115-NLR-NLR-V-39-MARIKAR–v.-PUNCHIHEWA.pdf
412
Marikar v. Pun'chihewa.
1938Present: Keuneman A.J.
MARIKAR v. PUNCHIHEWA.
In re Application for a Writ of Quo Warranto.
Urban District Council—Election of Chairman—No quorum—Question not putto the vote—Election invalid—By-law 1 (/).
Where the Chairman of an Urban District Council was elected at ameeting of the Council at which the number of members present was notsufficient to form a quorum, and where the question was not duly put tothe meeting and a vote taken,—
Held, that the election of the Chairman was invalid.
The language of by-law 1 (f), “no business shall be transacted atar.y meeting uniass a quorum of at least six Councillors is present”, isimperative.
T
HIS was an application for a writ of quo warranto on the Chairman ofthe U. D. C., Nawalapitiya.
N. E. Weerasooria (with him H. A. Wijeymanne), for. petitioner.
H. V. Perera, K. C. (with him G. P. J. Kurukulasuriya), for respondent.
Cur. adv. vult.
KEUNEMAN A.J.—Marikar v. Punchihewa.413
January 31, 1938. Keuneman A.J.—
The petitioner applied for a writ of quo warranto declaring the electionof the respondent as Chairman of the Nawalapitiya Urban District Councilnull and void, and that the respondent is not entitled to function asChairman.
The respondent was elected Chairman on January 7, 1936, and underthe terms of Ordinance No. 11 of 1920, his term of office expired onJanuary 6, 1938, but he was eligible for re-election. The Council consistedof nine members, and under the by-laws 6 members were necessary toform a quorum at a meeting. A meeting of the Council was held onDecember 21, 1937, and the eleventh item on the agenda was the electionof a Chairman for 1938.
When the eleventh item was reached, according to the minutes whichhave been produced, there was a certain amount of discussion, and thenames of the respondent and of Mr. Rajakulendram were duly propposedand seconded. There was further discussion as to whether the respondentshould vacate the chair pro tem, but the respondent refused to do so.Mr. Rajakulendram proposed that the matter be postponed for January7, and this was seconded by the petitioner. The respondent as Chairmanruled that this proposal was out of order. It was not seated on whatground this ruling was made, nor did any explanation of this ruling emerge'at the inquiry before me.
Mr. Rajakulendram, the petitioner, and two other members thenwithdrew from the meeting. Admittedly, thereafter only five memberswere present at the meeting, and that number was insufficient for aquorum. The Chairman thereafter suspended the session at that point.The reason given was disorderly conduct. At the inquiry before me,counsel for the respondent argued the case on the footing that the session,was suspended for want of a quorum.
According to the affidavits submitted for the petitioner, the meeting onthat occasion was adjourned for January 7, and that is borne out by theaffidavit of the respondent himself.
On the morning of January 5, the petitioner was served with a noticedated January 4 to the effect that the adjourned meeting would be.heldon January 6. The petitioner and three other members informed the-Secretary in writing that they were unable to attend the meeting.
On January 6, five members including the respondent met. Accordingto the minutes, the Chairman addressed the members, and ruled that “ inthe absence of the members who walked out, this constituted thesuspended sitting of the session as it stood at item 11 ”. The respondentsaid “ he would like to confirm the indications.”,
Thereafter the minutes run as follows :—“ The Chairman asked whetherany amongst those present were against Mr. Punchihewa’s candidature.There being none, he inquired whether there were any for Mr. Raja-kulendram. There being none, he said the position was now very clear.Thereupon the Chairman declared Mr. Punchihewa re-elected Chairman
The Medical Officer of Health who was present then stated that to his.mind it appeared to be an imporperly constituted council and dissociatedhimself from the proceedings. The District Engineer concurred with the-Medical Officer of Health.
414KEUNEMAN A.J.—Marikasn v. Putichihewa.
1 have followed the official minutes, but I may add that the petitionerdid not accept those minutes as correct. For example, the petitionermaintained that the protests of the Medical Officer of Health and theDistrict Engineer were made before and not after the respondent haddeclared himself elected Chairman for 1938.
Several objections have been taken to these proceedings—
that in the absence of a quorum of at least 6 members, no mattercould have been decided at the meeting of January 6.
that the matter was not duly put to the vote, nor was any vote
taken.
that the meeting was held one day too late.
The first objection is in my opinion a serious one. The by-laws for thisCouncil appear in Government Gazette No. 7,994 of July 28, 1933. Underby-law 1 (f) “ No business shall be transacted at any meeting unless aquorum of at least six Councillors is present ”. Under by-law 1 (g) wherethe number, of Councillors is not sufficient to form a quorum, “theChairman shall adjourn the meeting to such date not more than fifteendays after the date of the meeting so adjourned as he thinks fit, and thebusiness which would have been brought before the meeting so adjourned,if there had been a quorum present shall be brought before and disposedof at such adjourned meeting ”.
It has been argued by Counsel for the respondent that where a meetinghas been adjourned for want of a quorum, on the date to which themeeting is adjourned, the particular business adjourned can be transacted,even though less than six members are present. I do not think thelanguage of the by-laws leads me to that conclusion. In the matter ofthe quorum the language of by-law 1 (/) is imperative, and I do not thinkthat by-law 1 (g) modifies it in any particular. I have been referred to■certain Articles (vide Blackwell’s Public and Company Meetings (8th ed.),P. 185) where it is expressly stated in the Articles that where a meetingis adjourned to another date for want of a quorum, on the adjourned datethe members present shall form a quorum. This may be a desirable rule,but I think it must be a matter of contract or of legislative enactmentand I am not inclined to import such a meaning into the language ofby-law 1 (g).
In this case it is further not clear that the adjournment of the meetingwas owing to the want of a quorum. The respondent purported toadjourn the meeting on the ground of grave disorder. This would beunder the power given by by-law 26. Counsel for the respondent con-ceded that the argument which he addressed to me under by-law I (g)would not apply in the case of by-law 26. But even if I regard the actionof the respondent on December 2!, as having been taken on the by-lawI (g), I have to take into account the fact that on December 21, therespondent adjourned the meeting for January 7. No meeting was heldon that date, but another meeting was fixed by special notice for. JanuaryI am not satisfied that this meeting on January 6 can be regardedas “ the adjourned meeting ” under the term of by-law 1 (g).
KEXJNEMAN A. J.—Marikar v. Punchihewa.
415
I hold that the election of the respondent as Chairman is invalid forwant of a sufficient quorum at the meeting of January 6. This is a vitalmatter, vide In the Matter of an Application for a Writ of Quo Warrantoto set aside the election of the Chairman of the Village Committee,Kosgoda.1 In this case the relevant Ordinance made no provision for-a quorum, and Maartensz, J. held that an election made at a meetingwhere all the members were not present was not valid.
As regards the second objection, Counsel for the petitioner dependedon by-law 9 (i) which requires that when the motion has been moved andseconded and the debate concluded the matter shall thereupon be put to,the vote by the Chairman. At the, adjourned meeting of January 6 therespondent said, “ he would like to confirm the indications ”—whateverthat may mean. He then asked whether any one present was “againstthe election of Mr. Punchihewa”. The minutes record that there wasnone. Respondent then inquired whether there were any “for Mr. Raja-kulendram I do not understand, .nor was Counsel for respondent ableto explain to me, the reason for the change in the formula in the two-cases. At any rate it is sufficient to say that the respondent made no-attempt to discover whether anyone present was in favour of his electionat that stage. I think there has been no real attempt to put the matterto the vote, and that the subsequent declaration by respondent that he-had been elected was invhlid.
The third point taken was that the meeting of January 6, was in anyevent after the fifteen days had elapsed and that accordingly by-law 1 (g)had no application. It is admitted that the meeting was one day too-late, and I think the respondent cannot take advantage of that by-law,if in point of fact that by-law can be interpreted in a manner favourableto his contention.
Counsel for. the respondent further argued that the discretion given to-the Court should not be exercised in favour of the petitioner.. He citedto me the case of Rex v. Parry * in which certain principles laid downby Lord Mansfield as to the discretionary power of the Court were quoted.First, “ the light in which the relators now informing the Court of thisdefect of title appear, from their behaviour and conduct relative to the-subject mattef of the information, previous to their making this motion.Secondly, the light in which the' application itself manifestly showstheir motives, and the purpose which it is calculated to serve. Thirdly,the consequences of granting this information.”
As regards the third ground mentioned, the fact that there is no electedChairman would no doubt resqlt in considerable inconvenience, butCounsel was not able to show me that this could not be remedied by theholding of a fresh election, and far less that the dissolution of the corpora-tion may reasonably be expected, as was held in Parry’s case. Furtherit is far from certain that if all irregularities and illegalities had beenavoided, no other result would have been obtained.
As regards the conduct of the petitioner and the other members whio-acted with him, it was suggested for the respondent that the motive for-their action was obstruction. It is true that they left the meeting onDecember 21, and that in consequence there was no quorum, but as-* 29 N. L. B. 129.* 6 Adolphus <k Ellis 810 at 821.
416
Jury v. Attorney-General.
■regards the meeting on January 6, the notice although perhaps legalwas very short, and it has not been shown that they were guilty ofobstruction in absenting themselves from that meeting.
Further it has been alleged in this case that the respondent had anindirect motive. An early attempt had been made to' induce the respond-ent to vacate the chair, on the ground apparently that as long as heacted as Chairman, he had a casting vote which he could exercise if.necessary on his own behalf. It seems clear at any rate that the respond-ent was anxious to have the election completed, before his own term ofoffice expired, and that he has acted in a manner which was illegal, inspile of the protests of disinterested members.
I do not think that the circumstances are such as to make me refuse toexercise my discretion in favour of the petitioner. I am of opinion thatthe rule must be made absolute and the election of the respondent setaside, and the respondent declared not entitled to the office of Chairmanof the Urban District Council of Nawalapitiya.
The petitioner will be entitled to the costs of this application.
Rule made absolute.