NUGAWELA v. RATWATTE et al

130-NLR-NLR-V-39-NUGAWELA-v.-RATWATTE–et-al.pdf


466
Nugawela v. Ratwatte.
1937Present: Maartensz J.
NUGAWELA v. RATWATTE et at..
In re Application for a Writ of Quo warranto^
Buddhist Temporalities—Election -for the office of Diyawadana- Nilame—•Requirement to summon a meeting within two months only directory—Extension of time not irregular—Right of person summoned in several-capacities to more than one vote—Atamasthana Committee entitled toone vote—Jurisdiction of Court—Ordinance No. 19 of 1931, ss. 7 (2),
9 ill. and 33.
The provision in section 7 (2) of the Buddhist Temporalities Ordinancethat when a vacancy occurs in the office of Diyawadana Nilame the PublicTrustee shall within two months of such occurrence summon a meeting to-fill the vacancy is merely directory and a meeting held after such period isnot invalid.
Where a person summoned to 'such a meeting is present in more thainione capacity he is entitled to one vote only.
The Atamasthana Committee which is the trustee for the Atamasthanais entitled only to one vote for the purpose of the election of a DiyawadanaNilame.
. Semble.—The provisions of the Civil Procedure Code with regard to thejurisdiction of the District Court are not applicable to applications undersection 33 the Buddhist Temporalities Ordinance.
I
N terms of section 7 of the Buddhist Temporalities Ordinance, 1931.
the Public Trustee issued notices on April 19 to the electors entitledto vote at the election for the office of the Diyawadana Nilame whichbecame vacant on March 25, 1937, to attend a meeting to be heldin Kandy on May 22. Since May 22 was proclaimed a public holiday,the Public Trustee thought it necessary to postpone the meetingfixed for that day. He moved the District Court of Colombo on May 18to extend the time within which the meeting for the election wasto take place and informed the electors that the election was postponedfor July 3. He further issued fresh notices on May 31 to the electorssummoning them to a meeting on July 3.
At the meeting held on July 3, the petitioner and the first respondentwere, proposed and seconded for appointment to the office of DiyawadanaNilame. At the ballot the first respondent had 45 votes and the petitioner-42 votes. Five ballot papers were at first rejected, but on a scrutiny itwas found that three of them were for the petitioner and one for the firstrespondent. Hence the first respondent was declared elected. The-petitioner prayed for a mandate in the nature of a quo warranto to test thevalidity of the election of the first respondent to the office of DiyawadanaNilame.
“Hay ley, K.C. (with him E. B. Wikiramanayake and B. H. Aluwihare),for the petitioner.—Under section 7 of the Buddhist Temporalities-Ordinance, 1931, on the death of the Diyawadana Nilame, the PublicTrustee must summon the persons indicated in section 7 (2) to elect aDiyawadana Nilame. He must summon them within two months.
[Maartensz J.—^Should the meeting be held within two months- orthe summons be issued within that time ?J
Nugawela v. Ratwatte.
467
The meeting must be held within that time.„
The Public Trustee summoned a meeting for May 22. Because the■Government declared that day to be a holiday, he postponed the meeting.Section 33 of the Ordinance empowers a Court to extend the time fixed forthe holding of the election.
Now Court is defined in section 2.
The District Courts have no jurisdiction with regard to elections. TheSupreme Court exercises jurisdiction by way of Mandamus or Writs.
[Maartensz J.—Does not section 33 imply that the District Courtshave jurisdiction ?]
There are various duties imposed on the Public Trustee. Section 64 ofthe Courts Ordinance, 1889, defines the jurisdiction of the District Courts.
There is no authority in this case to postpone the meeting. TheDistrict Court of Colombo has no jurisdiction where the office is to be heldin Kandy.
On May 31 he issued notice that a meeting would be held on July 2.
Regulations relating to elections must be strictly adhered to. He mayhave made an application to the proper Court. No one can extend thetime.
There is no provision in the Ordinance for the closing of the voting. InMunicipal Council and State Council elections the voting takes placewithin a specified interval of time. In the absence of any limitation, aslong as the voters are present^ they must be given a chance to vote. The■counting takes place immediately after the voting.
Section 7 (3) (a) of the Ordinance provides that “ every person ” dulysummoned and present at the meeting shall have a vote. Now accordingto the definition of “ every person ” in The Pharmaceutical Society v. TheLiondon and Provincial Supply Association1, and section 3 of the Inter-pretation Ordinance, 1901, a person who is summoned as trustee of twotemples have >two votes. Different bodies may elect the same trustee,but they may require the votes to be given differently. It is inconceiv-able to think that each body should have a fraction of a vote. If there wasany intention to prevent plural votes, it must be definitely stated. Wefind that a person is qualified to vote for several electorates in a Municipalelection. At . by-elections he can vote at every by-election, but at ageneral election he can vote for one electorate only. (Knill v. Towse *.)
Section 9 (1) of the Ordinance says that there shall be three trusteesfor the Atamasthana Committee. It is not proper for the PublicTrustee, as Chairman, to say that some need not vote as others hadvoted for them.
[Maartensz J.—The three persons form one trustee, all cannot vote.They must decide who should vote.]
The secret ballot disappears then.
[Maartensz J.—No, elect a person to vote. That person can votein favour of any candidate he prefers.]
The general principles applicable in case of irregularities are given in '12 Halsbury (1st ed.), p. 322, para. 624 ; 12 Hals. (Hailsham ed.), p. 304,para. 592.
» (1S80) S A. C; SSI at 861 ; 49 L. J. Q. B. 732 at p. 738.
• {1890) 24 Q. B. D. 186 ; 39 L. J. Q. B. 433.
468
Nugawela v. Ratwatte
H. V. Perera, K.C. (with him R. C. Fonseka and J. R. Jayewardene), forthe first respondent.—The remedy asked for is an extraordinary one andthe Courts must look into all the attending circumstances before allowingit. (Short on Mandamus (1887 ed.) pp. 122,149-150.)
The application for the writ of quo warranto is limited. (9 Halsbury. (Hailsham ed.) p. 805.) The office of Diyawadana Nilame is not createdby statute. The position of the Diyawadana Nilame is the same as thatof any other trustee. In incumbency matters, no quo warranto lies, butthere is a regular action. (In re Adam’s Peak case, D.. C. Ratnapura,9,353, Vand., p. 215). The Crown reserved the right of removal to prevent,abuse. The Ordinances regulate the election only. Sections 17 and 18 ofOrdinance No. 3 of 1889 regulated the election of Trustees of DistrictCommittees. Dalada Maligawa was not a temple within the meaninggiven therein. That Ordinance was replaced by Ordinance No. 17 of1895 and No. 8 of 1905, and how by the present one. The office inquestion is not created by law. The statutes merely regulate the election.
[Maartensz J.—The Municipal Offices are created by statute.]
So are the offices in the Tea and- Rubber Control Departments. Thereis no usurpation of any right of the Crown. No quo warranto liesagainst a church trustee or warden.
Quo Warranto applies where there was a direct usurpation. (Darley v..The Queen1; The King v. Speyer, The King v. Cassel2.)
The time “ two months ” in section 7 (2) is merely directory—Stroud’sJudicial Dictionary. The notice sent on May 31 is superfluous.
[Maartensz J.—If without a notice from the Public Trustee, theelectors meet and elect. What happens then ?]
The election is perfectly valid. There is an Ordinance with regard tothe Maradana Mosque, but no quo warranto lies. In England it lies in.the case where there is an usurpation of the royal functions. If theposition of the, petitioner is correct a quo warranto lies in the case of allBasnayakes.
[Maartensz J. referred to Encyclopedia of the Laws of England,.vol.XU.,p.l91.]
Every charitable trust is a public matter. In that sense a trustee is apublic officer. Those trusts are created by private individuals, but theKing is the protector. This is nothing but a religious trust. It was heldunder the Crown during the times of the Ceylon Kings.
[Maartensz J.—As there was no one to appoint the trustee, anOrdinance was passed?]
Merely because an Ordinance was passed to regulate the election, it does'not mean that the office was created by the Legislature.
Section 33 of the Ordinance presupposes a District Court havingjurisdiction. There must be a conferment of jurisdiction. The Ordinanceis silent as to the powers to be exercised by the District Court.
Now the electors are persons holding certain offices. If the holders ofthese offices are Christians, they have no vote—section 40. If any of thepersons mentioned in section 7 (2) is a tenant, lessee; or servant of the-Dalada Maligawa, he cannot vote—section 43a. This shows that the-
1 (1845) 12 Clerk and Finnelly 520.
1 (1918). 1 K. B. 595..
469
Nugawela v. Ratwatte.
election is done by the persons and not by institution^. It may be thatone person may hold more than one office, but he will be entitled for onevote only, unless plural votes are given by the Ordinance.
[Maahtensz J.—Why could not they have two votes ? They weresummoned as different persons ?]
Section 7 (3) (a) is clear. A committee of electors is formally electedThe committee must have certain qualifications. The disqualificationsare personal. If the elector is merely the holder of an office, it isimmaterial whether he is a Christian. The section says that a personpresent votes. The institutions cannot vote.
The Public Trustee acting quite honestly proceeded to the election.A person having acquiesced cannot ask for another vote. He cannotnow object to the election. (Short on Mandamus, p. 1'51.)
Where the Public Trustee acted in a quasi-judicial capacity, a Court,must not interfere with his decision by a quo warranto.
His decision is final in the absence of any provision as to appeal's;—Short on Mandamus, p. 133.
E. A. L. Wijeyewardene, Solicitor-General (with him R. R. CrossetteThambyah, C. C.) .'Tor the second respondent.—The office of DiyawadanaNilame was an office under the Crown during the times of the SinhaleseKings. When Ceylon was ceded all the rights of the ancient Kings passedto the Kings of England. , The Queen did not waive her rights. Shemerely did not exercise them. The Supreme Court held in Adam’s Peakcase1 that the Queen could remove a person from office. The 1889Ordinance was then passed. As there was a doubt whether the DaladaMaligawa was a temple, .the amending Ordinance No. 7 of 1895 was-passed. The 1905 and the 1931 Ordinances followed.
The present Ordinance says that the property is vested in the trustee:It is an office newly created, but the ancient name is retained. TheDiyawadana Nilame is merely the trustee—section 7 (1).
With regard to the interpretation of section 7, it must be analysed tofind out whether the vote is given to the institution or the person. TheRatemahatmaya represents the villages. If they are entitled to vote asan holder of an office, why should the villagers’ right be deprived whenthe Ratemahatmaya, who is appointed by Government, is a Christian.
[Maahtensz J.—In sections 7 (2) (a) and (b), they are institutions ?]
Consider the case of section 7 (2) (d), for example the Basnayake Nilameof Saman Devale. He may be a lessee of lands belonging to Dalada Mali-gawa. He is not entitled to a vote then. In that case the Devale hasno vote. What the Legislature intended to do is to give the right toprominent Buddhists among the Kandyans. It is not that the templewas represented.
The Maha Nayakes do not represent any temple. They are twopersons. So are the Adigars and Dissawes and the Ratemahatmayas:They do not represent institutions. If we treat these persons asrepresentatives of institutions, then there is a mixture of two- things;but if we take the view that it is only the person who votes, it is applicableto every one.
1 Vand., p. SIS.
470
MAARTENSZ J.—Nugatoela v. Ratwatte.
Hay ley K. C., in reply.—Although the Solicitor-General had concededthat the Diyawadana Nilame is an office created by the Crown, thefallacy of respondent’s Counsel’s argument is based on the word“ created Originally he _ was a servant of the king.
The history of quo warranta is given in Encyclopedia of the Laws ofEngland, vol. XII.; Darley v. King This Court can issue mandates in thenature of quo warranto. Van Leeuwen (Kotze’s trans., 2nd ed.), vol. II.,pp. 423 and 424.
Acquiescence does not exist in statutory elections—Rogers on Elections,vol. II., p. 69 19th ed.).
There was no opportunity to take objections. The Public Trustee isnot given any judicial jurisdiction. All he is expected to do is to presideat the meeting.v
There is no provision as to the close of the poll—Rogers on Elections,vol. II., p. 108.
The Public Trustee has no right to close till all have voted; at least heshould have declared that the poll will be closed a few minutes before theclose of the poll. The Court can order a new election on the ground ofirregularity.
Cur. adv. vult.
September 21, 1937. Maartensz J.—
This is an application for a mandate in the nature of a writ of quowarranto to test the validity of the election of the first respondent to theoffice of Diyawadana Nilame. The second respondent is the PublifcTrustee who presided at the meeting at which the first respondent waselected to the office.
The matter comes before me upon cause being shown by the respondentsagainst the order nisi issued upon them being made absolute.
The main facts are not in dispute and are as follows :—
The last holder of the office of Diyawadana Mlame died on March 25,
1937.
The procedure for the election of a Diyawadana Nilame when a vacancyoccurs is prescribed by the Buddhist Temporalities Ordinance, 1931.In' terms of section 7 of that Ordinance the Public Trustee issued, noticeson April 19, to the persons mentioned in section 7 (2), (a), (b), (c), (d),and (e) to attend a meeting to be held in Kandy on May 22, 1937.
The 22nd of May was proclaimed a public holiday and the PublicTrustee thought it necessary to postpone the meeting fixed for May 22,and to issue notice? summoning another meeting.
Section 7 of the Ordinance provides that the Public Trustee shallsummon a meeting within two months of a vacancy occurring in the office,and as it was not possible to hold the meeting within that period he movedthe District Court of Colombo on May 18, 1937, under the provisions ofsection 33 (b) of the Ordinance to extend the time for holding the meeting.He was granted four months time from March 25, 1937. On the samedate (May 18, 1937) he issued notices to the persons summoned for. May 22,that the meeting was postponed for July 3, 1937. On May 31 he issuedfurther notices to the same persons summoning them to a meeting atKandy on July 3.
1 (1845) 12 Clerk and FinneUy 520.
MAARTENSZ J.—Nugawela v. Ratwatte..
471
At the meeting held on July 3, the petitioner and the first respondentwere proposed and seconded for appointment to the office of DiyawadanaNiiame. A ballot was held, and, on a count being taken, it was foundthat the first respondent had 45 votes and the petitioner 42 votes. Fiveballot papers were at first regarded as spoilt as the number of the candidatewas not written on the face of the paper. On further examination thenumber was found written on the backs of four of the papers. Three of'these were in favour of the petitioner, and the other in favour of the firstrespondent. The first respondent had one vote more than his opponent,and was declared appointed Diyawadana Niiame.
The first objection taken to the appointment was as regards the date ofthe meeting. It was contended that the election was bad as the meeting-was held more than two months after the death, of the late DiyawadanaNiiame. It was urged in support of this contention that a District CourthaTi rib jurisdiction under section 33 of the Ordinance to extend the timefixed by section 7, and that at all events the District Court of Colombo-had no jurisdiction to make the order ; the Court, if any, which hadjurisdiction being the District Court of Kandy.
The objection is based on the terms of section 7 of the BuddhistTemporalities Ordinance, 1931, which enacts—I quote the relevantpassage—that “ Whenever a vacancy occurs ih the office of theDiyawadana Niiame the Public Trustee shall within two months of suchoccurrence summon to a meeting at Kandy—”.
1 do not propose to discuss the objection, which was not stronglypressed, at length, as I am of opinion that the words relied on are merelydirectory and that a meeting held after the prescribed time is not invalid..The cases on this point are collected on page 321 of the 7th edition ofMaxwell on the Interpretation of Stdtutes.
I think I should point out with reference to section 33 that the Ordinance,,though it defines Court as meaning the District Court having jurisdiction;in the matter in question, does not define the term jurisdiction, and it Isimpossible to say what is meant by the definition of the term Court.
The provisions of the Civil Procedure Code with regard to the-jurisdiction of a District Court are obviously inapplicable to the appli-cations which are contemplated by the provisions of section 33.
The next objection to the election was that certain electors who wereentitled to more than one vote were only allowed one vote. The questionwhich arises from this objection is whether a person summoned" to ameeting under the provisions of section 7 is only entitled to one votealthough he may be present in two capacities. The determination of thisquestion depends on a construction of the terms of section 7.
By section 7 the right of electing a Diyawadana Niiame is vested in—
(a) the Mahanayaka Theras of Malwatte Vihare and Asgiriya Vihare ;
– (b) the Adigars and Dissawes being Kandyans ;
the Katemahatmayas holding office within the Kandyan Provinces ;
the Basnayaka Nilames of all Dewales situated within the Kandyan
Provinces ; and
the trustees of all temples within the Kandyan Provinces of which
the annual income during the three preceding years is estimated'by the Public Trustee at over one thousand rupees ;
39/35
472MAARTENSZ J.—Nugawela v. Ratxoatte.
to each of whom must be sent a written notice addressed to the last knownplace of abode of such person.
The petitioner affirms that eight of the persons present at the meetingwere summoned there in two capacities. Their names and offices are setout in paragraph 10 of his affidavit.
As the election was by a majority of one, I need only refer to two ofthem who actually claimed to have a right to two votes. They are :(1) Mr. P. B. Bulankulame who claimed to have two votes, one in thecapacity of Dissawa and the other as Ratemahatmaya of Nuwaragampalata ; and (2) Mr. J. C. Ratwatte who claimed two votes, one as Adigarand the other as Basnayake Nilame of the Maha Dewala.
These claims were put forward after the Public Trustee had declaredthe poll closed.
The Public Trustee did not reject the claims on the ground that thepoll was closed, but ruled that under sub-section 3 of section 7 they hadonly one vote each.
Sub-section (3) (a) provides as follows:—“The Public Trustee shallpreside at such meeting and every person duly summoned and presentthereat shall have a vote at every ballot to fill the said vacancy. Suchballot shall always be secret.”
It was contended on behalf of the petitioner that the ruling of thePublic Trustee was incorrect. It was argued in support of this contentionthat sub-section (3) of section 7 contemplates two classes of voters, namely,the institutions mentioned in sub-clauses (a), (d), and (e), and the holdersof the offices mentioned in sub-clauses (b) and (c). Accordingly where aperson was entitled to vote as representative of an institution and in histown right as the holder of one of the offices mentioned in the sub-section,he was entitled to two votes. The result of the Public Trustee’s ruling,it was submitted, was to deprive either the institution or the holder of theoffice of a vote.
There is some force in this contention. But an institution cannot vote ;the vote must be cast by an officer of the institution. Now the person orpersons responsible for the enactment of section 7 must have been awareof the possibility of the person representing the institution being alsoentitled to vote as the holder of one of the offices specified in sub-clauses (b)and (c), and if it was the intention of the legislature to give that person theright to cast two votes, I should* have expected provision to that effect in•the Ordinance. So far from such provision being made, sub-section (3)enacts, that every person duly summoned and present shall have a vote,that is to say, one vote and no more. I am of opinion, in view of the.terms of the sub-section, that, the ruling of the Public Trustee was rightand must be upheld.
The next objection is based on the terms of this sub-section. Thepetitioner states in his affidavit that the Public Trustee refused to allow•two members of the Atamasthana Committee, who were present, to-vote.
. The term “ Atamasthana ” means “ the eight sacred sites ofAnuradhapura. These according to the decision of the Atamasthana
MAARTENSZ J.—Nugatoela v. Ratwatte.
473
Committee in 1909, are : (1) Bomaluwa, (2) Lowa Maha Paya, (3) Ruwan-weli Seya, (4) Abhayagiri Vehera, (5) Thuparama, (6) Jetawanarama,(7) Lankarama, and (8) Mirisawetiya ”—I quote from the Glossary ofNative, Foreign, and Anglicized Words, compiled by H. W. Codringtonof the Ceylon Civil Service, page 5.
The definition of the term “ Temple ” in section 2 of the Ordinanceincludes the Atamasthana of Anuradhapura, and the term “Trustee”includes the Atamasthana Committee.
This committee is composed of three persons nominated (under theprovisions of section 9 (2) ) by (o) the Nayaka Thera for the time being ofthe Bomaluwa; (b) the head of the Nuwarawewa family for the timebeing ; and (c) the Mahanayaka Theras of Malwatte Vihare and AsgiriyaVihare and the Nayaka Thera of Sripadasthana by a majority,respectively.
Section 9 (1) provides that “the trustee for the Atamasthana shall bethe Atamasthana Committee—
The Public Trustee in his affidavit denies that he refused to allow theother two members of the Atamasthana Committee to vote at theelection.
His statement of what took place is set out in paragraph 11 as follows :—“Referring to paragraphs 11 and, 14 of the petitioner’s affidavit I admitthat the Atamasthana Committee which is the trustee for theAtamasthana consists of three persons. The said committee by a writingdated July 2, 1937, and handed to me at the said meeting, authorised anddeputed one P. B. Bulankulame, member and chairman of the saidcommittee, to cast the committee’s vote on behalf of the said committeeat the said election. A copy of the said writing- is annexed hereto andmarked 2R4. The said P. B. Bulankulame was accordingly given aballot paper. I specifically deny that I refused to allow the other twomembers of the Atamasthana Committee to vote at the said election. Itis, however, correct that whilst the voting was in progress, one of thebhikkhu members of the said committee approached the officer issuing theballot papers and produced^ the copy (sent to him for his information) ofthe notice issued to the Atamasthana Committee, the trustee for theAtamasthana. I explained to him at this stage that it was not necessaryfor him to put himself to the trouble of voting as he had given thechairman of his committee written authority to cast the vote on behalfof the Atamasthana Committee. He agreed and did not ask.ipr a ballotpaper or claim a right to vote at the election. I affirm that when thisincident occurred the chairman of the Atamasthana Committee ,-hadalready voted.”’
This statement was not challenged and clearly no formal claim to votewas made by the two members of the committee who, the petitioneralleges, were not allowed to vote.
According to this statement it would appear that the AtamasthanaCommittee was summoned to the meeting and a copy of the notice was-sent to each member of the committee for his information.'
¥74
MAARTENSZ J.—Nugavoela. v. Ratioatte.
The document 2R4, which is as follows:—
Anuradhapura, July 2, 1937.
Mr. P_ B. Bulankulame, member and chairman of the AtamasthanaCommittee, is hereby authorised and deputed to cast the committee’svote on behalf of the said Atamasthana Committee at the meeting for•the election of a Diyawadana Nilame to be held at Kandy on Saturday,July 3, 1937.
Sgd. H. Dewamitta,
Sgd. H. Rewata,
Members, Atamasthana Committee.
Received to-day.
Sgd. A. G. Ranasingha,
Public Trustee.
July 3, 1937.
shows that the members of the committee took the view that they werenot each entitled to vote and authorised the chairman to cast the vote ofthe committee. I am of opinion that' so far as the election of aDiyawadana Nilame was concerned, they were right.
It was argued that if a person appoints A, B, and C his trustee, it is the•same as saying that he appoints them his trustees. But that is not thephraseology of section 9 which says that the trustee shall be the committee,.and then goes on to provide that “ the said committee shall elect one oftheir number as chairman, its quorum shall be two and in the case of anequal division of votes at a meeting the chairman shall have a second orcasting vote ”.
The Buddhist Temporalities Ordinance, No. 8 of 1905, section 5,provided that the Atamasthana Committee shall consist of six members,-and by section 17 the trustee was appointed by this committee. In thecase of other temples the trustees were appointed by the District■Committees created by the Ordinance.
The Ordinance of 1931 substituted the Committee as trustee instead ofvesting the committee with the right of electing a trustee, which confirmsmy view that the trustee was the committee and not each member of it.I repeat, for the sake of emphasizing what I have already said, that thisopinion is limited to the question I have to decide, namely, whether thiscommittee had one vote or three votes for the purposes of the election of aDiyawadana Nilame.
I think accordingly that this objection must be overruled on two■grounds : (1) because the Public Trustee did not in fact refuse to allowthe two members of the committee to vote, and (2) because the committee"had only one vote for the purpose-of the election in question.
In view of my rulings on the objections raised by the petitioner to thevalidity of the election, it is unnecessary for me to discuss Mr. Perera’scontention that the remedy by quo warranto was not available to thepetitioner because (a) the office of Diyawadana Nilame was not createdby charter from the Crown or by Statute, (b) the Public Trustee wasexercising a judicial function which he was appointed by law to discharge.
. I discharge the rule with costs.
Rule discharged.