077-NLR-NLR-V-51-MOHAMED-CASSIM-Petitioner-and-ABDUL-HAMEED-Respondent.pdf
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WINDHAM J.—Mohamed Cassim v. Abdul Haineed
1950Present: Windham J.
MOHAMED CAS81M, Petitioner, and ABDUL HAMEED, Respondent,
S. C. 348.—Application for a Writ of Quo Warranto onM. Y. Abdul ffameed.
■Quo Warranto—Licensed process server—‘Right to be member or Chairman of VillageCommittee—Meaning of “ holder of any public office urvl-er the Croton ”—Fiscals Ordinance (Cap. 8), s. 4—Local Authorities Elections Ordinance,No. 53 of 1946, s. 10 (1) (d).
A process server licensed as a Fiscal’s Officer under section 4 of the Fiscal'.-*Ordinance is not the holder of a public office under the Crown within the meaningof section 10 of the Local Authorities Elections Ordinance, No. 53 of 1946, andia, therefore, not disqualified to be olected as a member of a local authority.
APPLICATION for a writ of quo warranto challenging the right ofthe respondent to be elected Chairman of the Village Committee,Saintbamaruthu, Karawaku South.
C. S. Barr Kumarakulasinghst with A. I. Rajasingham, for petitioner.
8. Nadesan, with 8. Mahadeva and M. A. M. Hussein, for respondent.
Cur. adv. irult.
February 9, 1950. Windham J.—
The petitioner is a registered voter for Ward No. 7, Saintharaaruthu,Karawaku South Village Committee. At the election to the VillageCommittee on June 11, 1949, the respondent was elected a member ofthe Committee for Ward No. 7. On July 13, 1949, the respondent waselected Chairman of the Village Committee, and since then has functionedas such.
> (19-10) 11 N. L. R. 205.
WINDHAM J.—Mohamed Cassim v. Abdul Hameed
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I am satisfied upon the evidence before me that prior to his nominationand election as member of the Committee and.during the period of electionthe respondent exercised the functions, and that he still exercises thefunctions, of a Fiscal’s Officer, a licence to act^srnch having been issuedto him with effect from February 1, 1942, by the Fiscal, EasternProvince, who on January 28, 1942, had purported to appoint him tothat office by letter of appointment enclosing the licence. It would seemthat the letter of appointment and the licence were issued by the Fiscalin exercise or purported exercise of his powers under section 4 of theFiscal’s Ordinance (Cap. 8). Section 4 provides as follows :—
“ 4. For the service and execution of processes issued by the courtsIn this Island the Fiscal shall license as many process servers for eachdistrict as shall appear to him to be necessary and the licences to beissued by him shall be substantially in the form B to the Schedule.
' The Fiscal shall also have authority to revoke any licence granted byhim whenever it shall appear to him necessary to do so :
Provided that it shall be lawful for the Fiscal or Deputy Fiscal toappoint, by writing under his hand, any person to execute process inany particular case ”.
Now, section 4 does not empower the Fiscal to “ appoint ” anybody.as Fiscal’s Officer or as process server, or to office of any kind ; nor doesthe section specifically empower the Fiscal to license any person as” Fiscal’s Officer ”, but only to license persons as process servers. I amsatisfied, however, upon the evidence of the Additional Deputy Fiscalwho testified before me, and after hearing learned counsel, that, while•the respondent was licensed under the designation “ Fiscal’s Officer ”,his functions as such would fall within these of a process server, namely,to exeoute writs, and if necessary to seize and sell in execution propertyof under Rs. 1,000 in value ; and that accordingly the powers of theFisoal under the first part of section 4 of the Ordinance included thepower to license him as a “ Fiscal’s Officer ”, though not the power toappoint him as such.
It is the petitioner’s contention that the respondent held the office of“ Fiscal’s Officer ” or “ Fiscal’s Writ Offioer ” (the two terms appearin practice to be synonymous) and that this office is a “ public officeunder the Crown in Ceylon ”, and that accordingly the respondent wasnot qualified to be elected to the Village Committee by reason ofsection 10 (1) (d) of the Local Authorities Elections Ordinance, No. 53of 1946, which disqualifies the holder of such an office from being soelected. The question for decision is whether the respondent, by reason•of being licensed as a Fiscal’s Officer, was the holder of a publio officeunder the Crown in Ceylon.
The term “ public office under the Crown ” is nowhere defined in theOrdinance, but there have been a number of decisions, both in the Englishcourts and in those of Ceylon, wherein it has been laid down that there arecertain tests to determine whether a person is the holder of an officeunder the Crown; I refer in particular to the recent decisionsof this court in Podi Singho v. Goonesingha, 1 and Jayasirika v.JSoysa2. Two of the most important of these tests are (1) who makes8 (1948) 49 N. L, K. 344.1 (1949) 51 N. L. H, S31 / 41 C. L. W. 25.
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WINDHAM J,—•Mohamvd Caetim «. Abdul Homed
the appointment to the office ? (2) who pays the salary ? If the answer'to both these questions is not the Crown, then the person concerned,cannot, in my view, be sttid'to be holding a public office under the Crown.
Now in the case of tftFbdal’s Officer, who is a species of process server,there is in my view a failure to pass either of these tests, and the failure,moreover, arises from a petilio principii, a begging of the question ineach case.
For, as regards the first test, it seems to me that the respondent wasnever appointed to any office at all. The purported appointment bythe Fiscal tinder section 4 was, as I have pointed out, outside the powersconferred by that section, which only provides for the licensing of processservers. The only section in the Ordinance which provides for the-appointing of officers is section 9, wherein the power is vested in theGovernor. Nor is this distinction between licensing and appointingmerely a technical one. For an appointment to an office presumes thatthere is an office in existence as distinct from the individual who is:appointed to hold it; it presumes the office to have independent existenceand some degree of permanence, even though it may have been createdsimultaneously with tho appointment. But where an individual is merelylicensed, as was the respondent in the present case, to do from time totime, as occasion may arise, certain acts under the authority and protection:of the law, then I do not consider that he is holding an office at all,any more than a licensed auctioneer could be said to be the holder of anoffice by reason, of his being licenced to hold auctions from time to time-under the authority of the law. While not going so far as to stretchthe common meaning of language by holding, as learned counsel forthe respondent asks me to hold, that a process server cannot be calleda process server save when he is in the process of serving a process, I do-hold that he is not the holder of an public office under the Crown, orindeed of any office at all, but is merely a person licensed by the Crown1to do certain acts which, though they may relate to private rights and:disputes, are broadly speaking in the public interest.
And with regard to the second question, namely, who pays the-respondent’s salary, the test again fails at the threshold, for the answeris that the respondent is paid no salary. His only remuneration, as-Fiscal’s Officer, is the receipt of a commission of two per oent. on theamount of sales effected by him. These commissions are paid to him,,it is true, by the Fiscal from the Kachcheri funds, and thus by the Crown ;but they do not constitute a salary. They are ad hoc and contingentpayments, while a salary is something regular and permanent, albeitalterable in amount. It seems to me that the receipt of a salary (though,in exceptional cases it might be a nominal one) is an essential requirementfor the holding of an office. For this further reason, I hold that the*respondent was not and is not the holder of an office at all, and therefore-not the holder of a public office under the Crown in Ceylon.
The petition accordingly fails, and is dismissed with costa.
Application dismissed.