H. F. C. FONSEKA ,Petitioner, and S . SELLATHURAI , Respondent

119-NLR-NLR-V-54-H.-F.-C.-FONSEKA-Petitioner-and-S-.-SELLATHURAI-Respondent.pdf

486
Ponseka v. Sellalhurai
1951Present: Nagalingam S.P.J.H. P. C. PONSEKA, Petitioner, and S. SELIATH URAI, Respondent
S. C. Ill—Application for a Writ of Quo Warranto on the Memberfor Ward No. 7, Hatton-Dickoya Urban Council
Quo warranto-—Public office—Appointment thereto—Should appointee communicatehis acceptance ?—“ Sold office ”—Rent Restriction Act, So. 29 of 1948,s. 19 (6)—Local Authorities Elections Ordinance, No. 53 of 1946, s. 10 (1) (d).
Where the right of a member of an urban council to sit and vote at meetingsof the council was challenged on the ground that at the date of his electionhe was a "member of a Rent Control Board and, therefore, being a holder ofa public office under the Crown within the meaning of section 10 (1) (d) ofthe Local Authorities Elections Ordinance, was disqualified from being elected—
Eeld, (i) that where a person receives an appointment to an office whichhe is -willing to accept, it is not essential to the validity of it that the appointeeshould communicate his acceptance to the appointing authority. If hisassent can be implied or inferred from attendant circumstances and particularlyfrom his conduct, the appointment then becomes effective.
(ii) that once the respondent was appointed to, and was willing to accept,the office of Member of the Rent Control Boafd. he automatically became theholder of the office, subject to the contingencies set out in section 19 (6) of theRent Restriction Act ; the circumstance that he neither actually functionedas such member nor received remuneration was immaterial.
NAGALIjNTGAM S.P.J.—Fonseka v. Sellathurai
487
I,
APPLICATION for a writ of quo warranto on the member for wardNo. 7, Hatton-Dickoya Urban Council.
N. E. Weerasooria, K.C., with W. D. Ghmasekera, for the petitioner.
H. V. JPerera, K.C., with H. W. Tambiah, M. M. Kumarahulasingham.and G. C. Niles, for the respondent.
Cur. adv. vult.
November 9, 1951. Nagalingam S.P.J.—
A Writ of Quo Warranto was directed to the respondent calling uponhim to shew by what authority he sits and votes at meetings of theHatton-Dickoya Urban Council. The information to Court was pre-sented by the petitioner on the footing that the election of the respondentwas void for the reason that the respondent was personally disqualifiedfrom being elected as he was the “ holder of a public office under theCrown ” in Ceylon within the meaning of that phrase in section 10 (1)
of the Local Authorities Elections Ordinance 53 of 1946.
The facts are not in dispute. By letter PI of 31st March, 1950, thePermanent Secretary to the Minister of Health and Local Governmentinformed the respondent that the Minister
“ has in terms of section 19 (2) of the Rent Restriction Act No. 29of 1948 appointed you to fill an existing vacancy in jthe panel of5 persons serving on the Rent Control Board for the area comprisedwithin the administrative limits of the Hatton-Dickoya UrbanCouncil.”
The respondent has affirmed, and his statement has not been challenged,that he was at no time prior to letter PI being sent to him consultedregarding his willingness to serve on the Rent Control Board, and hefurther affirms that at no time did he apply to anyone for the officenor intimate to anyone that he would be willing to accept such an office.On the other hand the fact remains that on or after the receipt of theletter PI the respondent did not notify the Permanent Secretary orany other person in authority that he was unwilling to accept office.
It is in evidence that the full complement of members constitutingthe Rent Control Board for the Hatton-Dickoya Urban Council areahad Jjeen appointed prior to 23rd March, 1950 (Vide P2) but that twoof the members, namely, Samaraweera and Banks, had tendered theirresignations, and to fill the resulting vacancies the respondent and oneMr. Wijeratne were appointed on 31st March, 1950. Although theBoard had been constituted and been in existence for some time, theBoard does not appear to have functioned till, if at all, after the appoint-ment of a Secretary to the Board on 23rd July, 1951.(Vide Rl). The
first intimation to the public in terms of regulation 3 of the Regulations
488
NAGALINGAM S.P.J.—Fonseka v. Sellathurai
framed under the Rent Restriction Act of the address to which appli-cations should be sent and of the place where the sittings of the Boardwould be held was given by publication in the Government Gazette on24th August, 1951. (Vide R2). That the respondent did not at anytime function as a member of the Board and that he did not at anytime receive any remuneration is not questioned by the petitioner.
On 25th November, 1950, as a result of a poll taken, the respondentwas declared elected as member for Ward No. 7 of the Council. Fourdays later, namely, on 29th November, 1950, by letter P3, the respondentwrote to the Commissioner of Local Government as follows :—
Dear Sir,
“ Rent Restriction Board, Hatton.
This is to inform you that I tender my resignation of the memberof the above Board.
Yours faithfully,
Sgd.
On these facts the petitioner contends that at the date of election therespondent was in fact the holder of a public office under the Crownand was therefore disqualified from being elected, while the respondentasserts the contrary.
The first point that arises for consideration is whether the intimationPI by the Permanent Secretary to the respondent that he had beenappointed a member of the Rent Control Board, without the consent ofthe respondent having been obtained prior thereto and without at leasta signification by the respondent subsequent thereto that he was willingto accept office, does in fact amount to his being duly appointed to office,so as to make him the holder thereof.
I do not think that where a person receives an appointment whichhe is willing to accept it is essential to the validity of it that the recipientshould communicate his acceptance. Mr. Perera, however, argued thatalthough no communication may be necessary, nevertheless, thereshould be what he called an overt assent as opposed to a secret mentalresolution to accept the office. Now, an overt assent can mean nothingless than a manifestation of the assent which would necessarily thenbecome overt. But the question is : To whom should the fact of assentbe manifested ? If the manifestation is to have any value at all, itmust be to the appointing authority or to some person who would legallybe entitled to take notice of such asseDt. If so, it would then be equi-valent to a communication of acceptance. The mere manifestation ofacceptance to one’s friends or relations cannot be deemed to be a mani-festation from which any legal consequence could flow, because sucha manifestation is analagous to a nudum pactum, so that it seems to methat when Mr. Perera used the term “ overt assent ” he was reallyputting forward the contention he had given up by conceding that nocommunication of assent was necessary.
WAOAT.TWflAM S.P.J.—Fonscka v. Sellathurai
489
*
Mr. Perera reinforced his argument by calling to his aid by way ofillustration the case of a Minister who, to get rid of his political opponent,say from membership of Parliament, appoints him a member of thePent Control Board without obtaining his assent. In such a case inview of the facts which are assumed, there cannot be the slightest doubtas to how a Court of Law would determine the issue. But those arenot the facts in this case. I see no difficulty in holding that neithera communication of assent nor an overt assent or manifestation ofassent is at all necessary for an appointment to be effective. But therecan be no doubt that there should be assent on the part of the appointee.The assent need not necessarily be signified, as I have already indicated,by express intimation or manifestation. If assent could be implied,or inferred from attendant circumstances and particularly from the conductof the appointee, the appointment then becomes effective.
Silence in certain circumstances may lead to the undoubted inferencethat the appointee had accepted the appointment, especially wherethe silence continues over a considerable period of time. Affirmativeconduct, too, such as the entering upon and exercising the functions ofoffice without intimation of assent would, again, lead to the sameinference. So that, for a proper appraisement of the question involved,investigation should be made along lines which would either countenanceor negative the view that there was implied assent by the respondentto his appointment.
Mr. Weerasooriya urged that a person in the position of the re-spondent, who is a Proctor and who would ordinarily be expected toknow the resulting implications of his own conduct, would have beenthe first person, if he was not willing to accept appointment, to havewritten in and informed either the Permanent Secretary or the Com-missioner of Local Government that he did not wish to take office, andin the absence of any such action on his part the*fair and proper inferenceto be drawn is that he was willing to assume the office and exercise thefunctions pertaining to it if and when called upon ; for not till an appli-cation was received for adjudication by the Board would the Boarditself be called upon to function, and till such event took place a memberhimself could not exercise the functions of his office. It is a slightcircumstance, but one which cannot entirely be ignored, that if theposition of the respondent was that he was not willing to take appoint-ment, then there would have been a vacancy on the Board which theMinister would have filled in accordance with the provisions of the law.But by the respondent not conveying to the proper authority that hewas declining the appointment, he certainly lulled the Minister intothe belief that there was no vacancy on the Board, for otherwise sucha vacancy would not have been allowed to remain-unfilled. I am notprepared to say that this contention does not carry conviction, but itis unnecessary for me to express any final opinion in regard to it in thiscase, for there are other factors which are more conclusive.
Mr. Weerasooriya next contended that there was an act of anaffirmative character on the part of the respondent which showedunmistakably and clearly that he had assented to the appointment
490
NAGALINGAM S.P.T.—Fans ska v. Sellathurai
and liad considered himself the holder of the office. He depends uponthe letter of resignation, P3, written by the respondent to the Com-missioner of Local Government. The terms of the letter are quiteunambiguous and, construed normally, does and can only mean thatthe respondent, who had been and was up to the date of the letter amember of the Board, was resigning his membership of the Board fromthat date.
To escape from this dilemma Mr. Perera presented an argument based,on the variation in the description of the Board by the appellant and.by the appointing authority. It is true that when the respondentrefers to his resignation from the Board he uses the phrase “ aboveBoard ” meaning “ Rent Restriction Board, Hatton ” which is theheading in his letter ; but as the resignation relates to the appointmentmade by letter PI by which the respondent was appointed to serve onthe Rent Control Board, it must be held that the term “ Rent RestrictionBoard ” has been used by the appellant as a synonym for the term“ Rent Control Board ” used in the letter of appointment and in theStatute. I cannot accept the contention that the respondent intendedby using the term “ Rent Restriction Board ” to convey the idea thathe had in his mind some other Board than the Rent Control Board,referred to in the letter PI, for there is no evidence that the respondentat that date he wrote the letter was holding any other appointmentwhich could properly be designated as one on a Rent Restriction Board.If this is the meaning to be attached to his letter P3, I do not think itcan be gainsaid that there is a clear implication that the respondenthad regarded himself as having assented to his appointment as a memberof the Rent Restriction Board on receipt by him of the letter of appoint-ment PI, so that there is sufficient material upon which one can arriveat the view that the respondent had accepted appointment.
Mr. Perera, however, put forward a second argument that the letter-P3 must be regarded as having been written, by the respondent exabundanti cautela in order to apprise the Commissioner of Local Govern-ment that he never accepted office, but if this were his intention, he.certainly could have used adequate language to convey his meaning,but the language used by him in the letter P3 is far removed from anysuch meaning and leads to a contrary inference. I am satisfied that-the respondent assented to the appointment on receipt of letter PI,and his subsequent silence then becomes easily explicable on this basis-
It was next argued on behalf of the respondent that, assuming thatthere was an effective appointment, till the appointment of a Secretarywas made and the notification of the place where the Board woulc^ holdits sittings and of an address to which applications could be sent was.made, as required by Regulation 3 of the Regulations already referredto, it could not be said that there was a Board in existence or, at anyrate, a Board that could function. The appointment of a Secretaryand the notification to the public were made, as set out earlier, subsequentto the date when the respondent wrote in his letter P3 resigning his.office.
NAG A LING A M S.PJ.—JFonse/ca v. ScUathurai
491
That the appointment of a Secretary is not a sine qua non for thefunctioning of a Board would seem to follow from the language usedin section 20 (7) of the Rent Restriction Act which says that all docu-ments, notices and summonses issued under the hand of the Chairmanof the Board or the Secretary thereto if appointed in accordance with theRegulations made in that behalf shall be deemed to be issued by the Board.There is no provision in the Regulations which necessitates the appoint-ment of a Secretary, and the words “ if appointed ” clearly indicatethat there may be cases where no appointment may be made. Thatthis is so is made clearer by the provisions to be found in the Regulationsthemselves. For instance, Regulation 6 prescribes that the Chairman'or the Secretary shall acknowledge receipt of the applications receivedby the Board. A similar collocation of words is used in Regulation 7.There does not appear to be any provision which requires a particularact to be done by a Secretary to the exclusion of the Chairman, so thatso long a:, a Chairman has been appointed to the Board, the Board caneffectively function although there may be no Secretary.
The argument based on notification being necessary in regard to theaddress to which applications could be sent and the place where themeetings of the Board would be held is equally unsustainable ; there isnothing either in the Ordinance or the Regulations which indicatesthat the Board cannot function till such notification is given or thatmembers of the public cannot address applications to the Chairman ofthe Board till such notification appears. The notification contemplatedis to give publicity to the location of the office of the Board and of theaddress to which applications may be sent with a view to assist themembers of the public by dissemination of the necessary information.But to say that till the notification is made the Board cannot functionis a non sequitur.
I do not therefore think that the contention based on the absenceof an appointment of a Secretary or the notification of an address orthe venue of meetings is entitled to prevail.
Yet another argument was made use of by reference to the word“panel” that was used in the letter of appointment PI. It was said'that the term “ panel ” had reference to the provisions of section 11 ofthe Rent Restriction Ordinance No. 60 of 1942 under which there wasprovision for the establishment of a Rent Assessment Board, the con-stitution of which provided inter alia for the selection of three personafrom a panel of seven persons appointed by the Minister, and that theappointment PI had rightly or wrongly been made .under that Ordinance.There is, however, in the letter of appointment PI express reference tosection 19 (2) of the Rent Restriction Act No. 29 of 1948 and, nnlaqigthe tferm “ panel ”, which is not used in the Act, has some connotationwhich conflicts with the other terms of the letter P”l, there is no compel-ling reason to hold that the appointment was made under OrdinanceNo. 60 of 1942 and not under Act No. 29 of 1948.
The term “ panel ” originally meant a piece of doth or pad put underthe saddle of a horse, and latterly, in law, it came to mean the strip ofparchment on which the Sheriff inserted the names of the jurors and.
492
NAGAX.XNGAM S.P.J.—Fonseka v. Sellathurai
which, he annexed to the writ. The meaning that gained currencythereafter was that the term merely meant a list of persons ; sometimesthe list may be of a large number of persons from which for a particularpurpose a smaller group may be elected ; in other cases the entire bodyon the list may be included in the term. A “ panel of jurors ” meansnot only the list of persons who have been summoned to serve on thejury but the jury selected to try any particular case itself. In recentyears the term “ panel doctor ” has come into existence, which meansnothing more than a doctor whose name is placed on a list of doctorswho are willing to attend on patients in accordance with the NationalHealth Insurance Acts. Correspondingly, there are “ panel patients ”who are merely patients on the list of a doctor at whose hands they areentitled to receive treatment. *
The argument therefore that there was something inappropriate inthe use of the word “ panel ” in PI leading to a necessary inferencethat the appointment was not intended to be made under the Act of1948 but under the Ordinance of 1942 cannot be sustained. I am ofopinion that there is nothing in the terms of the letter PI from whichit could be said that the appointment of the respondent was not madeunder the Act of 1948, as it purports to be. This argument too fail.-.
Another point urged was that even though the appointment mademay be considered to be effective from the date it was made, neverthelessit could not be said that the respondent was the holder of the office asthere was a distinction to be drawn between an appointment to andthe holding of an office. This argument was deduced from an analogyfounded upon the case of King v. Beer 1 where under the provisions ofsection 32 of the English Bankruptcy Act of 1883 one disqualificationof a person adjuged to be bankrupt is stated to consist in “ being electedto. or holding, or exercising, the office of Mayor,alderman, or councillors ”.It is easy to see that a man may be elected a Mayor but not hold officeif, for instance, he does not take the oaths of allegiance if it be necessaryto do so or attend meetings of the Council. But different considerationswould apply where nothing need be done after election. In such a casecan it be said that the person elected a Mayor, alderman or councilloris not holding the office 1 I do not think so. In fact in the very casecited Lord Alverstone C.J. expresses the opinion that the word “ holding ”is equivalent to the word “ being ”, and in this sense I do not thinkit could be said that once the respondent was appointed and he waswilling to accept the appointment he was thereafter not holding orfilling the office of Member of the Rent Control Board. If he was notholding or filling the office, a vacancy would have resulted ; and itmust not be lost sight of that under section 19 (6) of the Rent RestrictionAct there is express provision that every person appointed to" be amember of the Board shall unless he earlier vacates the office by resignationor by revocation of the appointment hold office for a period of three yearscommencing on the date of his appointment. The words to be speciallyemphasised are “ hold office ”, so that on appointment of the respondentto the office which he was willing to accept, he became the holder of
(1903) 2 K. B. 693.
SWAN J.—Muthuretty v. The Queen
493
th® office for a period of three years, subject to the*, contingencies setout in section 19 (6). There is nothing in the enactment which wouldwarrant the contention that in order to hold office one should functionas such. In fact one can visualise a case where, if no disputes underthe Act were submitted to the Board, it would never be called upon toexercise its functions, but there can be little doubt that even in sucha case each of the members would continue to hold and fill the office towhich he was appointed. I do not therefore think that the circumstancesrelied upon by the respondent that he neither acted as a member norreceived remuneration is of any avail to him.
In the result I find that the respondent was the holder of a publicoffice under the Crown of Ceylon at the date he was declared electeda member. The election is therefore null and void, and the respondentwas and is disqualified from sitting as a member or taking part in thedeliberations of the Council.'
The petitioner will be entitled to the costs of these proceedings.
Application allowed.
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