015-NLR-NLR-V-48-JAMES-Petitioner-and-FERNANDO-Respondent.pdf
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NAGALINGAM A.J.—James v. Fernando.
1946Present: Nagalingam A. J.
JAMES, Petitioner, and FERNANDO, Respondent.
Application for Writ of Quo Warranto againstU. Subamanis Fernando.
Writ of quo warranto—Village Committee—Person holding contract with theCommittee—Disqualification to be elected member—No objection raisedon date of nomination—Effect of such failure—Village Committeeselected from time to time for the same area—Continuity of existence as asingle body—Malice and delay on part of applicant for writ—Quantumof proof necessary—Village Communities Ordinance, No. 60 of 1938(Cap. 198), ss. 13, 15 (3), 36.
The respondent was elected as member of a Village Committee thatwas to function from July 1, 1946. He had entered into a contract withthe Committee that was going out of office on June 30, 1946.
Held, that the contract operated as a disqualification within themeaning of section 13 of the Village Communities Ordinance, eventhough the respondent executed the contract before the date when hewas expected to assume or could have assumed office.
Per Nagalingam A.J.—“ To say that the Village Committees elected(for the same area) from time to time for definite periods are distinctand separate bodies and that the contract with one has no bearing inregard to the qualification necessary for election to a subsequent VillageCommittee is altogether erroneous ”.
Held, further, (i) that writ of quo xoarranto lay to set aside the electionof the respondent, although the fact of his disqualification had not beenurged before the Government Agent at the time of nomination ;
that the application for the writ could not be refused on theground of the petitioner’s malice unless it could be shown that themalice had its origin in something other than a desire to ensure a fair andproper election and amounted to vindictiveness arising from animosityengendered by extraneous circumstances ;
that a period of less than two months in making the applicationfor the writ did not constitute undue delay.
PPLICATION for a writ of quo warranto.
N. E. Weerasooria, K.C. (with him H. A. Koattegoda), for the petitioner.S. C. E. Rodrigo, for the respondent.
Cur. adv. vult.
December 19, 1946. Nagalingam A.J.—
This is an application for an information in the nature of a quo warrantocalling upon the respondent Suramanis Fernando to show by what righthe claimed to hold the office of member for Mahagama North Ward of theVillage Committee area of Gangaboda pattu.
NAGAL.INGAM A.J.—James v. Fernando-.
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The circumstances upon which the petitioner relies to found hisapplication are as follows:—On April 9, 1946, the Assistant Govern-ment Agent received nomination papers for election of members to theseveral wards of the Village Committee and the respondent was the onlycandidate nominated for the Mahagama North Ward and was thereforedeclared duly elected on that day. It is alleged by the petitioner thatthe respondent had entered into three separate contracts dated March 9,1946j April 24, 1946, and May 10, 1946, to repair certain edandas or foot-bridges across certain elas or water-courses within the area of the saidVillage Committee. On the date the respondent was nominated anddeclared duly elected the first contract, namely the one of March 9, 1946,was still subsisting and remained unexecuted. -The other two contracts,it will be noticed, are subsequent in date to that of his election.
The petitioner contends that as the respondent was interested in acontract with the Village Committee at the date of his nomination andelection, he was disqualified from being so nominated or elected by reasonof the provisions of section 13 of the Village Communities Ordinance,Cap. 198 (Ordinance No. 60 of 1938) which declares that every person ofeither sex who is entitled to vote at the election of members for any ofthe wards of the village area shall be deemed to be qualified for electionas member for any ward of that area if such person, inter alia, is noteither directly or indirectly except as a shareholder is an incorporatedcompany interested in any contract entered into by any person with theVillage Committee of that area. The petitioner also relies upon thefact that after the election of the respondent he was interested in theother two contracts and that by virtue of section 19 of the Ordinancethe respondent must be deemed to have vacated his seat, for the sectionprovides that any member of a Village Committee shall be deemed tovacate a seat ipso facto if he, inter alia, ceases to be qualified as requiredby section 13. These are the two grounds upon which the petitionerrests his case.
The respondent while not disputing that he had entered into thecontracts referred to, takes up the position that as his election was formembership of a new Village Committee that was to function from July1, 1946, his contract with the Village Committee that was going out ofoffice on June 30, 1946, does not operate as a disqualification within themeaning of either section 13 or 19 (a), especially as he had executed allhis contracts before the date when he was expected to assume or could!have assumed office. But he goes further and says that assuming thatthe petitioner’s objection is good he is entitled to resist the petitioner’sapplication upon three other grounds, (a) that no objection to hisnomination on the ground of his not having the necessary qualificationhaving been taken before the Assistant Government Agent on the dateof nomination, his alleged disqualification cannot be made the subject ofproceedings in this Court, (b) that the petitioner is actuated by malicein making this application, and (c) that there has been undue delay inpreferring this application.
To deal with the main contention, it is obvious that it is based upon a^fallacy, to say that the Village Committees elected from time to time
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NAGALINGAM AJ.—James v. Fernando.
for definite periods are distinct and separate bodies and that the contractwith one has no bearing in regard to the qualification necessary forelection to a subsequent Village Committee is altogether erroneous. Toput the argument of the respondent in another way, the argument is thatthere is no continuity of existence of a Village Committee, but that anew Village Committee comes into existence on the expiry of the periodfor which members were elected at the previous election. That aVillage Commiltee is a corporation with perpetual succession is expresslyenacted by section 36 of the Ordinance, and though the composition ofthe membership of a Village Committee may change from time to time,the Village Committee as a body has a continuous existence withoutlosing its individuality as a body at any period of time. The contracttherefore, was with the Village Committee of Gangaboda pattu whichwas the identical Village Committee both at the dates the variouscontracts were entered into and at the date when the respondent was tohave taken his seat as a member. It would, therefore, be correct to saythat the respondent was interested in the contract dated March 9, 1946.with the Village Committee at the date of his nomination, though thisobservation will not apply to the other two contracts which were enteredinto after the election of the respondent. Having regard to the contractof March, 1946, the respondent would therefore be one who could not bedeemed to have been qualified for election In view of the conclusion1 have reached on this question it is unnecessary for me to consider theobjection based upon section 19.
The next question for consideration is whether the respondent’scontention that the fact of his disqualification not having been urgedbefore the Assistant Government Agent, the petitioner cannot bepermitted to raise that objection in these proceedings is sound. Relianceis placed upon section 15 (3) which provides that nomination papersdelivered by or on behalf of a candidate should be scrutinised by theGovernment Agent who should also dispose of objections raised againstany candidate on the ground that he is not qualified to be elected ornominated. The section further provides that the decision of theGovernment Agent shall be final and conclusive.
Maartensz A.J. had occasion to consider the analogous provisions underthe earlier Ordinance No. 90 of 1924 in Karunaratne v. Government Agent,Western Province' and he arrived at the view that although the applicantwas present at the election and raised no objection he was not precludedfrom making an application to this Court. Wijeyewardene J. consideredsection 15 (3) of the present Ordinance in regard to a similar objectiontaken before him in the case of Mendis Appu v. Hendrick Singho’ andarrived at a similar result and expressed himself as in agreement with theviews expressed by Maartensz A.J. In view of these decisions it is un-necessary for me to enter upon a discussion of section 15 (3) in regardto the argument advanced before me as I respectfully agree with theviews expressed in these decisions.
It has, however, been argued by the respondent that while thedecision of Maartensz A.J. may be supported in view of the language
* (1945) 45 K. L. R. 126.
' (1930) 32 N. L. R. 169.
NAGAUNGAM A.J.—James v. Fernando.
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of the earlier Ordinance which sets out the disqualification of amember rather than the qualification as in the present Ordinance,his reasoning cannot be applied to the provisions of the presentOrdinance. It is pointed out that under Ordinance 9 of 1924, section 18declares that a person shall be disqualified to be elected unless he hadcertain qualification, but that under the present Ordinance a personis not declared to be disqualified but on the contrary is deemed to bequalified for election if he has certain qualifications; but it is to be notedthat in regard to a candidate who may be interested in a contract, thequalification is put in the negative, for it is provided that a person shallbe deemed to be qualified for election if such person is not interestedin a contract. This qualification may be expressed as a disqualificationby transposing the negative to the word “ qualified ” when it will readas “ a member shall be deemed to be disqualified if such person isinterested in any contract ”. I do not think that the difference inlanguage was intended to bring about an alteration in the law on thepoint. I therefore hold that it is competent to the petitioner to takethis objection to the respondent’s qualification in these proceedings.
The next point for determination is whether the allegation that thepetitioner is actuated by malice is a sufficient ground to refuse the reliefclaimed by the petitioner. Beyond the bare statement that the petitioneris actuated by malice there are no facts from which the Court can inferthat the petitioner is in point of fact actuated by malice. In one senseevery petitioner who impugns the election of a candidate may be said tobe actuated by malice or ill will towards the candidate but unless it can beshown that the malice has its origin in something other than a desire toensure a fair and proper election such as vindictiveness arising fromanimosity engendered by extraneous circumstances, the malice would beno ground for setting aside the election. Vide Rex v. Wakelin I do not think there is any substance, therefore, in this objectioneither.
There remains for consideration the next ground urged by therespondent, and that is that there has been undue delay in making theapplication. It was conceded that unless and until the respondent tookhis seat, an information in the nature of quo warranto would not lie.Vide Rex v. WhitewellRex v. Jones‘ and In re Armstrong The respon-dent took his seat on July 4, 1946, and the application was presentedwithin two months of that date. I do not think that a period of less thantwo months can be said to constitute undue delay in instituting theseproceedings.
In the result, I find that the respondent was disqualified at the date ofhis nomination and election and that he had no right to take his seat as amember of the Committee. I would therefore make the rule absoluteand declare the election of the respondent null and void. The respondentwill pay to the petitioner the costs of these proceedings.
Rule made absolute.
‘ 1 B. rt. A. D. 50.
* {1792) 5 Term Rep. S3
3 (1873) 28 Law T-mei 270.* (1856) 25 L. .1. Q. B. 238.