indicate that the Elections Officershould himself take steps to ascertain whether the member has been lawfullyremoved from the Party.
The Elections Officer has a ministerial duty to perform on receipt of the saidinformation.
There is no further duty cast on the Elections Officer other than to give Noticeunder S. 10(a) 2 and declare by publishing in the gazette that such person hasvacated his office.
APPLICATION for Writs of Certiorari and Prohibition.
A. P. Niles with U. A. Mowjooth for Petitioner.
S. Sri Skanda Rajah S.S.C. for 1st Respondent.
Jayantha Liyanage with Miss Dulani Tiskumara and V. Mihindukulasuriya for 2ndRespondent
May 11,1995.
The Sri Lanka Muslim Congress is deemed to be a recognizedpolitical party in terms of Section 27A (1) of the Local AuthoritiesElections Ordinance for the purpose of local elections. Thepetitioner's name was included in the nomination paper submitted bythe said party as a candidate for election as a member of theColombo Municipal Council at the local elections held in 1991.
Section 28(2) of the Local Authorities Elections Ordinanceprovides that any recognized political party may for the purpose ofelection as members of any local authority submit one nominationpaper setting out the names, in order of priority, of such number ofcandidates as is equivalent to the number of members including theMayor and Deputy Mayor to be elected for that local authorityincreased by one third of such number of members. The writtenconsent of each candidate to be nominated by a recognized politicalparty is required to be endorsed on the nomination paper. Thesecretary of a recognized political party has also to perform certain
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statutory duties prescribed in this section. He has also to sign thenomination paper and has to deliver it within the nomination period. Ifthere is any omission or clerical error in the nomination papersubmitted then it is he who has to make an application within thenomination period to correct such omission or error.
The petitioner was declared elected as a member of the ColomboMunicipal Council at the elections held in 1991 and continues to be amember of the said Council
The 2nd respondent who is the General Secretary of the partyinformed the petitioner by letter dated 14.9.94 (A2), with a copy to the1st respondent that he has been expelled from the party withimmediate effect. Upon receipt of this letter the 1st respondent who isthe elections officer of the District gave the petitioner notice byregistered letter dated 20.10.94 (XI) in terms of section 10(A) (2) ofthe Local Authorities Elections Ordinance that he would be takingsteps after the expiry of 21 days to publish a notice in the Gazettedeclaring that he has vacated his office as a member of the ColomboMunicipal Council.
The petitioner obtained an interim order on 15.11.94 in C.A.Application No. 785/94 restraining the 1st respondent from takingfurther steps as indicated in the said letter. However, the 1strespondent has explained in his affidavit that on 14.11.94 heprepared the notice under section 10A (1) (a) of the Local AuthoritiesElection Ordinance for publication in the Gazette to the effect that thepetitioner has vacated his office of member of the Colombo MunicipalCouncil as he has ceased to be a member of the Sri Lanka MuslimCongress party. The said notice was immediately sent for publicationand was published in the Gazette Extraordinary No. 845/6 dated15.11.94 (1R3).
The petitioner has sought a writ of certiorari to quash the decisionof the 1st respondent taken to remove him from the membership ofthe Colombo Municipal Council. He has stated that he has alsoinstituted an action bearing No. 4170/SPL in the District Court ofColombo against the 2nd respondent seeking a declaration that hispurported expulsion from the membership of the party is null and
Farook v. Siriwardena (Returning Officer) (Ismail, J.)
void and that he remains a member of the party. When the presentapplication was supported an interim order was issued restrainingthe respondents from implementing the decision or taking any furthersteps to remove the petitioner from the membership of the Counciluntil the determination of this application.
The position of the petitioner as explained by him in his letterdated 23.9.94 (A3) to the General Secretary of the party is that he didnot receive the letter of 13.7.94 referred to the letter of expulsion (A2).The letter of 13.7.94 was a letter sent by the General Secretary of theparty to the petitioner calling upon him to submit his explanation tothe charges contained therein. The petitioner has now stated that ifhe was given any opportunity he would have explained his position inrelation to the charges or that he would have tendered an apology tothe party.
The General Secretary of the party has stated in his affidavit thatthe politbureau of the Sri Lanka Muslim Congress decided at anemergency meeting held on 10.7.94 to call for an explanation fromthe petitioner for several acts of misconduct committed by him. It wasthereafter that the letter dated 13.7.94 was despatched to thepetitioner. A copy of the said letter by which an explanation wascalled for from the petitioner is annexed to the objections of the 2ndrespondent as R1 together with the registered article receipt as R1a.However this letter was returned undelivered with the remarks“refused to accept" written in Sinhalese on the envelope. A copy ofthe same letter was despatched again to the petitioner on 28.8.94and this letter too was returned undelivered with the remarks “refusedto accept”. The envelopes on which these remarks have been writtenhave been produced by the 2nd respondent marked as R2 and R3.The General Secretary has also made another attempt to have thesaid letter containing the charges delivered to the petitioner throughthe Secretary of the Municipal Council. It appears from the letterdated 28.8.94 (R4) that the Secretary of the Municipal Council hasforwarded the said letter received from the General Secretary to thepetitioner by registered post. The petitioner has not specificallydenied these averments in his counter affidavit but has merely statedthat he is unaware of them.
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The petitioner has communicated with the General Secretary of theparty only on 23.9.94 (A3) after he received the letter dated 14.9.94(A2) expelling him from the party.
Learned Counsel for the petitioner submitted that the purportedexpulsion of the petitioner from the membership of the political partyis mala fide, unreasonable and in breach of natural justice. Thepetitioner cannot and does not in these proceedings seek to have thelegality or otherwise of his expulsion from the party determined. Hecontended that a misrepresentation was made to the elections officerand that the 1st respondent was misled into taking steps to removethe petitioner from the membership of the party. The main submissionon the law was that the elections officer could not have under section10A of the Local Authorities Election Ordinance proceeded to actsolely on the letter of the secretary of the recognized political partywithout himself having made further inquiries and being reasonablysatisfied, adopting the test of a reasonable man, that the petitionerhas been expelled from the party.
Section 10A (3) of the Local Authorities Elections Ordinanceprovides that whenever any person whose name has been includedin the nomination paper of a recognized political party ceases to be amember of such party the secretary of that party should furnish suchinformation to the relevant o'ections officer.
Section 10A (1) and (2) provides for the vacation of office onceasing to be a member of a recognized political party. Its provisionsare as follows:
10A (1) "If the elections officer of the district in which a localauthority area is situated, is satisfied that any person whose namehas been included as a candidate for election as a member of thatlocal authority, in the nomination paper of a recognized political party,has ceased to be a member of that party, the elections officer shall,subject to the provisions of subsection (2), by notice published in the .gazette declare that such person –
has vacated his office of member, if he had been elected asa member of the local authority; or
Farook v. Siriwardena (Returning Officer) (Ismail, J.)
has forfeited his rights to have his name retained in thenomination paper of that recognized political party for fillingany casual vacancy,
and thereupon, such person shall vacate his office as member ofthat local authority or the name of such person shall be expungedfrom the nomination paper of that recognized political party, as thecase may be, as from the date on which such declaration ispublished in the Gazette.
(2) The elections officer shall not publish the notice referred to insubsection (1) except after-
notice to such person and such recognized political party;and
expiry of a period of twenty-one days from the date of suchnotice.
Every such notice shall be sent by registered post.”
There is nothing in the above provisions to indicate that theelections officer should himself take any further steps to ascertainwhether the member has been lawfully removed from the party, quiteapart from the information furnished by the secretary under section10A (3) of the Ordinance. The elections officer has a ministerial dutyto perform on receipt of the information from the secretary in strictobedience to the provisions contained in section 10A (1) and (2) ofthe Local Authorities Election Ordinance.
Jain and Jain in The principles of Administrative Law (1988) 4thEd. at page 325 state as follows:
“Functions dischargeable by the administration may either beministerial or discretionary. A ministerial function is one wherethe relevant law prescribes the duty to be performed by theconcerned authority in certain and specific terms leavingnothing to the discretion or judgment of the authority. It does notinvolve investigation into disputed facts or making of choices.
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The authority concerned acts in strict obedience to the lawwhich imposes on it a simple and definite duty in respect ofwhich it has no choice."
I am of the view that there is no further duty cast on the electionsofficer on receipt of information received from the secretary of theparty that a member has ceased to be a member of the party otherthan to firstly, give notice under section 10A (2), and on the expiry of21 days from the date of such notice to proceed under section 10A(1) to declare by publishing in the Gazette that such person hasvacated his office as member of the local authority. The 1strespondent has in this case strictly observed the provisionscontained in section 10A of the Local Authorities ElectionsOrdinance. The petitioner cannot therefore succeed in thisapplication.
The application is dismissed. The 1st and 2nd respondents areeach be entitled to costs fixed at Rs. 1500/-.
Application dismissed.