MADANAYAKE v. SCHRADER et al

083-NLR-NLR-V-29-MADANAYAKE-v.-SCHRADER-et-al.pdf


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Present: Dalton J.
In the Matter of an Application for a Writ of Mandamuson the Government Agent, Southern Province.
MADANAYAKE v. SCHRADER et al.
Mandamus—Validity of Village Committeeelections—Propriety ' of
motive—Unreasonable delay—Ordinance No. 9 of 1924.
The Supreme Court may refuse to grant a writ of mandamuseither where there has been delay on the part of the applicant orwhere the Court is not convinced of the propriety of his motives.
Where an" application for a mandamus was made to test thevalidity of the election of a Village Committee eight months afterthe date of the election,—
Held, that the application was not made within a reasonable time.
A
:N application for a writ of mandamus on the GovernmentAgent of the Southern Province to hold a meeting of the
inhabitants of Akmeemana in the Galle District, under the provisionsof Ordinance No. 9 of 1924, for the purpose of electing a new VillageCommittee.
Weeraratne, in support.—The meeting held is invalid, and thereforethe Committee functioning is not duly elected. The provisions ofthe Ordinance No. 9 of 1924 have not been duly complied with.The requirements of the Ordinance are peremptory, and if thoserequirements are not observed the election is void. Vide Applicationfor Writ on Government Agent, Northern Province.1
Section 22 of the Ordinance requires a meeting for the election ofa Committee to be summoned within three months of the dissolutionof the existing Committee.
H, V. Perera (with M. C. Abeyewardene), for the respondents.—The remedy sought is misconceived. There is a Committee alreadyfunctioning. The office is de facto full. The proper applicationshould therefore have been for a writ of quo warranto—vide UkkiiBanda v. Government Agent, Southern Province.2 A writ of manda-mus is a high prerogative writ. It cannot be applied for as a matterof right. The granting of it is purely a matter of discretion. TheCourt will therefore scrutinize the motive and the circumstancesunderlying this application. Hals.t v61, Xp. 78.
The applicant’s motives are clearly open to question. He is merelya substitute for Ukku Banda, whose application' to this Court wasrefused—vide Shortt on Mandamus, p. 251. The costs of the1 (1927) 28 N. L. R. 323.a 29 N. L. R. IBS.
IBM
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1988 previous application have not yet been paid. The bona tides of theMadanayake applicant are questionable. He took part in the election whichhe seeks to set aside. In short, he is acting in collusion with UkkuSchrader jjan(ja The application has been unduly delayed. Very nearly sixmonths were allowed to elapse since the election, i.e., about one-sixthof the life of the Committee. Meantime important works havebeen undertaken and are in progress. The granting of the writ-prayed for will disorganize everything already attempted.
Weeraratne, in reply.—The remedy is not misconceived. Manda-mus is the proper remedy, inasmuch as the election is merelycolourable, if not void .
Vide Regina v. Mayor* of Leeds1; Rex v. Mayor of Oxford *
February 7, 1928. Dalton J.—
The petitioner, Carunasena Madanayake, by petition filed onNovember 21, 1927 applied to this Court for a writ of mandamuson the Government Agent of the Southern Province to hold ameeting of the inhabitants of the subdivision of Akmeemana inthe Galle District, under the provisions of Ordinance No. 9 of 1924,for the purpose of electing a new Village Committee. The matterfirst came before this Court on November 23, when this Court(Schneider J.) allowed notice to issue on the Government Agent.By its order of that date it was also directed that notice of theapplication be issued to members of the “ existing Committee,whose names were to be supplied. That has now been dohe, Counselappearing for the Government Agent, and also for the 3rd, 5th, 8th,9th, 10th, 11th, 12th, 13th, and 14th respondents, who resist theapplication. The 4th, 6th, and 7th respondents appear and consentto the order asked for.
The facts disclosed in the petition are that the petitioner is aninhabitant of Akmeemana. A meeting was held there on March 10by the Government Agent, on which day a Committee was elected,to come into office on July 1, 1927. Petitioner states that electionis invalid, and on August 1 he and sixteen others requisitioned theGovernment Agent to call a meeting of inhabitants to elect a newCommittee. By letter of August 4 the Government Agent informedone Ukku Banda that a meeting had been held and a Committeehad already been appointed. The next step was the filing of thispetition on November 21 to compel the Government Agent to holdthe meeting.
It is also agreed that Ukku Banda had sought, by an informationin the nature of quo warranto, a declaration that the election of thepresent respondents, other than the Government Agent, was invalidand that it be set aside, and on July 26 this Court discharged the
1 11 Ad. & E. 512.2 6 Ad. & E. 349.
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ml» on the ground that the parties had not been in possession ofoffice, Ukku Banda being directed to pay the costs of nine of therespondents.
Tn the proceedings before me respondents have filed an affidavitalleging that petitioner was, to the best of their recollection, presentand took part in the proceedings by voting at the meeting of March10, that he has been instigated by Ukku Banda to commence theseproceedings, and that their costs in the earlier proceedings havenot yet been paid. There is also evidence, which is uncontested,to show that the Committee has functioned since July 1, held severalmeetings, collected taxes, appropriated fine moneys received fromthe Village Tribunal, obtained grants from' the Government,expended considerable sums on village works and on the payment ofsalaries, and entered into a contract for the construction of a bridge.Petitioner, by affidavit, denies he was present at the meeting onMarch 10, but that he only became aware of it two days later.He denies he has been instigated by Ukku Banda to commencethese proceedings. His Counsel wished to make out he had noassociation with Ukku Banda at all, but unfortunately the letter ofAugust 4 from the Government Agent, which he sets out in fullin his petition and which supplies the foundation for these proceed-ings by him, is actually addressed to Ukku Banda. That givesveiy strong support to the allegation of the respondents respectingthe motives of the petitioner, and I am not satisfied that petitioneris acting bona fide.
Mr. Fonseka, for the Government Agent, and Mr. Perera, for therespondents, have argued that the proper remedy of the petitioner,if any, is by quo warranto, as the office of Committee men is de factofull. For the petitioner, however, it is urged that the properremedy is by mandamus, in view of the fact that the election isalleged to be merely colourable, in fact void. This is a difficultquestion, as no very precise test of a merely colourable as distin-guished from an illegal election can be extracted from the Englishauthorities. (Shortt on Mandamus, p. 290.) I have come to theconclusion, however, on the facts here, that it is not necessary for meto decide this question, for I am able to proceed upon the assumptionthat the remedy is properly sought by mandamus. The question,then, has to be decided whether petitioner is entitled to the remedyhe seeks. It is not a writ of right, and it is not issued as a matter ofcourse. (Halsbury’s Laws, vol, X., p. 78). It is a matter withinthe discretion of the Court, although certain rules have been laiddown in the decided cases for guidance in future cases. It does notfollow, however, as pointed out by Darling J. in Regina v. LeicesterUnion,1 that, if a Court in a particular case thinks it not advisableto grant a writ of mandamus any kind of principle is thereby
‘291191 U899) 2 Q. B. at p. 638.
ittS.
Dauow J.
Madarutyake
v.
Schrader
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1MB.
DamdmJ.
Madandyake
v.
Schrader
established. In Regina v. Church Wardens of All Saints, Wi^an,1Lord Chelmsford says: “A writ of mandamus is a prerogative writ,and not a writ of right, and it is in this sense in the discretion of; theCourt whether it shall be granted or not. The Court may refuseto grant the writ, not only upon the merits, but upon some delay,or other matter, personal to the party applying for it/’ With thatview Lord Hatherley agreed, adding: “upon a prerogative writthere may arise many matters of discretion which may induce the•fudges to withhold the grant of it, matters connected with delayor possibly with the conduct of the parties. ”
Petitioner, if he was not actually present at the meeting held onMarch 10 and taking part in it as alleged by the respondentsat the latest was fully aware of the meeting two days later, buthe did not take these steps until November N21, allowing a period ofi&ight months to elapse. The life of the Committee only extendedto three years from July 1, and it has already undertaken severalimportant duties and works in the interests of the general communitywhich must have been known to petitioner. In seeking to explainthis delay petitioner was in an obvious difficulty. It was apparentthat he wished to disassociate himself from anything Ukku Bandahad clone, but Counsel had to admit that he took no steps untila few days after Ukku Banda's application had been dismissed.If he was acting quite independently of Ukku Banda, his delayprior to August is unexplained, as is the presence of the letter toUkku Banda in the body of his petition. If he was not actingindependently of Ukku Banda, that fully explains the time ofhis request to the Government Agent, and the presence of she?*Government Agent's reply to Ukku Banda in his petition to thisCourt, and his motives at once become open to question. Evenafter that, there was further delay from August 4 to November 21.It is not possible to lay down any rule as to the time within whichparties should move, but here was a public body to the knowledgeof petitioner doing important work, levying taxes, making contracts,paying salaries, &c., all of which according to him was quite illegal,and he sits by for some months and allows the work to go on withoutobjection. In Oroaghton and Others u. Commissioners of StampDuties 2 it was held that an application for a mandamus upon theCommissioner to state a case setting out the grounds of his assess-ment duty was not brought within a. reasonable time when madenine years after the assessment. On the other hand, in cases arisingunder the Public Health Acts of 1848 and 1875, and rates raisedthereunder, Kennedy L.J. points out in Croydon Corporation v.Croydon Rural Council3 that it can safely be deduced from reportedcases that, if no proceedings have been taken to enforce a claim
* (187$) 1 A.C.at p. $20.* (1899) A. C. 251.
* (1908) 2 Ch. at p. 33$.
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for debt within six months after the debt has become due and 1888ascertain, there must be some very special circumstances to das&to* j.justify the Court in granting a mandamus. Having regard to all-—
the circumstances, I am not satisfied that applicant here has ^adanayokemoved within a reasonable time. I am, further, not satisfied with Schraderhis motive for moving. -There is veiy strong ground for concludingthat he is here merely a substitute for Ukku Banda, who has failedto pay an order for costs made against him in favour of the presentrespondents resisting this application. He may, it is true, himself,as an inhabitant of Akmeemana, have a strict legal right, but theCourt will not use its discretionary powers to enable him to assert it“ when not convinced of the propriety of his motives ” (Shortt,p. 251). One must not be astute to discover reasons for not apply-ing this great constitutional remedy for error and misgovernment(see the words of Martin B. in Rochester Corporation v. Regina)1; onthe other hand, an applicant must satisfy the Court that he hasestablished such a reasonable case as to justify the exercise of itsdiscretion in his favour.
On the footing, therefore, that applicant is entitled here to proceedby mandamus, I am not satisfied that this is a case in which such awrit should issue. The application must therefore be refused, andthe rule will be dicharged with costs.
Application refused.
1 (1358) E. B.dsE.at p. 1030.