GIVENDRASINGHA, Petitioner, and R. F. S. DE MEL, Respondent

126-NLR-NLR-V-49-GIVENDRASINGHA-Petitioner-and-R.-F.-S.-DE-MEL-Respondent.pdf


422
Oivendraaingha v. R. F. S. de Mel.
1948Present: Basnayake J.
GIVENDRASINGHA, Petitioner, and R. P. S. DE MEL,Respondent.In the Matter of an Application for a Writ of QuoWarranto.
Writ of Quo Warranto—Municipal Council—Election of Mayor—Proposer dis-qualified but Councillor de facto—Validity of election—No. objection taken—Acquiescence—Discretion of Court—Municipal Councils Ordinance, No. 29 of1947—Section 14 (3).
The respondent was proposed for election as Mayor of Colombo by one G whoat the time was disqualified from sitting or voting as a Councillor but did inPact sit and vote as such. On an application for a writ of Quo Warranto—
Held (i) that the provisions of section 14 (3) of the Municipal CouncilsOrdinance, No. 29 of 1947, were imperative and that the candidatehad to be proposed and seconded ;
(ii) that the requirement is satisfied if the proposal is made by a Coun-cillor de facto ;
(iii) that the writ being discretionary will not be granted where thepetitioner had acquiesced in the election.
Qivendra&ingha v. R. F. S. de Mel.
423
PPLICATION for a writ of quo warranto on the Mayor of theColombo Municipal Council.
B. Wikramanayake, with M. A. M. Hussain, for the petitioner.—Section 14 (3) of the Municipal Councils Ordinance, No. 29 of 1947,provides that the name of any councillor may be proposed for electionas Mayor by any other councillor present. This section imposes thecondition precedent to the election of Mayor that the proposer shouldbe a councillor. The proposer in the present case was not a councillorat the time he proposed the respondent for election as Mayor. Atthat time he had already been appointed Parliamentary Secretaryto the Ministry of Labour. By his becoming a Parliamentary Secretaryhe became a holder of a public office under the Crown and therefore,by that very fact and without any declaration of any court, he vacatedhis seat in the Municipal Council and became disqualified to sit, voteand transact business in the Municipal Council under section 11 of theLocal Authorities Elections Ordinance, No. 53 of 1946.
By all the tests applicable the proposer, as Parliamentary Secretary,holds a public office under the Crown. He is appointed by the Governor-General, paid out of public funds, and performs public duties. See In reMirams 1 and The King v. Whitaker z.
The condition precedent to the election of Mayor that the proposershould be a councillor failed and therefore the respondent has not beenduly elected. Failure to obey imperative requirement of law in caseof elections would make an election invalid. See Kulatileke v. Raja-karuna et al. 3.
H. V. Perera, K.C., with Nihal Gunasekera and E. A. G. de Silva, forthe respondent.—In the first place it is submitted that the proposer isnot disqualified to sit and vote in the Municipal Council by reason ofbeing appointed Parliamentary Secretary. The public office contem-plated by section 10 (1) of the Local Authorities Elections Ordinance is-an office of a permanent nature and an office which exists independentlyof the person or persons filling the office. According to the scheme ofthe Orders in Council, 1946 and 1947, the office of Parliamentary Secretarydoes not seem to be either a permanent office or an office existing indepen-dently of the person who fills it. Under the Orders in Council it is notnecessary to have any Parliamentary Secretaries at all nor is it necessary,once a Parliamentary Secretary vacates office, to appoint another asParliamentary Secretary. If the proposer does not hold a public officethe petitioner fails.
But assuming that the proposer was not duly qualified to sit and votein the Municipal Council at the relevant time, it is submitted that thepetition should fail for the following reasons :—
(1) Even though the proposer was not de jure councillor at the relevanttime, he was a de facto councillor. He was sitting in the Council and wastaking an active part in the business of the Council. So that the well
*(1891) L.R.l Q.B. 594.*(1914E.3 K. B. 1283 at 1296.
*(1921) 5 Time
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B ASNAYAJCE J.—Givendraaingha v. K. F. S. de If el.
inown rule that in the case of an election by corporators, i.e., members ofa corporation, the title of the electors cannot be called in question whensuch title could have been called in question before the election and whenthe corporators had been de facto corporators, would be applicable.See The King v. Hughesl.
An irregularity which does not affect the result does not avoid anelection. The election of the Mayor was an act intra vires of the Muni-cipal Council. The Council elects the Mayor by a majority of votes.The respondent has secured 19 votes which represents a clear majorityin any contest. Under such circumstances writ would not lie. SeeShortt on Mandamus pp. 149-151. See also In re Horbury Bridge, Coal,Iron, and Waggon Company 2 and Queen v. Ward3.
In this case the petitioner has no right to complain as he hasacquiesced in the election from the beginning to the end.
E. B. Wikramanayake, in reply.—If the election is void the writ walllie. See King v. Speyer and Cassels *. The King v. Hughes [supra)does not apply as section 11 of Local Authorities Elections Ordinancemakes the seat vacant by the very fact that the proposer was appointedParliamentary Secretary. No declaration of court is necessary. Further,an express provision of law must be obeyed.
Cur. adv. wit.
May 21, 1948. Basnayakk J.—
This is an application by one Priyaseela Givendrasingha (hereinafterreferred to as the petitioner) for a writ of quo warranto on one R. F. S.•de Mel (hereinafter referred to as the respondent) who was on January 12,1948, elected Mayor of the Colombo Municipal Council. At the meetingsummoned under section 15 (1) of the Municipal Councils Ordinance,No. 29 of 1947 (hereinafter referred to as the Municipal Councils Ordi-nance), the respondent’s name was proposed for election as Mayor byone A. E. Goonesinha (hereinafter referred to as the proposer). Thepetitioner proposed the name of one Dr. Kumaran Ratnam. In thesecret ballot which was held the respondent secured 19 votes whilehis rival, Dr. Ratnam, received 11 votes, and the respondent was declaredelected by the presiding officer.
It is alleged that the respondent’s election is bad inasmuch as the propo-ser was at that date not qualified to sit or vote as a member of the Munici-pal Council as he was the holder of a public office under the Crown inCeylon. His right to sit or vote in the Municipal Council is the matter of-a separate application for a mandate in the nature of a writ of quo warranto.That application was heard on the same day as this and I have in a.separate judgment given my reasons for holding that the proposer is not■qualified to sit or vote as a member of the Municipal Council.
Section 14 (3) of the Municipal Councils Ordinance provides that thename of any Councillor may with his consent be proposed and seconded for
1 (1825) 4B.& C. 368 ; 107 E.R. 1096* (1873) L. R. 8 Q.B.D. 210.
* (1879) L. R. 11 Oh. 109 at 118.* (1916) L. R. 1 K.B. 595 at 612.
BASNAYAJCE J.—Givendraaingha v. R. R. S. de Mel.425
election as Mayor by any other Councillor present at such meeting andthe Councillors present shall thereupon elect by secret ballot in each caseand in accordance with the provisions of sub-section (4) a Mayor fromamong the Councillors proposed and seconded for election as Mayor.
It is submitted by the petitioner that the respondent has not been dulyproposed by a Councillor, as the proposer was disqualified at the timefrom sitting or voting as a member of the Council. Learned counsel for thepetitioner puts his case in this way. The statute requires that a candidatefor the office of Mayor should be proposed by a councillor, i.e., a personwho is qualified to sit and vote as a member. As the respondent’s pro-poser was not so qualified, he has not been duly proposed, and the require-ments of section 14 (3) have not been satisfied. The failure to complywith the requirements of the statute has made the respondent’s electionvoid and he is not entitled to exercise the duties of the office of Mayor.The case of Kvlatileke v. Rajakamna et al.1 has been cited in supportof this proposition. That case deals with the election of a VillageCommittee. It was a requirement of section 22 2 of the Village Commu-nities Ordinance, No. 9 of 1924, as amended bj the Village Communities(Amendment) Ordinances, No. 12 of 1929 and No. 10 of 1933, that theGovernment Agent should “ within thxeee months before the date on whichany term of office of a Committee shall expire ’ ’ appoint a day for theelection of a new Committee. The Government Agent failed to complywith this requirement of the statute and it was held that the election wasnot valid. Garvin J. observes at page 110 : “ Where as in this instancethe provisions of the Ordinance which regulated the holding of suchelections have not been complied with it cannot be said that the electionof the respondents to the offices they hold has been validly held ”.
This part of learned counsel’s argument depends on the questionwhether section 14 (3) is directory or imperative, apart from the questionwhether the word “ Councillor ” therein excludes a Councillor rite facto.The general rule is that an absolute enactment must be obeyed or fulfilledexactly, but it is sufficient if a directory enactment be obeyed or
»(I927) 5 Times 109.
* Section 22 of the Village Communities Ordinance, No. 9 of 1924, as amendedby the Village Communities (Amendment) Ordinances, No. 12 of 1929 and No. 10of 1933 :
"22 (1) The Government Agent shall appoint a day, within three monthsbefore the date on which any term of office of a committee shall expire, for theholding of a meeting for the election of a committee for the three years nextsucceeding reckoned from the first day of July next following the day of suchelection
Provided that if, by reason of the inaccessibility of any subdivision, suchmeeting cannot conveniently be held, within the said period of three months,the Governor may, by notification in the Government Gazette, enlarge the saidperiod, in the case of any such subdivision, from three months to six months.
In respect of an election occasioned by a committee going out of officeotherwise than by effluxion of time, the Government Agent shall within threemonths of the said event hold a meeting for the election of a committee for theunexpired portion of such former committee’s term of office.
Such election shall be held at a place within the subdivision and shallproceed in such manner, and be subject, so far as the same are applicable, tosuchconditions as are in this Ordinance provided in the case of meetings of inhabitants.Except that voting shall be by ballot if so provided for by rules made under section29 of this Ordinance.”
33 – N.L.R. Vol – xlix
426
BASNAYAKB J.—Givendrasingha v. R. F. S. de Mel.
fulfilled substantially (W oodward v. Sarsons1 and De Villi ers v. Louw2.The latter case lays down the principle that the breach of the Act govern-ing elections will not always be a ground for avoiding an election. Thedeparture from the prescribed method of election must be so great thatthe tribunal must be satisfied as a matter of fact, that the election wasnot an election under the existing law. It is not enough to say thatgreat mistakes were made in carrying out the election under those laws :it is necessary to be able to say that, either wilfully or erroneously, theelection was not carried out under those laws, but under some othermethod.
Curlewis J. A. states the proposition thus :
“ From this we may infer that the principle which the Legislatureintended the Court to act upon in considering the validity or invalidityof individual votes based on a breach of a provision of the Act or ofthe Regulations, whtre the Legislature has not eracted what the effectof such breach shall be, is that such breach should not invalidate thevote unless the breach be of such a nature as to amount to a violationof a principle either in the Act or the Regulations on which an electionshall take place or a vote be recorded. ’ ’
In the case of Reg. v. Ward3 the same principle was thus stated :
“We think, therefore that seeing the mistake committed herehas produced no result whatever, that the same persons wouldhave been elected if the election had been conducted with the mostscrupulous regularity, and that the defendant’s title, if bad at all,is only had, as I may say, on special demurrer, we ought in theexercise of our discretion, to refuse leave to disturb the peace of thisdistrict by filing this information. ’’
This principle has been followed by this Court in a number of cases 4.It was in 1935 made a part of our statute law relating to elections toMunicipal Councils 5, and has since 1946 been extended to all electionsgoverned by the Local Authorities Elections Ordinance0.
It is also an accepted principle in election law that, although provisionsas to procedure are regarded as important and their observance rigidlyenforced, they are not generally regarded as imperative so as to invalidatean election once an election has been concluded and a candidate returned.
It is clear from the principles I have stated above that the disquali-fication of the proposer is not a ground sufficient in law for invalidatingthe respondent’s election. The case of Kulatileke v. Rajakaruna {supra)has no application to the present question. It seems to proceed on thebasis that no election as required by the Ordinance was at all held.
'■(1874-75) 10 L.R.CJ>. 733 at 746.
8 (1931) S. A. Law Reports A. D. 241.
3 (1873) 42 L.J. Q.B. 126 at 131.
Karunaratne v. Government Agent, Western Province, (1930) 32 N. L. R. 169 ;Jayasooria v. De Silva (1940) 41 N. L. R. 510 ; Ranesinghe v. Government Agent,S<U>aragamuwa (1943) 44 N. L. R. 572.
3 Section 52, Colombo Municipal Council (Constitution) Ordinance, No. 60 of 1935,now repealed.
Section 69 of Ordinance No. 53 of 1946.
BASNAYAKE J.—Givendrasingha v. R. F. S. de Mel.
427
Learned counsel for the respondent contends that the public office■contemplated in section 10 (1) (d) of the Local Authorities ElectionsOrdinance, No. 53 of 1946 (hereinafter referred to as the Local AuthoritiesElections Ordinance) was an office which existed independently of theperson filling it. The office of Parliamentary Secretary, he submits,does not exist apart from the holder and was therefore not the kind ofoffice contemplated in the section. Although section 47 of the Ceylon(Constitution and Independence) Orders in Council, 1946 and 1947,(hereinafter referred to as the Order in Council), provides that the numbershould not exceed the number of Ministers, the number of ParliamentarySecretaries is not fixed by law. Their number is entirely at the dis-cretion of the Governor-General. The argument now submitted bylearned counsel was advanced in regard to the office of director of acompany in the case of the Great Western Ry. Co. v. Rater1, whereinRowlatt J. states :
“ It is argued, and to my mind argued most forcibly, that thatshows that what those who used the language of the Act of 1842meant when they spoke of an office or an employment of profitwas an office or employment which was a subsisting, permanent,substantive position, which had an existence independent of theperson who filled it, and which went on and was filled in successionby successive holders, and that if a man was engaged to do any dutieswhich might be assigned to him, whatever'the terms on which he wasengaged, his employment to do those duties did not create an officeto which those duties were attached; he was merely employed to docertain things, and the so-called office or employment was merelythe aggregate of the activities of the particular man for the time being.
I myself think that that contention is sound, but having regard to thestate of the authorities t do not think I ought to give effect to thatcontention. My own view is that Parliament in using this languagein 1842 meant by an office a substantive thing that existed apartfrom the holder of the office. If I thought I was at liberty to takethat view I should decide this case in favour of the appellants,-butI do not think I ought to give effect to that view, because I think itis contrary to what was proceeded upon in substance in Attorney-General v. Lancashire and Yorkshire Ry. Co., 2 H. & C. 792 ; 10 L. T.95, in 1864, and one ought not lightly to depart from a course of businessproceeded upon in matters of this kind. ”
This opinion of Rowlatt J. was considered in the case McMillan v.Guest 2. Lord Wright observes, in regard to this expression of opinionas to the meaning of the word “ office ” which Lord Atkinson adoptedwhen the case of Great Western Ry. Co. v. Bater went to the House ofLords (1922) 2 A. C. 1: “I do not attempt what their Lordships didnot attempt in Baler’s case [1922] 2 A. C. 1, that is, an exact definitionof these words. They are deliberately, I imagine, left vague. Thoughtheir true-construction is a matter of law, they are to be applied in thefacts of the particular case according to the ordinary use of languageand the dictates of common sense with due regard to the requirement
1 {1920) L. R. 3 K. B. £>. 266 at 274.
{1942) A. C. 561.
428
BASNAYAJKE J.—Givendrasingha v. R. F. S. de Mel.
that there must be some degree of permanence and publicity in theoffice. ” In the present instance the express provisions of the Order inCouncil which I have discussed in my judgment on a similar application *in respect of the proposer leave no room for the view that the office ofParliamentary Secretary is not an office which conforms to the standardlaid down by Lord Wright. The offices enumerated in section 10 (7)of the Local Authorities Elections Ordinance I think sufficiently indicatethat the public office contemplated here is not the type of office learnedcounsel for the respondent has in mind. There is no limit, to the numberof Justices of the Peace and Unofficial Magistrates that may be appointed.Nor is it necessary that on the resignation or death of a particular Justiceof the Peace or Unofficial Magistrate another should be appointed totake his place. The position is the same in regard to Commissionersfor Oaths and Inquirers. These considerations indicate that the words“ public office ” in section 10 (1) (d) of the Local Authorities ElectionsOrdinance have a wide connotation.
Learned counsel further submits on the authority of The King v.Hughes1 that in an application for a quo warranto on the elected thepetitioner is not entitled to put in issue the title of the Councillors. Thatis a case of an information in the nature of a quo warranto for usurpingthe office of Mayor of Monmouth. The plea was taken that he was dulyelected according to the governing charter of the borough. In thereplication it was urged that there were two candidates ; that 50 goodvotes, tendered for the losing candidate, were improperly rejected ; andthat 38 persons, who had been unduly elected, and admitted as buigesses,were received as voters for the defendant, and that a majority of thelegal votes tendered was ia favour of the other candidate. On demurrer,it was held that the replication was bad, in that it was not a direct denialof the validity of the defendant’s election, and also attempted to putin issue the title of the electors {corporators de facto), which cannot bo donein an informaton against the elected.
The judgment of Holroyd J. at page 1100 states succinctly the principleson which that decision proceeds.
“ It is a fundamental principle of pleading, that you must confessand avoid or traverse some one material fact, and the same rule appliesto replications as to pleas. The question to be tried in this case is,whether the election of Hughes was good or not. The prosecutorcould only put that in issue by a direct and not by an argumentativedenial of the validity of the election. These replications state a numberof facts, from which a conclusion of, * not duly.elected ’, is to be drawn.Llpon that short ground, it is clear that the replications are bad. Asto the other points, it is obvious, that many nice questions may ariseas to whether an officer is so de fa^to or not; sometimes that may beso combined with the question of title de jure that they cannot be served.But when a person is in possession of the office, his title cannot bethus questioned. Where there has been a judgment of ouster, heis no longer in possession of the office ; that judgment, if without
* Vide (1948) 49 N. L. B. 344—Ed.
1 (1825) 4B.& C. 368 : 107 E. B. 1096.
BASNAYAJCE J.—Givendraaingha v. R. F. S. de Mel.
429
fraud, is conclusive according to the case of Rex v. Mayor of York(5 T. R. 66). But without further entering into that, I am of opinion,that the first is a decisive objection to the replications.”
Learned counsel also submits that no objection was taken at thetime of the election to the proposer and that if objection was taken atthe time there were other Councillors who were qualified, ready, andwilling to propose the respondent’s name. An affidavit to this effectsigned by sixteen Councillors has been tendered to this Court. He alsoargues that once the question has been put and voted on, the want ofqualification in the proposer or seconder does not vitiate the election.The case of In re. Horbury Bridge Coal, Iron, and Waggon Company1is cited in support. Jessel M. R. observes at page 117 : “ I think thatthe objection that the amendment was not seconded cannot prevail,it being admitted that it was put and voted upon.” James L.J. observesat page 118 : “In my opinion if the chairman put the question withoutits having been either proposed or seconded by anybody, that wouldbe perfectly good.” A similar view was expressed by Maartensz A.J.in the case of Jayawardene v. Ratemahatmaya of Katugampola 2 where hesays :
“ Finally it was contended that the resolution should not havebeen put to the meeting as it was not seconded by anyone. Counselwas unable to refer me to any authority or rule in support of thiscontention. In the absence of any rule that motions should not beput to the meetings of the inhabitants of a subdivision unless theyare seconded, I am not prepared to uphold the objection.”
These cases cannot be regarded as applying to an election under section14 of the Municipal Councils Ordinance, sub-section (3) of which expresslyprovides that the election shall take place upon a name being proposedand seconded. It reads :
" (3) The name of any Councillor may with his consent be proposedand seconded for election as Mayor or Deputy Mayor by any otherCouncillor present at such meeting and the Councillors present shallthereupon elect, by secret ballot in each case and in accordance withthe provisions of sub-section (4), a Mayor and a Deputy Mayor fromamong the Councillors proposed and seconded for election as Mayorand Deputy Mayor respectively.”
The words “ shall thereupon elect ” and “ from among the Councillorproposed and seconded for election as Mayor and Deputy Mayor res-pectively” leave no scope for the contention that the name of a candidatefor either office need not be proposed and seconded as required by theMunicipal Councils Ordinance. Sub-section (4), which provides for thesituation “ where more than two candidates are proposed and secondedfor election as Mayor or Deputy Mayor ”, puts the matter beyond doubt.The question then is ; Are the requirements of sub-section (3) satisfiedif the proposal is made by a Councillor de facto ?
No authority has been cited in support of the proposition that actsof a Councillor de facto are a nullity. Neither the Local Authorities
1 (.1879) Is. R. 11 Ch. Div. 109.*(1930) 32 N. L. R. 148 at 151.
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BASNAYAKE J.—Qivendrasingha v. JR. F. S. de Mel.
Elections Ordinance nor the Municipal Councils Ordinance declares themto be null and void. In the absence of such a provision it cannot beassumed that the acts of a de facto Councillor are void. Section 12 of theLocal Authorities Elections Ordinance contemplates the case of aCouncillor exercising the functions of his office even after his seat hasbecome vacant. If he knowingly acts as a member after his seat hasbecome vacant, he becomes liable to the penalty prescribed in thatsection. But nothing is said therein of the effect of the disqualificationon the acts of the Councillor. Although from very early times similarlegislation in England made express provision to the effect that the actsand proceedings of a person in possession of a corporate office, and actingtherein, shall, notwithstanding his disqualification orwant of qualification,be as valid and effectual as if he had been qualified, our Ordinancesproviding for the establishment of Municipal Councils have been silenton the point.
I was informed from the bar that the action contemplated in section13 (3) of the Municipal Councils Ordinance, has not been taken in respectof the proposer, and that at the relevant date there was no other personclaiming the right to exercise the duties of a Councillor in his place.The position seems to be that it was assumed that the proposer wasnot disqualified in law though the fact which ultimately resulted in hisdisqualification may have been known to all his fellow Councillors. Itappears from the affidavit of the respondent that the proposer took a veryactive part in the business of the Municipal Council, and it is assertedtherein that no objection was at any time taken by the petitioner or anyone else to his right to act as a Councillor.
Apart from principles of election law, the question is one that mayproperly be examined in the light of our law of corporations. Section 3of the Civil Law Ordinance enacts that in all questions or issues whichmay arise or which may have to be decided in this Island with respect tothe law of ‘■■..irporations the law to be administered shall be the same aswould be administered in England in the like case, at the correspondingperiod, if such question or issue had arisen or had to be decided inEngland, unless in any case other provision is or shall be made by anyOrdinance. There bein' no provision made in respect of acts of disquali-fied Councillors, the question may properly be decided according to thelaw of England. The words of section 3 of the Civil Law Ordinance“ the law to be administered shall be the same as would be administeredin England in the like case, at the corresponding period, if such questionor issue had arisen or had to be decided in England” are extensiveenough to permit of the application of the provisions of English statutelaw. I am fortified in my view by the decision of the Privy Councilin the case of Seng Djit Hin and Nagurdas Purshotumdas & Company 1wherein Lord Dunedin in construing the corresponding provision of theStraits Settlements Ordinance says :
“ The learned judges of the Court of Appeal based their judgments
upon the view that the English statutes above cited were no part of
the mercantile law which they thought was the law to be administered
'{.1923) A. 0. 444.
B ASNAYAKE J.—Oivendrasingfuj v. R. F. S. de Mel,
431
in terms of 8. 5 of the Ordinance. Their Lordships are quite unableto agree with this view, which they think fails to appreciate that itis not the ‘ mercantile law ’ but ‘ the ‘law ’ which is to be the same asthe law which would be administered in England in the like case.The first thing to be settled is : Has a question or issue arisen in theColony with respect to—here follow the enumerated departments oflaw and then come the general words ‘ and with respect to mercantilelaw generally ’ ? Now the question here to be decided in the Colonyis a question as to the law of sale. No one can doubt that the law ofsale is part of the mercantile law. If any proof of the use of suchwords is required it would be found in the title of the Mercantile Law(Amendment) Act, in two statutes of 1856, both of which especiallydeal with sale. That being settled the section goes on to say not,as the learned judges seem to assume, that ‘ the mercantile law ’(though indeed if it were so it would be doubtful if the result wouldbe different) but that ‘ the law ’ to be administered shall be the sameas would be administered in England in the like case at the correspon-ding period. Now if the same question as to sale had to be decidedat the sametime in England it is clear beyond all doubt that the abovecited statutes of 1915 and 1917 could be pleaded if the facts allowedof their application. That no other provision had been made byColonial statute all the learned judges agreed, and the contrary hasnot been urged in this appeal.”
The language of section 60 of the Local Government Act of 1933which speaks of “ any person elected to an office under the Local Govern-ment Act, 1933 ” leaves me in doubt as to whether it is permissible toresort to that section. I therefore refrain from expressing any definiteopinion on this question as it is unnecessary to do so in this case, andprefer to rest my decision on the principles of law I have discussedearlier.
As the view I have formed is that the election of the respondent isnot invalid, it is not necessary to discuss at length the submission madeby learned counsel for the respondent that the petitioner, havingacquiesced in the proceedings, cannot now be heard to say that therespondent’selection is bad. It is sufficient to say thatlagree withlearnedcounsel. This court has always refused to exercise its discretion in favourof a person who having taken no objection at the proper time to theproceedings afterwards seeks to question them. In the case of Jayasooriav. De Silva 1 Soertsz J. dealing with a case almost similar observes :
“ The result is that in effect and in substance, the majority of themembers present were in favour of the respondent and althoughthe letter of the law has not been fulfilled, its spirit has been satisfied.When in that state of things a voter such as the petitioner actingclearly on behalf of parties, who had acquiesced in the procedureadopted, comes forward insisting upon the letter of the law, strainingat a gnat so to speak, a Court exercising a discretion vested in it, maywell refuse to interfere in this extraordinary manner.”
1 (1940) 41 N. L. R. S10 at 511.
432
BASNAYAJCE J.—Qivendrasingha v. R. F. S. de Mel,
The position would be different in a case where the complaint is that apositive requirement of law regarding the qualification of the personelected has not been complied with (Mendias Appuv. Hendrick Singho1).
Learned counsel for the respondent made a final submission thatif I came to the conclusion that the respondent’s election was bad therewas no machinery whereby a second election could be held. It is truethat the Ordinance does not make provision for such a situation, but theCourt has power to direct by mandamus the holding of such an election.The law on this subject is discussed in paragraph 1281 of Volume 9 ofHalsbury’s Laws of England (Hailsham Edition). This Court has givensuch directions in the case of De Costa v. Assistant Government Agent,Colombo 2.
For the above reasons the rule against the respondent is dischargedwith taxed costs. I direct that the costs be taxed in the highest classaccording to the scale provided for appeals from the District Court inPart IV of the Second Schedule to the Civil Procedure Code.
Rule discharged.*(1944) 45 N. L. R. 476.
(1945)46 N. L. R. 126.