042-NLR-NLR-V-51-MARK-Petitioner-and-A.-G.-A.-MANNAR-et-al-Respondents.pdf
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Mark t>. A. Q- A., Mannar
1949
Present:Jayetlleke S.P.J.
MARK, Petitioner, and A. G. A., MANNAR, et al., Respondents
8. C. 448—Application for Writs of Certiorari and Mandamus againstthe A. Q. A., Mannar
Writs of Certiorari and Mandamus—Statutory requirements relating to performanceof a public duty-—Circumstances when they will be construed as merely directory—Village Communities Ordinance {Cap. 198)—Object of Section 15 (3).
When the provisions in a statute relate to the performance of a public dutyand the case is such that to hold null and void acts done in neglect of this dutywould work serious general inconvonienoe or injustice to persons who have nocontrol over those entrusted with the duty, and at the same time would notpromote the main object of the legislature, the Court would hold such pro-visions to bo directory only, the neglect of them, though punishable, not affectingthe validity of the acts done.
The object of the provisions of Section 15 (3) of the Village CommunitiesOrdinance as amended by Section 4 of Ordinance No. 11 of 1940 is to give thecandidates who are duly nominated sufficient time to get ready for tho election.Where, therefore, only one candidate is nominated the failure to obsorve thetime limit imposed by the enactment is not a fatal irregularity.
This was an application for a writ of certiorari to quash an ordermade by the Assistant Government Agent, Mannar, and for a writ ofmandamus to compel the holding of a poll for tho election of a memberfor ward No. 1 of the Vankalai Village Committee.
JAY13TILEKE S.P.J.—Mark v. A. G. .4., Mannar
181
Section 15 (3) of the Village Communities Ordinance provides : “ Thenomination paper or papers delivered by or on behalf of the candidateor candidates for election shall be scrutinised forthwith by the Govern-ment Agent; and all objections raised against any candidate, on theground that he is not qualified to be elected or that he is not a candidateduly nominated, shall be disposed of by the Government Agent, aftersuch inquiry as he may deem sufficient, eithor forthwith or at anyconvenient time not less than seven days prior to the date of the meetingof voters summoned under section 14
The main question for consideration in, this application was whetherthe failure of the Government Agent to give his decision within theperiod fixed in Section 15 (3) of the Village Communities Ordinance couldbe regarded as a fatal irregularity in all cases.
S. Mahudevan, for the petitioner.
M. Tiruchelvam, Crown Coniwelt for the 1st respondent.
Our. a fir. mil.
August 2»i, 1949. JaYETJI.TBXE 8.P.J.—
This is an application for a writ of Certiorari to quash the order madeby the 1st respondent; that the petitioner was not a duly nominatedcandidate for ward No. 1 of the Vankalai Village Committee and declaringthe 2nd respondent the duly elected member for that ward, and for awrit of Mandamus to compel the 1st respondent- to hold a poll for theelection of a member for that ward.
The 1st respondent issued a notice under section 14 (4) of the VillageCommunities Ordinance (Cap. 198) that he would receive on June 4,1948, nominations for the election of a member for ward No. 1 of theVankalai Village Committee. On that day one nomination, paper wastendered to him by tho petitioner and another by the 2nd respondent.Immediately after the nomination papers were tendered to him thepetitioner objected to the nomination of the 2nd respondent on the groundthat the proposer and the seconder were not qualified to vote as theyhad not resided for a continuous period of six months in ward No. 1during the 18 months immediately preceding June 4, 1948, and the 2ndrespondent objected to the nomination of the petitioner on the groundthat the seconder was not qualified to vote for a similar reason. Thepetitioner states in his affidavit that the 1st respondent did not holdan inquiry into the objections and that 1st respondent failed to give hisdecision on the objections within the time prescribed in section 15 (3)of the Ordinance. The 1st respondent states in his affidavit that whenthe petitioner raised the objection he questioned the Village Headman,who was present, and informed the candidates that he would make hisorder in a week’s time. Thereupon he inquired from the DivisionalRevenue Officer whether the petitioner’s seconder was a resident ofVankalai and was satisfied that he was not, and he accordingly upheldthe 2nd respondent’s objection on June 12, 1948. He states further
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JAYKTU.KKK &.VJ^~Mark •. A. (J. A., Mannar
that he inquired into the objection raised by the petitioner and overruledit. The main point taken on behalf of the petitioner was that the 1strespondent failed to give his decision within the period fixed in section15 (3) of the Ordinance. The section provides that all objections raisedagainst any candidate shall be disposed of by the Government Agenteither forthwith or at any convenient time not less than seven daysprior to the meeting of voters summoned under section 14. The datefixed for the meeting was June 18, 1948, and it is clear that the ordermade by the 1st respondent was out of time. Tho Ordinance containsno enactment as to what is to be the consequence as to the non-observanceof the provision in section 15 (3). ft is contended for the petitioner thatthe consequence is that the election of the 2nd resi*ondent must betreated as a nullity.
Tl»© question that arises for decision is whether tho cuactment that allobjections shall l>e disposed of by the Government Agent at auy convenientt ime not less than seven days prior to the meeting of voters summonedunder section 14 is absolute or merel)' directory.
Tn Liverpool Hank v. Turner1 Lord Campbell said :—,
Si!No universal rule can be laid dowu as to whether a mandatoryenactment shall be considered directory only or obligatory with animplied nullification for disobedience. It is the duty of the Courtsof Justice to try to got at the real intention of the legislature by care*.fully attending to tho whole scope of the statute to be construed ”.
Maxwell2 says that when the provisions in a Statute relate to theperformance of a public duty and the case is such that to hold null andvoid acts done in neglect of this duty would work serious general incon-venience or injustice to persons who havo no control over those entrustedwith the duty, and at the same timo would not promote the main objectof the legislature, it. has boon the practice to hold such provisions to bedirectory only, the neglect of them, though punishable, not affecting thevalidity of the acts done.
Section 15 (3) of the Village Communities Ordinance was amendedby section 4 of Ordinance No. 11 of 1940 by the substitution for the words“ at any convenient time ” of tho words “ at any convenient time notlees than seven days Section 15 (3) of the principal Ordinance enabledthe Government Agent to dispose of objections even a day before thepolling date whereas the amending Ordinance set a time limit to thedisposal of such objections. I think it is reasonable to presume thatthe object of the legislature in amending the sectiou was to give thecandidates who were duly nominated sufficient timo to get ready for theelection. The neglect of the 1st respondent may have been fatal if the2nd respondent was not the only candidate who was duly nominated.But as the 2nd respondent was the only candidate it seems to me to beimmaterial. I would accordingly dismiss the application with costs.
Application dismissed.
1 (JS6J) 30 L. J. Ck. 370.
* Maxwell on Interpretation of Statutes Sth Ed. pp. 322, 326.