066-NLR-NLR-V-63-M.-D.-CHANDRASENA-and-two-others-Petitioners-and-S.-F.-DE-SILVA-Director-of-E.pdf
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Ohandrasena v. de Silva
Present : T. S. Fernando, J.
M.D. CHANDRASENA and two others, Petitioners, and S. F.
DE SILVA (Director of Education), Respondent
S. C. 541—Application for a mandate in the nature of a Writ of
Quo Warranto
Quo warranto—Proof of usurpation of public office necessary—Meaning of term “publicoffice"—Manager of an unaided school—Does not hold public office—Education{Amendment) Ordinance No. 26 of 1947, s. 15—Assisted Schools and TrainingColleges {Special Provisions) Act, No. 5 of 1960, ss. 5, 6.
A writ of quo warranto does not lie against a person usurping an office whichis not of a public nature. Accordingly, it does not lie against the Director ofEducation if he purports to exercise the functions of manager of an unaidedschool contemplated in section 5 of the Assisted Schools and Training Colleges(Special Provisions) Act, No. 5 of 1960.
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T- 8. FERNANDO, J.—Chandrasena v. de Silva
_/_PPLIC ATI ON for a writ of quo warranto on the Director ofEducation.
H. V. Perera, Q.C., with E. B. Wikramanayake, Q.C., O. T. Samara-unckreme and W. T. P. Qoonetilleke, for the petitioners.
V. Tennekoon, Crown Counsel, with B. G. F. Jayaratne and H. L.de Silva, Crown Counsel, for the respondent.
Cur. adv. wit.
August 21, 1961. T. S. Fernanoo, J.—
The petitioners who claim to be members of the General Committeeof the Buddhist Theosophical Society Limited, said to be the proprietorof Ananda College and Dharmaraja College, two schools conducted atColombo and Kandy respectively, allege in their petition that the res-pondent who is the Director of Education has, as from 1st December1960, without any authority or warrant in law purported to exercise thepowers, duties and functions of manager of the said schools and hasthereby unlawfully usurped the office of manager of the said schools.They therefore claim to be entitled to apply to this Court for the issueof a mandate in the nature of a Writ of Quo Warranto on the respondent.
Notice having issued from this Court on the respondent after anex-parte hearing of argument on behalf of the petitioners, a preliminaryobjection was taken before me on behalf of the respondent that theoffice the respondent is alleged to have usurped is that of manager of anunaided school, and that such an office is not a public office.
It is not disputed that both these Colleges were assisted schools withinthe meaning of the Education Ordinance, No. 31 of 1939, as amendedby the Education (Amendment) Ordinance, No. 26 cf 1947. OrdinanceNo. 26 of 1947—vide section 15—defines an unaided school as a schoolwhich is not a Government school or an assisted school. The AssistedSchools and Training Colleges (Special Provisions) Act, No. 5 of 1960which came into force on 17th November 1960 made provision for theappointment of the Director of Education as the manager of everyassisted school other than a school which the proprietor has electedbefore 1st December 1960 to administer as an unaided school. Thepetitioners contend that the proprietor of the two schools in question,viz. The Buddhist Theosophical Society Limited, has elected in termsof section 5 of Act No. 5 of 1960 to administer the schools as unaidedschools, and that therefore as from 1st December 1960 these two schoolsceased to be assisted schools and had to be administered as unaidedschools. Learned Crown Counsel who appears for the respondent, while
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T. S. FERNANDO, J.—Chandrasena v. de Silva
not admitting that the schools are now unaided schools, has urged that,irrespective of the correctness of this contention, no writ as prayed forby the petitioners lies against the respondent-.
In order to ascertain in what circumstances and under what condi-tions the Supreme Court may be moved for a prerogative writ we haveto resort to the relevant rules of English common law—see Nakkuda Ativ. Jayaraine 1. The jurisdiction of the Court in respect of the issue of theprerogative writ of Quo Warranto against persons usurping office islimited to the case of persons who have assumed the powers or performedthe duties and functions of an office of a public nature—see Hals bury’sLaws of England (Simonds ed.), Vol. 11, page 146. On behalf of therespondent it has been pointed out that the statute nowhere refers toa manager of an unaided school, and that section 6 of Act No. 5 of 1960which imposes certain dut ies in respect of the administration of an unaidedschool has imposed those duties not on any manager of such a school,but on the proprietor thereof. The proprietor of an unaided schoolmay, for his own purposes or for convenience of administration, employa person as manager, but where a person is so employed he does not inmy opinion become the holder of an offit e of a public nature. He per-forms private, as distinguished from public, functions. Even if theduties now imposed by section 6 on the proprietor had been imposedby th-3 statute on a person employed by the proprietor as the managerof the unaided school, the mere requirement that certain things shallbe done and certain other things shall not be done by the person desig-nated does not suffice, in my opinion, to constitute that person the holderof an office of a public nature. Moreover, under the English commonlaw an information in the nature of a quo warranto lay and now aninjunction restraining a person from acting wit hout authority in respectof any particular office lies only if that office satisfies ceitain conditions.The office must be held under the Crown or have been created by theCrown, either by charter alone or by statute. Halsbury’s Laws ofEngland (Simonds ed.) Vol. 11, page 146 (supra). I have already indi-cated above that the office of manager of an unaided school is not onecreated by statute.
For the reasons indicated shortly above, the preliminary objectionraised on behalf of the respondent is entitled to succeed. I would upholdit and discharge the rule nisi with costs, limited to a sum of Es. 315/-payable by the petitioners.
HuLe discharged.
1 (1950) 51 N. L. B. 461.