049-NLR-NLR-V-74-N.-ANTHONIPILLAI-Petitioner-and-A.-G.-RAJASOORIAR-Respondent.pdf
172
H. N. G. FERNANDO, C.J.—■Anihonipiltai v. Eajasooriar
1971Present: H. N. G. Fernando, C.J., and Thamotheram, J.
N.ANTHONTPILLAI, Petitioner, and A. G. RAJASOORIAR,
Respondent
S. O. 676jG9—Application for a Mandate in the nature of a Writof Quo Warranto
Local Authorities Elections Ordinance (Cap. 202)—Section 9, as amended by s. 4 ofAct No. 9 of 1963—Disqualification of a person for membership of a localauthority when he is a member of any other local authority—Whether quowarranto lies.
The election of a person as a member of a local authority when lie is alreadya membor of any other local authority is liable to bo 'declared null and voidby a writ of Quo Warranto. In such a case tho provisions of section 9 of theLocal Authorities Elections Ordinance, as amended by section 4 of Act No. 9 of1963, are applicable.
Sundara Banda v. Pathirana (73 Is". L. It. 100) distinguished.
Application for a writ of quo warranto.
K.N. Choksy, with M. Devasagayam, for the petitioner.
If. W. Jayewardene. Q.C., with C. Chellappah, for the respondent.
Cur. ado. vull.
September 19, 1970. H. N. G. Fernando, C.J.—
The Respondent to this application was a candidate at an Election ofmembers of the Jaffna Municipal Council. After that Election was heldhe was declared to have been elected as the member for Ward No. 1 ofthe Council.
H. X. G. 1'ERNAXDO, C.J.—Anthonipillai v. RajasooriarU$
Section 9 of the Local Authorities Elections Ordinance (Cap. 2G2);-as amended by s. J of Act lo. 9 of 1963, provides (hat a person .‘hall notat any- time be qualified to be c.’ceted as a member of a local authority,if such per;.on at that time “is a member of any other local authority-”.It is not contested in this case that the Respondent was, at the time ofhi s election as a member of (he Jaffna Municipal Council, already a memberof the Village Council of Pulopallai. Prim a facie, t hei efore, bo wasdisqualified for election to the Jaffna Council.
Counsel for the respondent has argued, however, that the Writ ofQuo Warranto will not lie against a person who was disqualified forelection at the time of his election. Counsel relied on two recentdecisions of this Court.
In Snndara Banda v. Palhiranu,1 it was held that the Writ will not lieto remove from office a person elected as a member of a Village Councilon the ground that he was not ordinarily resident within some Ward ofthe village area. The judgment relied on the fact that although therequirement of “ ordinary residence ” is prescribed in s. 8 of Cap. 262,s. 9 does not provide that a person who does not fulfil that requirement isdisqualified from being elected as a member of a local authority. Forthis reason the Court was of opinion that “the Legislature docs notappear to have regarded non-qualificat ion under s. 8 as a ground on whichan election shall be declared void
The present case is however different, for s. 9 (as amended in 19G3)expressly provides that a person is disqualified for election if he is amember of another Local Authority.
In Marlin Perera v. Madadombe 2, this Court held that the Writ willnot lie on the ground that an election of a member of a Local Authoritywas procured by general undue influence and/or general treating. Thusthere did not arise in that case the question whether or not the Writwill lie in cases where it is sought on the ground that a person is disqualifiedfiom membership by s. 9. The judgment states that ss. 9 and 10 makeit manifest that a person v/lio is disqualified by s. 9 cannot lawfully holda seat or office as a member of a Local Authority, and that the jurisdictionto oust such a person must undoubtedly' be exercised if a Court is satisfiedthat no alternative or effective procedure is provided by Statute Law.The arguments during the present beating did not establish that there issuch an effective "alternative.
For these reasons we made order declaring the election of therespondentto be null and void.
Thau other am, J.—I agree.
Application allotced.
>’ .
1 (1970) 73 N.L. R. 100.. ‘»(1969) 73 M. L. Jt. 25.' .
t ••—K 4550 (0/71) .■