Fernando v. Peiris.
Present: Wijeyewardene J.
FERNANDO v. PEIRIS.
In the matter of an Application for a writ of quo warrantoAGAINST THE CHAIRMAN, V. C., KAMMAL PaTTU.
Writ of 'quo warranto^Rule will not issue when the office is vacated—Appoint-ment as Acting Chairman to Village Committee. '
The Supreme Court will not grant a writ of quo warranto to questionthe title of a respondent to an office after he has actually ceased to holdit.
This rule is subject to two exceptions : —
. Where the resignation has taken place only after the issue of therule nisi.
, Where the applicant’s purpose is to substitute another candidatein the office.
1 <S. A. L. It. (1911) A. D. 568.• (1908) 1 S. G. It. 70.
S. A. L. R. (1915).A. D. p. 647.5 (1913) 2 Bal. N. C. 19.
(1926) 28 N. L. R. 140..• (1926) 28 N. L. R. 283 at 285.
WIJEYEWARDENE J.—Fernando v. Peiris.rjlHIS was an application for a writ of quo warranto.
H. V. Perera, K.C. (with him S. W. Jayasuriya), in support.
L. A. Rajapakse (with him V Wijeytunge), for respondent.
ICur. adv. vult.
August 6, 1943. WIJEYEWARDENE , J.
This is an information in the nature of a quo warranto. The petitioner. asks for a declaration that the election of the respondent as “ Ghairmanand Chief Executive Officer” of the Village Committee of Kammalpattu on March 8, 1943, is invalid ar)d moves that such election be setaside.* ,
The petitioner is a qualified voter of a certain ward in the village areaof Kammal pattu and the respondent, one of the sixteen members of theVillage Committee, of which the duly elected Chairman. and Vice-Chairman were W. B. Fernando and D. P. Andrado respectively. D. P.Andrado acted for the Chairman for some, time before March 3, 1943,owing to the illness of W. B. Fernando.
On March 3, Andrado wrote the following letter R 1 to Fernando : —
“I am suffering from fever from last night, therefore I might not beable to continue to act for you if I did not recover soon.”
On receipt of that letter, Fernando addressed letter R 2 of March 7to the members of the Village Committee informing them that bothhe and Andrado would be “ absent from duty owing to illness ” Andrequesting them to “ select a member to perform the duties of thePresident ” until he resumed work. This letter was considered at ameeting of the Village Committee on March 8, and the respondent waselected without any opposition to preside over that meeting. The com-mittee passed also a resolution appointing the respondent “ to' act asChairman till the Chairman resumed duties as the Chairman and theVice-Chairman was ill ”. This was confirmed by the Chairman by hiswriting R 6 of March 9. The respondent forwarded a copy of that resolurtion on March 8 to the Assistant Government Agent and asked for his“ approval ”. The Assistant Government Agent sent a reply R 5 thenext day stating that the resolution passed by the Committee did notrequire his approval and calling for a specimen signature of the respondentfor official purposes and this was duly forwarded. The respondentcontinued to act as Chairman till May 24, when Fernando returned tohis duties.
The above statement of facts shows that no bad faith could be imputedeither to the respondent or the other members with regard to the appoint-ment of an acting Chairman. The illness of the Chairman and the Vice-Chairman created a situation which the members of the Committeeattempted to meet as best as they could. Under section 30 (2) of theVillage'Communities Ordinance (Chapter 198) the Chairman may. general-ly do and discharge the various acts and functions which have to be doneand discharged by the Village Committee. Under section 31 (2) of theOrdinance, the Chairman may delegate his functions to the Vice-Chairman or the Government Agent -may direct the Vice-Chairman toperform such functions when the Chairman is absent from duty owing to
392WIJEYEWARDENE J.—Fernando y. Peiris.
illness. The Ordinance has made no express provision, however, for acase where both the Chairman and the Vice-Chairman are unable toattend to their duties owing to illness. There is, however, some provisionmade in section 32 that in the absence of both the Chairman and theVice-Chairman the members present at any meeting of the Committeemay elect a member to preside over the meeting.
Whether the appointment of the respondent to officiate as chiefexecutive authority is strictly legal or not it is certainly not strange thatthe Committee which is empowered by the Ordinance to perform variousexecutive functions should have believed in good faith that it was necessaryfor the due administration of the business of the Village Committee tomake such an appointment in the special circumstances of this case andthat it had the power to appoint one of its members.
The respondent and the other members must have been confirmed inthat belief when they received the letter R 5 which had been writtenby the Assistant Government Agent with a full knowledge of the relevantfacts. That letter would have been interpreted by them naturally as arecognition of the validity of the appointment.
There has been a considerable delay in making this application. Therespondent’s appointment was made on March 8, the applicant’s affidavitis dated May 18, while the papers have been filed on May 31. There hasbeen no satisfactory explanation of this delay and that is a matter whichthis Court is entitled to take into consideration. Moreover this delay hasresulted in the application being made to this Court a week after therespondent has ceased to function as Acting Chairman. As a generalrule a Court will not grant an information to question the title of arespondent to an office, after he has actually ceased to hold it (Shortt onMandamus, p. 146). No doubt, this general rule is subject to certain wellknown exceptions, e.g., where the resignation has taken place only afterthe issue of the rule nisi (Rex v. Wharlow ') or where the applicant’spurpose is to substitute another candidate at once in the office as explainedin Regina v. Blizafd2. In that case, the defendant as Mayor officiated asthe Returning Officer at an' election on November 1, when four Councillorshad to be elected for the borough. There were five candidates includingthe relator and .the defendant. The relator served a notice on thedefendant at the opening of the poll stating that he was ineligible fornomination or election as a Councillor during the term of his Mayoralty.In spite of that notice the defendant was declared duly elected as Coun-cillor at the close of the poll and the relator who was placed last on thelist could not secure his election. On November 9, the defendantexplained to the Council that he was misled by the notice served on himand that he did not understand at the time that the objection to him wason the ground that«he was the Returning Officer. He then resigned hisoffice on November 9 before the rule was moved for. On an objectiontaken against the rule being made absolute Cockburn C.J. said in thecourse of his judgment—
“ In the cases, which have been cited, and in which it has been heldthat a quo warranto was necessary notwithstanding the resignation ofthe person against whom the proceeding was directed, the resignation' i 105 E. R. 310.!2 Queen’s Bench 55.
Bandura and Dingiri Menika.
had taken place after the rule nisi had been obtained. I do not,therefore, proceed on the authority of those cases. Here we havesomething more than a proceeding for the mere purpose of ousting the'party from the office which he has been holding. If the purpose ofthese proceedings were merely to vacate the office, so that a freshelection might take place, it is obvious that the resignation of theoffice would effect that purpose just as well as the removal of theperson from the office by quo warranto. In this case, however, therelator not only denies the validity of the defendant’s election, but heclaims to have been himself elected into the office …. Theeffect of a resignation would be simply to send the parties to a newelection, while the effect of a disclaimer or judgment for the Crownupon the final issue of the quo warranto would be to displace thedefendant from the first, leaving it open—which otherwise it wouldnot be—to the relator to claim the office to which he says he has beenelected, and if he can establish that ckdm upon a mandamus, to beadmitted into the office ”.
It is clear that the present case does not fall under any of thoseexceptions.
I order the rule issued on the respondent to be discharged with costs.