114-NLR-NLR-V-71-M.-P.-NAVARATNAM-Petitioner-and-S.-K.-SABAPATHY-and-2-others-Respondents.pdf
566
NavarcUnam v. SabapcUhy
*
Present: Weeramantry, J., and Wijayatilake, J.
*M. P. NAVARATNAM, Petitioner, and
S. K. SAB APATHY and 2 others, Respondents
S. C. 395J68—Application for a Writ of Quo Warranto and for Certiorari
Village Councils Ordinance (Cap. 257), as amended by Ordinance No. 60 of 1961—Sections 17 (1) and 19 (2)—Mode of election of Chairman—Writ of quowarranto—Circumstances when it wiU not be granted.
(i) Section 19 (2) (b) of the Village Councils Ordinance reads as follows :— 1
'‘Where two or more candidates are proposed and seconded for election asChairman, the mode of election shall be either by open or secret votingaccording as the members present may by resolution determine
1 (1963) 65 N. L. R. 2932.
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WEEBAMANTRY, J.—Navarainam v. Sabapathy
Held, that the question whether the mode of electing the Chairman shouldbe by open or secret voting need not itself be decided by secret vote if a memberproposes that it should be so decided. The presiding officer of a meeting ought,ordinarily to be considered as being vested with a discretion to decide suchordinary matters of procedure as are not expressly provided for by statute orby rules governing the meeting.
(ii) At a meeting held to elect the Chairman of a Village Council in terms ofsection 19 (2) of the Village Councils Ordinance, the presiding officer, instead ofcalling the name of each member and asking him how he desired to vote, called' upon those in favour of the candidate contesting the first respondent to votefirst and thereafter called upon those in favour of the first respondent to vote.The voting body, however, was small, being sixteen in number.
Held, that, although there was a non-compliance with the requirements ofsection 19 (2) (c) of the Village Councils Ordinance, the irregularity complainedof did not-really affect the result of the election. In such a case, a writ ofquo warranto is not granted.
Held further, that an application for a writ of quo warranto is not generallygranted to quash proceedings in which the petitioner has acquiesced withoutraising any objections at the time.
jAiPPLICATION for a writ of (juo warranto and/or certiorari.
Chdlappah, for the Petitioner.
S. Sharvananda, with N. Tiruchelvam, for the 1st and 2nd Respondents.
V. C. Gunatilalca, Crown Counsel, for the 3rd Respondent.
Cur. adv. vult.
November 7, 1988, Weerama~ntry, J.—
By this petition the petitioner seeks to challenge the election of thefirst respondent as Chairman of the Kokuvil Village Council and theelection of the second respondent as its Vice Chairman.
These two councillors were elected to their respective offices at ameeting convened by the Assistant Commissioner of Local Government,the third respondent to this petition, in terms of section 17 (1) of theVillage Communities Ordinance (Cap. 257) as amended by section 7 of theVillage Communities (Amendment) Ordinance, No. 60 of 1961. Thejournal maintained by the third respondent in respect of this meeting,which was held on July 13th, 1968, has been produced before us at theinstance of the petitioner. It is common ground that the election of the
first respondent was by open and not by secret vote.
, • »
It would appear that when the name of the first respondent wasproposed for election as Chairman of this Council and duly seconded, aresolution was proposed by the second respondent that the mode ofelection should be by open vote. A contrary motion was moved byanother member that the mode of election should be by secret vote.
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WEERAMANTRY, J.—Navaratnam v. Sabapathy
According to the journal produced by the third respondent it would-appear further that after the proposals for open ballot and secret ballothad been made the member proposing the secret ballot stressed that thedecision on this question should itself be by secret ballot.
There is variation between the journal maintained by the thirdrespondent in regard to this matter and the contention of the petitionerwhose position it is that in fact the member proposing a secret ballothad not merely stressed the importance of secret ballot but had infact proposed that the manner of election should be decided upon bysecret ballot.
It is not necessary to determine this conflict of versions in view of thedecision we have arrived at in regard to. the question whether secretballot was necessary in law in order to decide whether the actual electionshould take place by secret ballot or by open vote. However, it isnecessary to point out that we are not entirely satisfied with themanner in which the third respondent has maintained his journal andthat, as we shall remark later, there has been no strict compliancewith the requirements of law in his conduct of the meeting.
The first matter of complaint on the part of the petitioner is that thedecision to permit the election to take place by open vote should itselfhave been taken by secret ballot, and was not so taken.
Section 19 (2) (6) of the Village Communities Ordinance provides thatwhere two or more candidates are proposed and seconded for election asChairman the mode of election shall be either by open or secret votingaccording as the members present may by resolution determine.
There are various averments in the petition suggesting that certainmembers had been subjected to some form of undue pressure by the.supporters of the first respondent and had been kept in a group from thedate of their election to office till the date of the meeting and in fact hadbeen brought in a body ! c- the meeting hall just prior to the commencementof the meeting, so that they had thus been prevented from exercisinga free vote. These averments. are made with a view to indicatingthat had the question of the manner of voting been decided bysecret ballot these persons who had been thus subjected to unduepressure may well have voted differently and may in fact have favoureda secret vote. It should also be observed that the respondents denythese averments.
Although learned Counsel for the petitioner has been unable to citeany principle from the law relating to meetings indicating that where anoption is given to a meeting to decide a matter by open or by secret votesuch decision should itself be taken by secret vote, he relies on thecircumstances set out in the preceding paragraph as indicating thatin the circumstances of this case such a procedure should have beenresorted to.
WEERAMANTRY, J.—Navaratnam v. Sabapaihy
669
However we find the contention put forward on behalf of the petitionerto be unsustainable. Before it is decided that the decision on the natureof the vote should itself be by secret ballot, there would have to be aprior decision as to how such a decision in its turn ought to be reached, andthis process may well go on ad infinitum. Furthermore where a statutegives a body of persons the option of deciding whether they shall voteopenly or secretly, the decision in regard to their manner of voting oughtpresumably be taken in the normal way, that is by open vote, unlessthe statute or other rule applicable otherwise expressly provides. Wemay also add that the Chairman or President . of a meeting oughtordinarily to be considered as being vested with a discretion to decidesuch ordinary matters of procedure as are not expressly provided for bystatute or by rules governing the meeting and we have ho reason tothink that the discretion of the presiding officer in regard to the mannerin which the decision on the manner of voting should be reached wasexercised wrongly or mala fide.
In all the circumstances we therefore find ourselves quite unable touphold the contention of the petitioner that the decision whether votingshould be open or secret should itself have been taken upon a secretvote.
I pass now .to the second ground urged on behalf of the petitioner,namely, that the presiding officer is required in terms of section 19 (2) (c)to take the votes at the actual election by calling the name of eachmember present and asking him how he desires to vote and recording the •votes accordingly.
The journal of the third respondent shows that at the election he calledupon those in favour of the candidate contesting the first respondent to 'vote first and thereafter called upon those in favour of the first respondentto vote. This procedure is clearly not in conformity with the imperativerequirements of section 19 (2) (c), for the legislature has quite clearlyspecified that the presiding officer shall take the votes by calling the nameof each member present and asking him how he desires to vote. It isnot difficult to visualise cases, particularly in large assemblies, wherevoters whose minds are not firmly decided may be swayed by the temperof the house and may well be dissuaded from voting for a candidateby a total lack of support for him in the house or be persuaded tovote for him by the fact that he apparently enjoys an overwhelmingmajority.
Tn t.bia connection we must observe that the affidavit filed by the thirdrespondent though purporting to be in amplification of his journal doesin fact contradict the journal in regard to the manner in which the votingtook place, for in the affidavit he states that the election of the Chairmanwas decided by open voting, and that he took the votes of the memberspresent by calling the namemember present and ashing him how
570WEERAMANTRY, J.—Navaratnam v. SabapcUhy
he desired to vote. This would seem to be contradicted by his journalwherein he states that he called upon those in favour of the othercandidate to vote first.
It is very important that public officers conducting statutory duties inthis way should adhere strictly to the requirements of the law in regard tothe manner in which those duties are discharged and further that wherea record is required to be kept in regard to their acts there should bescrupulous accuracy in the keeping of that record.
We are satisfied that in the present instance there has been anon-compliance with the requirements of section 19 (2) (c) and the nextquestion we have to determine is whether this non-compliance by. itselfmerits the interference of this Court through the extraordinary remedyof a Writ.
The governing principle in regard to such matters would appear to bethat the extraordinary jurisdiction of this Court cannot ordinarily beinvoked in order to set aside election to an office unless the irregularitycomplained of is such as may be expected to affect the result in question.It is relevant to refer at this point to the case of Jayasooria v. de Silva1where it was held that this Court would not in the absence of bad faithgrant a Writ of Quo Warranto where the irregularity complained of didnot really affect the result of the election. This judgment was given inreliance of the judgment of Blackburn, J. in Bex v. Ward *. So alsoHalsbury, in reliance on the case of Blackburn v. Ward 8 states the law in’terms that the Court would refuse to disturb the peace and quiet of acorporation where there has been an irregularity in election to officewhich was without any material result or which could not be shown tohave been productive of harm.4
In the present case there is no basis on which we can say that the non-compliance with the statutory provision referred to has materiallyaffected the result. The voting body was small, being sixteen in number,and the division was such that no member is likely to have been swayedby any appearance of overwhelming support or lack of it in relation toany particular candidate. Without any more affirmative materialbefore us we cannot therefore think that the result would in any wayhave been affected in this particular case had the voting been takenstrictly as prescribed by statute.
The petitioner further attacks the election of the second respondent onthe basis that such election took place under the chairmanship of thefirst respondent and that the first respondent’s election being defectivethe subsequent election held under his chairmanship was itself bad.Since, for the reasons we have indicated, we are not inclined to uphold
1 (1940) 41 N. L. R. 510.• (1873) L. R. 8 Q. B. 210.
* (1873) L. R. 8 Q. B. 210.^*9labury, 3rd ed., Vol. II, p. 149.
Mvthulingam v. Inspector of Police, Chunnakam
071
tiie petitioner's contention that the first respondent's election is bad, itfollows that the validity of the second respondent's election remainsunaffected.
We most also advert to the circumstance that the name of the secondrespondent was in fact proposed by the petitioner for the office of ViceChairman and that the petitioner by his acquiescence in all theseproceedings and lack of objection thereto at the time, has in any eventdeprived himself of the right to urge the irregularities he now complainsof as a ground of objection to these elections. In Jayasooria v. deSilva,1 already referred to, it was pointed out that a voter who hasacquiesced in the procedure adopted and comes forward thereafter“ insisting upon the letter of the law, straining at a gnat so to speak ”will not find a Court of law too ready to exercise in his favour adiscretion vested in it.
For the reasons already enumerated the petitioner’s application mustfail and is dismissed with costs.
WuAYATHiAKE, J.—I agree.
Application dismissed.