007-SLLR-SLLR-2005-V-3-MASAHIR-vs.-RETURING-OFFICER-KEGALLE-DISTRICT-AND-OTHERS.pdf
Masahir vs. Returning Officer Kegalle District
and Others (Sriskandarajah J.)
39
>cA
MASAHIR
VS
RETURNING OFFICER, KEGALLE DISTRICT AND OTHERS
COURT OF APPEALIMAM, J. ANDSRISKANDARAJAH, J.
CA 1298/2003.
JULY 22, 2005.
Local Authorities Elections Ordinance, No. 53 of 1946 – section 65A—Electedcandidate resigns-Vacancy—Could a person who was not a candidate benominated to fill vacancy-Provincial Councils Elections Act – Section 65compared.
The petitioner contested the elections of the Mawanella Pradeshiya Sabhafrom the United National Party (UNP). Sixteen candidates were appointed tothe Sabhawa; the petitioner was the seventeenth in the list. One candidateelected from the list resigned; the UNP sought to nominate the 3rd respondentwho was not a candidate and the 3rd respondent was declared by the 1strespondent elected to the Mawanella Pradeshiya Sabha.
The petitioner contends that, the said nomination is ultra vires.
HELD:
The power of the Secretary of the UNP in the instant case is restrictedto nominate a person from the list of candidates which appears in therelevant nomination paper who has secured some preference at theelection.
As the 3rd respondent was not a candidate and his name does notappear in the nomination paper of the relevant election the nominationof the 3rd respondent to fill the vacancy created by the resignation of the4th respondent is ultra vires.
APPLICATION for writs in the nature of certiorari/mandamus.
Case referred to:
Centre for Policy Alternatives (Guarantee) Ltd. and Another vs. DayanandaDissanayake and 3 others 2003 1 Sri LR 277.
Dr. J. de Almeida Gunaratne, P. C. with Kishali Pinto Jayawardane andMaduranga Ratnayake for petitioner. Janak de Silva, State Counsel for 1st-5threspondents.
40
Sri Lanka Law Reports
(2005) 3 Sri L
H. I. M. Azver for 3rd respondent.Daya Pelpola for 6th respondent.
Cur. adv.vult.
September 19, 2005.
S.SRISKANDARAJAH., J.The Petitioner contested the elections of the Mawanella Pradeshiya Sabhafrom the United National Party which was held on 20.03.2003. The resultsof the said election for the Mawanella Pradeshiya Sabha was declared bythe 1 st Respondent and according to the said results sixteen candidateswere appointed to the Mawanella Pradeshiya Sabha from the list of theUnited National Party. The Petitioner submitted that he had comeseventeenth on the list according to the preference given by the voters,and his name appears immediately below the last candidate who hadbeen elected. The Petitioner also submitted that according to the list thedifference in votes between the candidate who had come sixteenth on thelist and the Petitioner was negligible. On 15.03.2003 he was informed thatope candidate who had been elected to Mawanella Pradeshiya Sabhafrom the United National Party list namely the 4th Respondent had resignedfrom his post as member of the Mawanella. Pradeshiya Sabha for personalreasons. Consequently a vacancy arose in the Mawanella PradeshiyaSabha and he had expected that he would be elected as he was theseventeenth on the list of preference obtained by the candidates andimmediately below the last to be elected on the list as aforesaid.
On or about the 23rd of May, 2003 the Petitioner submitted that hecame to know that the United National Party General Secretary the 2ndRespondent had issued a letter to the 1 st Respondent nominating the 3rdRespondent to fill the said vacancy created by the resignation of the 4thRespondent. Consequent to the said nomination by the 2nd Respondentthe 1 st Respondent declared the 3rd Respondent elected to the MawanellaPradeshiya Sabha from the Kegalle District (P6).
The Petitioner submitted that the 1 st Respondent was obliged in law toreject the said nomination of the 3rd Respondent by the 2nd Respondentby virtue of section 65A of the Local Authorities Election Ordinance No. 53of 1946 as amended. The said decision of the 1 st Respondent and/or the
Masahir vs. Returning Officer Kegalle District
and Others (Sriskandarajah J.)
41
Cl
2nd Respondent has been arrived at without taking into account relevantfacts into consideration and the said decision was arrived at through amisconstruction of the aforesaid section of the said Ordinance. The 1 stand 2nd Respondents have contravened the principles of natural justiceand reasonableness and for these reasons the Petitioner has sought tochallenge the order of the 1 st Respondent by way of a writ of certiorari toquash the election of the 3rd respondent to the Mawanella PradeshiyaSabha, a writ of quo warranto declaring that the 3rd Respondent is notlawfully entitled to hold the office of the member of the Mawanella PradeshiyaSabha and to issue a writ of mandamus directing the-1 st Respondent todeclare as elected to the said vacancy from the list of the United NationalParty, the candidate most qualified according to law.
It is common ground that the Petitioner was a candidate from the UnitedNational Party and contested at the Mawanella Pradeshiya Sabha Electionson 20.03.2002. According to the preference obtained by the candidates of!he United National Party the Petitioner was placed 17th in the preferentiallist and he was placed immediately below the last candidate who hadbeen elected. The 4th Respondent had resigned from his post as memberof the Mawanella Pradeshiya Sabha and the 2nd Respondent nominatedthe 3rd Respondent who was not a candidate in the aforesaid election tofill the said vacancy created by the 4th Responden’s resignation from hispost. The 1st Repondent declared the 3rd Respondent elected to theMawanella Pradeshiya Sabha.
The only question that has to be determined is whether 3rd Respondentwho was not a candidate in the Mawanella Pradeshiya Sabha Electioncould be nominated by the 2nd Respondent to a vacancy that occurred inthe Mawanella Pradeshiya Sabha and whether he could be declared electedas a member of the said Pradeshiya Sabha by the 1 st Respondent undersection 65A of the Local Authorities Elections Ordinance as amended.
Section 65A of the Local Authorities Elections Ordinance as amendedin all respect contains similar provisions to the section 65 of the ProvincialCouncils Elections Act, to nominate a person to fill a vacancy that occurreddue to death, resignation or for any other cause. Section 65 of the ProvincialCouncils Electrons Act, was interpreted by the Supreme Court in Centrefor Policy Alternatives (Guarantee) Limited and Another vs. DayanandaDissanayake and three Others Fernando J in this judgment held :
5- CM 72 16
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Sri Lanka Law Reports
(2005) 3 Sri L R.
‘To sum up, section 65(2) is not plain and unambiguous; section65(3) takes precedence over section 65(2); section 65(3) manifests alegislative intention that vacancies should be filled either by qualifiedcandidates or by election; If section 65(2) is interpreted to mean thatthe secretary may nominate any person who is qualified at the time ofsuch nomination, that gives rise to an anomaly or inconsistency; thegeneral scheme of the Act, from nomination up to the declaration of theresults of the poll is that the electorate should be represented bypersons who have contested the election; the fact that the nominationpaper is required to have three candidates more than the number ofmembers to be elected and cannot be altered indicates that thenomination paper is the pool from which subsequent vacancies shouldbe filled. Accordingly the wide language of the first limb of section 65(2)must be restrictively interpreted, in the context of section 65(3) as wellas the general scheme of the Act and basic democratic principles. Ihold that despite the general words used, the secretary’s power tonominate is confined to candidates whose names appear in the originalnomination paper and who secured some preference at the election.”
In view of the interpretation of the provisions of the above section thepower of the Secretary of the United National Party in the instant case isrestricted to nominate a person from the list of candidates which appearsin the relevant nomination paper who has secured some preference at theelection. As the 3rd Respondent was not a candidate and as his namedoes not appear in the nomination paper of the relevant election, thenomination of the 3rd Respondent to fill the vacancy created bytheresignation of the 4th Respondent is ultra vires. Hence the Court issues awrit of certiorari quashing the election of the 3rd Respondent to theMawanella Pradeshiya Sabha. The Court directs the 1st Respondent totake steps according to law to fill the vacancy ‘occurred’ in the MawanellaPradeshiya Sabha by this order. The application for the writ of certiorariand writ of mandamus is allowed without costs.
IMAM,J.—I agree.
Application allowed.