H. N. O. FERNANDO, C.J.—A riyatilleke v. Kanakaratnam
Present: H. N. G. Fernando, CJ., and Wljayatilake, J.
P.O. ABIYATILLEKE, Petitioner, and
N.KANAKARATNAM and another, Respondents
0. 623168—Application for a Writ of QitoWarranto and Mandamus
Urban Council—Resignation of office by Chairman—Meeting of Council to elect newChairman—Failure of Assistant Commissioner to preside—Effect—UrbanCouncils Ordinance (Cap. 255), a. 17 (5)—Local Authorities Elections Ordinance(Cap. 282), s. 89—Quo warranto—Mandamus.
When a meeting of an Urban Council is convened for the purpose of eleoting aChairman in terms of section IT (5) of the Urban Councils Ordinance, thefailure to comply with the requirement that the Assistant Commissioner (andnot a person authorised by him) shall preside at the meeting would render themeeting invalid if the Court, upon an application for a writ of quo warranto,cannot be oertain that such failure has not affocted tho result of the eleotion.
Application for a writ of quo warranto and mandamus.
Nimal Senanayatte, with 8am SUva and H. W. Amerasinghe, for thepetitioner.
Rajaratnam, for the 1st respondent.
N.Sinnetamby, Crown Counsel, for the 2nd respondent.
Cur. adv. tntU.
October 30, 1969. H. N. 6. Febnando, C.J.—
The Chairman of the Hatton Urban Council resigned his office on 16thSeptember 1968. Thereupon sab-section (6) of Section 17 of the UrbanCouncils Ordinance, Cap. 266, required the Assistant Commissioner ofLocal Government to convene a meeting of the Council for the purposeof the election of a new Chairman, and in terms of that sub-section,the provisions of sub-section (1) of the same Section became applicable.Accordingly the Assistant Commissioner by notico dated 26th September1968, convened a meeting of the Council for 11th October 1968.
The concluding para, of sub-section (6) required that the AssistantCommissioner shall preside at this meeting until the election of the newChairman. On the day of the meeting however, the AssistantCommissioner was ill and unable to attend the meeting. He therefore
H. N. G. FERNANDO, C.J.—AriyatiUeke v. Kanakaratnam
purported, to authorise a person who has been referred to as an“ Investigating Officer ” to preside at the meeting. All the membersof the Council were present at the meeting except one member who is thepetitioner in the present case. The members who were presentunanimously elected the 1st respondent as Chairman.
The ground for the present application by the petitioner for a Writof Quo Warranto declaring invalid the election of the 1st Respondentis that the provision in sub-section (5) of s. 17, that the AssistantCommissioner of Local Government shall preside at a meeting held forthe purposes of electing a Chairman, is imperative, and that the meetingin this case was a nullity. There is some support in sub-section (2) ofs. 17 for the ground relied on by the petitioner. That section providesfor an adjournment of a meeting, if it cannot be held on the date fixedunder sub-section (I).
Counsel appearing for the Respondents had relied on certain decisionsholding that irregularities in regard to the holding of elections do notinvalidate the elections. The usual ground on which such decisionsrest is that the result of the election was not affected by the irregularity.The principle thus applicable is also stated in s. 69 of the Local AuthoritiesElections Ordinance, Cap. 262. The present case has however to bedistinguished. The petitioner has stated in his affidavit that he keptaway from the meeting because he was informed by th<s Secretary ofthe Council that the Assistant Commissioner would not preside at themeeting. The petitioner also states that he had intended to nominate aperson other than the 1st Respondent for election as Chairman. Iftherefore the Assistant Commissioner had in fact- presided at this meeting,the petitioner could in the exercise of his right as a member havenominated the name of some other person for election ; and it is impossibleto say what the result would have been if such a nomination had beenmade. If the election of the 1st Respondent had been contested, theother nominee may have been elected ; again, if the petitioner hadnominated a candidate, it is possible that the 1st Respondent may nothave been nominated. In these circumstances a Court cannot be certainthat the failure to comply with the requirement that the AssistantCommissioner should preside did not affect the result of this election.
For these reasons wc made order for the issue of the Writ of QuoWarranto, and for a Mandate directing the Assistant Commissioner toconvene another meeting for the purpose of electing a new Chairman.
Wuayatidake, J.—I agree.
P. G. ARIYATILLEKE, Petitioner, and N. KANAKARATNAM and another, Respondents