035-NLR-NLR-V-69-K.-P.-PERERA-Petitioner-and-H.-WICKRAMATUNGA-Respondent.pdf
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ABEYESUNBERE, J.—Perera v. Wickramatunga
1968 Present : Abeyesundere, J., and Siva Supramaniam, J.K.P. PERERA, Petitioner, and H. WICKRAMATUNGA,
Respondent
S. C. 39/66—Application for a Writ of Quo Warranto
Quo warranto—Election of Municipal Council member—Grounds of avoidance—Restriction to the grounds specified under statute law—Local AuthoritiesElections Ordinance, ss. 9, 10 (1)—Municipal Councils Ordinance, ss. 10,13—Civil Law Ordinance, s. 3—Courts Ordinance, s. 42—Ceylon (Parlia-mentary Elections) Order in Council, 1946, s. 77.
A writ of quo warranto does not lie to invalidate the election of a person as amember of the Colombo Municipal Council on the ground of general intimidationof voters or of general undue influence. Such corrupt or illegal practices arenot grounds of disqualification on which a Municipal election can be doclaredinvalid under the statute law in Ceylon.
Piyadasa v. Goonesinghe (42 N. L. R. 339) not followed.
A.PPLICATION for a writ of quo warranto.
R. S. R. Coomaraswamy, with Rajah Bandaranayake, S. S. Sahabanduand C. Chakradaran, for the Petitioner.
H. W. Jayewardene, Q.C., with R. R. Nalliah and N. Kasirajah, forthe Respondent.
October 10, 1966. Abeyesundere, J.—
The petitioner has applied for a Writ of Quo Warranto in order thatthis Court may determine the question whether the respondent, who waselected as a member of the Colombo Municipal Council on 18th December,1965, has the right to hold the office of Municipal Councillor. It is allegedby the petitioner that there was no free and fair election as there wasgeneral intimidation of the voters at the instance of the respondent,some voters were by undue influence induced to refrain from votingand the opposing candidate was by the use of force and intimidationprevented from holding meetings for the promotion of his candidatureand canvassing support for his election.
The Local Authorities Elections Ordinance (hereinafter sometimesreferred to as “ the Ordinance ”) is, as its long title indicates, an Ordin-ance to amend and consolidate the law relating to the election of membersof Local Authorities. A Municipal Council is one of the Local Authoritiesto which the Ordinance applies. Section 9 of the Ordinance specifiesthe disqualifications to be elected, or to sit or vote, as a member of anyLocal Authority. Section 10 (1) provides that where any member ofa Local Authority is, by reason of the operation of any of the provisions
ABEYESUNDERE, J.—Perera v. Wickramaiunga
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of Section 9, disqualified from sitting or voting as a member of suchauthority, his seat or office shall ipso facto become vacant. Section 11of the Ordinance makes it an offence for a person knowingly to act inthe office of member of any Local Authority after his seat or officebecomes vacant under Section 10 (1).
None of the grounds averred by the petitioner would under Section 9of the Ordinance have disqualified the respondent to be elected as amember of the Colombo Municipal Council or would under that Sectiondisqualify him to sit and vote as a member of such Council.
Section 10 of the Municipal Councils Ordinance specifies the term ofoffice of a Municipal Councillor elected at a general election. Section13 of that Ordinance provides for the vacation of the office of MunicipalCouncillor by the relinquishment or resignation of office or by the failureto attend 3 consecutive general meetings of the Council without leave ofthe Council first obtained. The petitioner does not aver that therespondent’s right to hold office as a member of the Colombo MunicipalCouncil is affected by Section 10 or Section 13 of the Municpial CouncilsOrdinance.
From the aforesaid provisions of statutory law in force in Ceylon it isreasonable to infer that if a person; who is not disqualified to be electedunder Section 9 of the Local Authorities Elections Ordinance, is electedas a member of a Municipal Council, he has the right to hold the office ofsuch member until that office is vacated by relinquishment or resignationof office or otherwise becomes vacant in accordance with the aforesaidstatutory provisions.
Mr. E. R. S. R. Coomaraswamy, who appeared for the petitioner,argued that the case of the petitioner was that the respondent was notduly elected. When Section 10 of the Municipal Councils Ordinancespecifies the term of office of a Councillor “ elected at a general election ”,it does so in respect of a Councillor elected in accordance with the pro-visions of the Local Authorities Elections Ordinance. The essentialprovisions relating to election contained in the latter Ordinance are thoserelating to nomination of candidates, the holding of a poll where thereis a contest, voting at the poll, and the determination of the result of thepoll by counting the votes cast at the poll. In the case before us, thefacts averred by the petitioner indicate that there was a nomination oi'candidates, that voters had gone to the poll and voted, that 3886 votershad voted at the poll, that the votes were duly counted, and that theresult of the poll was determined by reference to the majority ascertainedat the counting. It must, therefore, be presumed that the election of therespondent was in accordance with the provisions of the Local AuthoritiesElections Ordinance.
Mr. Coomaraswamy conceded that under the statute law of Ceylonthe averments of the petitioner afford no ground for declaring thatthe respondent has no right to hold office as a member of the ColomboMunicipal Council, but he argued that the question whether the res-pondent has a right to hold office as a member of the Colombo Municipal
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ABEYESUNDERE, J.—Perera v. Wictramatunga
Council must be determined by applying the English Law. He reliedon the judgment of Mr. Justice Soertsz in the case of Piyadasa v. Goone-singhe 1 in which it was held that a Writ of Quo Warranto lies to questionthe election of a person to a Municipal Council on the ground of generalundue influence and general bribery. In holding as aforesaid Mr. JusticeSoertsz relied on the English Common Law as general undue influenceand general bribery were not grounds on which according to the law' inCeylon the election of a member to a Municipal Council could be invali-dated. In 1S72 a statute (Victoria, Cap. CO) was passed by the Parliamentof England for “ the better prevention of corrupt practices at MunicipalElections ”. That statute displaced the Common Law' of Englandwhich permitted a Writ of Quo Warranto on the ground of corruptpractice at a Municip al election. Therefore, alter the aforesaid statutewas enacted, according to English Law no Writ of Quo Warranto lies toquestion the election of a member to a Municipal Council on the groundof general undue influence or general bribery. Consequently, with duedeference to the learned Judge aforesaid, we are of the view that the issueof a Writ of Quo Warranto in the aforesaid ease of Piyadasa v. Goone-singhe could not have been according to English Law. Mr. Coomara-swamv cited certain other cases in which the aforesaid judgment of Mr.Justice Soertsz was adopted with approval. The judgment in each ofthe aforesaid cases was that of a single Judge. We are therefore notbound by those judgments even under the convention of stare decisis.Mr. Coomaraswamy pleaded that the precedents created by this Court bythe judgments in the aforesaid cases should not be departed from. Ineed only quote Justinian’s dictum :“Non exemplis sed legibus judi-
candum est ”. The decisions of a Court must be based on law and noton precedents.
Section 3 of the Civil Law Ordinance provides that in all cases whichhave to be decided in Ceylon with respect to the law' of corporations,the law to be administered shall be the same as would be administeredin England in the like case, at the corresponding period, if such questionhad arisen or had to be decided in England, unless there is other provisionin any enactment in force in Ceylon. A Municipal Council is a statutorycorporation. The right of a person to hold office as a member of such aCouncil must therefore be determined by reference to the statute lawapplicable to such a Council. Mr. Coomaraswamy submitted thatSection 3 of the Civil Law Ordinance applied to a Municipal Council.Assuming that the said Section 3 applies to a Municipal Council, it isclear from the terms of that Section that, if there is statutory provisionapplicable to any matter relating to a Municipal Council, the Englishlaw will not apply to that matter. As indicated above there is statutoryprovision in Ceylon in regard to the disqualifications to be elected andto sit and vote as a member of a Municipal Council, the term of officeof such a member, and the vacation of such office by relinquishmentor resignation thereof or otherwise in accordance with these statutoryprovisions. The intention of the legislature, as evident from those
1 (1941) 42 N. L. R. 330.
SIVA SUPRAMANIAM, J.—Perera v. TYickramatunqa
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statutory provisions, appears to be that a person not disqualified tobe elected shall be entitled after election to hold the office of MunicipalCouncillor until his term of office expires or his office becomes vacantunder those statutory provisions. We cannot agree with Mr.Coomaraswamy when he seeks to introduce from the law of Englandfurther circumstances in which an elected member of a Municipal Councilmay be held to cease to hold office as such member.
The question we have to determine is whether a Writ of Quo Warrantolies on the averments made by the petitioner. As stated above, evenaccording to the law of England a Writ of Quo Warranto does not lieon such averments. We have also indicated that the petitioner’s aver-ments do not disclose a ground on which, under the statute law inCeylon, the respondent ceases to hold office as a member of the ColomboMunicipal Council.
For the aforesaid reasons, we hold that the averments of the petitionerdo not afford a legal ground for declaring on a Writ of Quo Warrantothat the respondent has no right to hold the office of member of theColombo Municipal Council to which he was elected at a general election.The Rule Nisi issued on the respondent is therefore dissolved.
The respondent is entitled to his taxed costs of the proceedings in thisCourt.
Siva Supramaniam, J.—
I agree. It was only in 1920 when Section 42 of the Courts OrdinanceNo. 1 of 1899 was amended by Ordinance No. 4 of 1920 that thisCourt was authorised to grant and issue, according to law, a mandatein the nature of a Writ of Quo Warranto. At that date, relief by wayof a Writ of Quo Warranto had ceased to be available under the EnglishCommon Law to invalidate a Municipal election on the ground that &corrupt or illegal practice such as general bribery or general undueinfluence or general intimidation had been committed in connectionwith the election. It will not be appropriate, therefore, to have recoureto the principles of English Common Law to determine the groundson which this Court should issue that writ in connection with theinvalidation of a Municipal election..
Soertsz J. at the conclusion of his Judgment in Piyadasa’s case»drewattention to the desirability of adopting mutatis mutandis the StateCouncil Order in Council in regard to elections to the State Councilto govern Municipal elections. That was in 1941. Nevertheless, whenthe Legislature enacted Ordinance No. 53 of 1946 (Cap. 262) toamend and consolidate the law relating to the election of members toLocal Bodies it did not include therein provisions to invalidate an electionon grounds of genera! corrupt or illegal practice. The omission is signi-ficant when one considers the provisions of Section 77 of the Ceylon
ISO
AL.LES, J.—Heratk v. Panditha
(Parliamentary Elections) Order-in-Council of 1946 in connection withthe election of members to Parliament. In these circumstanoes, thisCourt will be encroaching on the powers of the Legislature if it adds to thegrounds on which elections to Municipal Bodies can be invalidated.
Application dismissed■