In re GUNATHILAKE

067-NLR-NLR-V-42-In-re-GUNATHILAKE.pdf


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KEUNEMAN J.—In re Gunathilake.
1941Present: Kenneman J.
In re GUNATHILAKE.
i
Application for a Writ of Quo Warranto.
Village Communities Ordinance (Cap. 198), s. 22—Failure to elect members—Mistake with regard to the date of meeting—Nomination by ExecutiveCommittee of Local Administration.
The words “ fail to elect ” in section 22 of the Village CommunitiesOrdinance must be interpreted to mean as “ do not electThey do not imply wilful failure.
The relevant words of the section are as follows: —
Where for any reason the voters of all or any of the wards of a villagearea fail … •. to elect any member on the date fixed for the
meeting or any adjourned meeting of the voters, for the purposes of ageneral election or a by-election it* shall be lawful for the ExecutiveCommittee to nominate such number of duly qualified persons as maybe necessary to constitute of complete the Village Committee.
fjl HIS was an application for a writ of quo-warranto.
H. W. Thambiah, for the petitioner.
R. C. de Fonseka, for respondents.
H. H. Basnayake, C.C., for Attorney-General on notice.
Cur. advr-vult.
March 25, 1941. Keuneman J.—
Both these applications were heard together and can be decidedtogether.
The facts are as follows : —
The petitioner is a resident of the pattu in question and is the sittingmember for one of the wards, and was a candidate for the office of Chair-man of the Committee in question.
The Assistant Government Agent, Matale, originally issued a noticeintimating that the election of members for four wards of the village areain respect of which there were contests would take place on May 9, 1940.
It may be noted that both the petitioner and Mr. Gunathilake, the Chair-man, had been elected to their respective wards without any contest.
No further notice issued from the Assistant Government Agent asregards the date, but about the 3rd or 4th of May the Headman made itknown that the election would be held on the 6th of May and not on the9th. It seems fairly clear that this was due to a mistake on the part ofthe officer appointed to act as Presiding Officer.
This officer arrived on the 6th of May and purported hold an electionof members to represent the four wards I have mentioned. It is clearthat these elections were invalid, as due notice had not been given and themistake was realized very early. On the 7th or 8th of May, the Headmanagain announced that the elections held on the 6th were invalid, and thatthe meeting would again be held on the 9th of May as originally notified.On the 9th of May, the candidates and their supporters arrived at the
KEUNEMAN J.—In re Gunathilake.
277
place of meeting, but no meeting was held apparently because the Pre-siding Officer did not arrive. It was then announced by the Headmanthat the elections held on the 6th May were invalid and that the AssistantGovernment Agent would fix another date for the meeting.
No other meeting was, however, notified, but the Executive Committeeof Local Administration purporting to act under section 22 of the VillageCommunities Ordinance (Cap. 198) nominated four members for thefour wards in question, one of these members being Mr. K. Punchirala,the respondent in the second application.
Thereafter, the first meeting of the Committee was held, and at thatmeeting the four persons so nominated were present and functioned asmembers. At this meeting, Mr. Gunathilake was elected Chairman by amajority of two votes, the defeated candidate being the petitioner.
These are the circumstances under which the applications are made.
Mr. Thambiah for the petitioner argues that the nomination by theExecutive Committee of Local Administration was bad, and that thesubsequent election of the Chairman was in consequence vitiated.
Section 22 of the Ordinance is as follows : —
“ Where, for any reason, the voters .of all or any of the wards of avillage area fail either to nominate any candidate on the date fixed forthe nomination of candidates, or to elect any member on the datefixed for the meeting or any adjourned meeting of the voters, forthe purposes of a general election or a bye-election, it shall be lawfulfor the Executive Committee to nominate such number of duly qualifiedpersons as may be necessary to constitute or to complete the VillageCommittee, as the case may be; and the Village Committee or themember or members so nominated shall be deemed, for all the purposesof this Ordinance, to have been duly elected ”.
Counsel for the petitioner argued that there was no failure on the partof the voters to elect on the 9th of May, as no opportunity was givento them to have the meeting, owing to the absence of the Presiding Officer.He urged that under section 14 (1) the election must be held at a meetingof the voters, and that under section 16 (1) the meeting must be presidedover by the Government Agent or by a person appointed by him. Hecontended that there was no wilful failure on the part of the voters toelect.
Mr. Basnayake for the Attorney-General contended that the word “ fail ”in this context did not imply wilful failure. He also emphasized thewords “ for any reason ” appearing in the section, and argued that thesewords covered a failure to elect under the circumstances arising in thiscase. Counsel further depended on the case of Rex v. Southwark BoroughCouncil
In this case the words “ failed to exercise their power ” were read asmeaning “ have not exercised their power ”, and not as implying that thenon-exercise of the power must be due to a neglect or default. 1
1 134 L. T. 623.
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KEUNEMAN J.—In re Gunatkilake.
Bankes L. J. acknowledged that the word “fail” may have differentmeanings having regard to the context in which that word is used. Buthe thought the meaning I have already indicated made the schemeworkable, and the other meaning would render it unworkable.
Scrutton L.J. dealt with the matter as follows : —
“I do not say that the word ‘fail’ can never include wilful default,but in this case where to read ‘ fail ’ simply as * not to exercise ’makes a workable scheme, and where to read in the words‘ wilful default ’ will mean that in every case it will have to bedecided by somebody whether it was wilful default, and it willnot be known who are the appointed members until that isdecided, I have no doubt that one must take the simple languageas it is and determine it.”
It may be noted in the case in question that a mistake was made notby the body which had power to nominate and was alleged to have failedto do so, but by the Town Clerk who summoned a meeting for the wrongdate.
On consideration of sections 14 and 16 of the Village CommunitiesOrdinance, I am unable to find that the Government Agent, who hasfixed the date of the election and given the required notice of not lessthan one month, has power to refix the date, though he has power undersection 16 (2) to adjourn a meeting once fixed.- In this case the Govern-ment Agent has not exercised his power of adjournment, and, accordingly,unless the Executive Committee can exercise the right of nomination,the four wards in question will not have any representatives during thecontinuance of this Committee. This is, at any rate, an undesirableresult, and will hamper the successful working of the Village Committee.
Further, on examination of the language of section 22, I am inclinedto interpret the words “ fail …. to elect ” as “ do not elect ”.It is to be noted that the section refers to a failure “ on the date fixedfor the meeting” and not to a failure at the meeting. The insertionof the words “ for any reason ” gives emphasis to this view. Thesewords, in my opinion, cover a situation such as the present, and I do notthink a wilful failure is contemplated. The members nominated underthe section are “ deemed, for all the purposes of the Ordinance, to havebeen duly elected ”. In this view, I think the scheme is workable.
It is a matter for the gravest regret that the mistake of the PresidingOfficer should deprive the voters of these four wards of their right toelect their representatives, and it must be hoped that a mistake of thiskind will never be repeated. But I do not think that can affect the legalinterpretation I have to give to the words of the section.
The applications fail and are dismissed, and the rules discharged withcosts.
Rule discharged.