043-NLR-NLR-V-46-MENDIAS-APPU-v.-HENDRICK-SINGHO.pdf
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WLTEYEWABDENE l.—Mendias Appu v. Hendrick Singho.
1948
Present: Wljeyewardene J.
MENDIAS APPU v. HENDRICK SINGHO.
In the Matter of an Application for a Writ of QuoWarranto against Diogunnkhendioe Hendrick Singho.
Writ of Quo Warranto—Election to village committee—Disqualification ofmember elected—No objection raised on date of nomination—Concurrence-Quo Warranto lies—Effect of petitioner's delay or malice—Village Com-munities Ordinance (Cap. 198), ss. 13 (e), 15 (3) and (4).
An application for a writ of guo warranto lies to set aside an election to-a village committee on the ground that the respondent who was electedwas not qualified for election as a member. The fact that the peti-tioner did not raise objection, under section 15 (3) of the Village Com-munities Ordinance, to the nomination of the responded would notoperate as a bar.
“ On the question of concurrence a distinction has to bo drawn betweencases where the defect arises in connection with the form of conducting-the election and cases where the defect lies in the non-compliance witba positive requirement of the law regarding the qualification of thoperson elected. ”
The writ will not, however, be granted if there has been unreasonable-delay on the part of the petitioner or where he is actuated by malice.
A
PPLICATION for a writ of quo warranto to have it declared that theelection of the respondent as member of a ward in a village area
was void on the ground that he was not qualified for election as a memberas he had been convicted of an offence under section 315 of the PenalCode in 1921 and served a sentence- of six months’ rigorous imprisonment.
/S. C. E. Rodrigo for the petitioner.
C. S. Barr Kumarakulasingham (with him Vernon Wijetunge), for therespondent.
Cur. adv. cult. 1
March 6, 1945. Wukyewardene J.—
This is an application for a writ of quo warranto declaring that theelection of the respondent as member for Lucasgoda Ward in the VillageCommittee of Tissamaharama is null and void.
Acting under the provisions of section 14 of the Village CommunitiesOrdinance, the Government Agent fixed May 31, 1944, as the day for thedelivery of nomination papers. On that day the respondent alone wasnominated for the Lucasgoda Ward, and the Government Agent declaredhim to be the duly elected member for that ward. The petitioner filedpapers in this Court on September 22, 1944, impugning the election on theground that the respondent was not qualified for election as a member, ashe had been convicted in 1921 for an offence under section 315 of the PenalCode and served a sentence of six months’ rigorous imprisonment (videsection 13 (e) of the Village Communities Ordinance). The respondent
WLTETBWABDENE J.—Mendiaa Appu v. Hendrick Singho.
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does not dispute the fact that he was so disqualified at the date of the/election but seeks to obtain relief on the following grounds:
that the remedy by way of quo warranto does not lie in this case.
that there has been unreasonable delay on the part of the petitioner.
that the petitioner has presented this application because the
respondent criticised the present Chairman of the VillageCommittee.
The argument in support of ground (a) was briefly as follows: —
The petitioner did not avail himself of the opportunity given by section15 (3) to raise an objection to the nomination of the respondent on May 31,1944, when the respondent’s nomination paper was delivered to theGovernment Agent. In the absence of any such objection, the Govern-ment Agent declared him duly elected under section 15 (4) and in doing sothe Government Agent exercised a judicial function. Section 15 (3),moreover, makes the decision of the Government Agent with regard toany objection to a nomination final and conclusive.
I am unable to uphold this contention. It is not suggested that thepetitioner was present when the nomination papers were delivered.Moreover, even if he was present, the circumstances in which noirhinationsare made should be considered before a decision is reached on the questionwhether he concurred in the election. The Village CommunitiesOrdinance makes no provision for the preparation of lists for voters andeligible candidates. A voter cannot be expected reasonably to acquainthimself with the early history of all the villagers and much less to providehimself with the necessary evidence to prove what he knows against themso as to be ready to object successfully to the nomination of anyone of thevillagers whose name may be put forward. I am in respectful agreementwith the views expressed by Maartensz A.J. in G. R. Karunaratne v.Government Agent, Western Province l.
No doubt, section 15 (3) makes the decision of the Government Agentfinal and conclusive. The decision therein referred to is the decision givenby the Government Agent after inquiry into an objection raised at thetime the nomination papers are delivered to him. But where no objectionis raised, all that the Government Agent is required to do is to “ scrutinisethe nomination paper which is in the Form B in the schedule to the Rulesrelating to the Conduct of Elections (Subsidiary Legislation 1941, Supple-ment Volume 3, Page 336). That Form gives the names and addresses ofthe proposer, the seconder and the candidate. It also contains a declara-tion by the proposer and the seconder that they are entitled to vote butstrangely enough omits any declaration as to the eligibility of the proposedcandidate. The Government Agent “ scrutinising ” the nominationpapers is not, therefore, even acting on a declaration made by anyonethat the candidate has the necessary qualification to be a member of theVillage Committee.
Moreover, on the question of concurrence a distinction has to be drawnbetween cases where the defect arises in connection with the form ofconducting the election and cases where the defect lies in the non-compliance with a positive requirement of the law regarding the
46/151 (1930) 32 N. L. R. 169.
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The King v. Appuhamy.
qualification of the person elected. In Rex v. Smith 1 an objection wastaken to the election of a Mayor on the ground of his not having takenthe sacrament according to the rites of the Church of England, withinone year next before his_ election, as required by the 13 Car. 2 stat.2 c. 1. The Court set aside the election and held that the relators werenot disqualified by reason of their having concurred in the election.
The petitioner’s Counsel, however, was unable to give any explanationfor the delay in presenting the petition. The petitioner has not stated inthe affidavit when he first became aware of the conviction of therespondent.
The respondent stated in his affidavit that the petitioner, a servant ofthe Chairman of the Village Committee, was “ actuated by malice ” as he-had occasion to criticise the Chairman. This statement was not contra-dicted by any counter-affidavit. In fact, it appeared to be conceded inthe course of the argument.
I refuse the application on the grounds (6) and (c). The respondent isentitled to costs.
Application refused.