T. S. FERNANDO, J.—Eatnayake v. Haptiaratchi
Present: T. S. Fernando, J.P. RATNAYAKE, Petitioner, and H. E. HAPUARATCHI,
S. G. 15 of 1963—In the matter of an Application for a Mandatein the nature of a Writ of Quo Warranto under section 42 of
the Courts Ordinance
Quo warranto—Town Council—Election of Chairman—Allegation of disqualificationon the ground of want of residence—Burden of proof—Local AuthoritiesElections Ordinance (Cap. 262), s. 8.
The validity of the election of the respondent as Chairman of a Town Councilwas challenged on the ground that he was not a resident of the electoral areaof the Town Council on the 17th May, 1962. The only evidence adduced bythe petitioner consisted of two certificates issued by two persons seven monthsafterwards stating that, at the time when the certificates were issued, therespondent was not residing within the Town Council limits.
Held, that the material relied upon by the petitioner to show tbodisqualification of the respondent did not in fact establish any suchdisqualification. The onus of proof in such a case is on the petitioner.
PLICATION for a writ of quo warranto.
Prins Gunasekera, for the petitioner.
aS'. Nadesan, Q.G., with M. L. de Silva, for the respondent.
Our. adv. wit.
May 17, 1963. T. S. Fernando, J.—
This is an application for the issue of a writ bf Quo Warranto on theChairman of the Town Council of Polonnaruwa on the ground that hewas not qualified to be elected as a member for a ward of the said TownCouncil in that he was not, on the date of the commencement of thepreparation or revision of the parliamentary register for the time beingin operation for the electoral district of Polonnaruwa (which is therelevant electoral district within the meaning of section 8 of the LocalAuthorities Elections Ordinance (Cap. 262)) resident in any ward of theelectoral area of the said Town Council.
Counsel on behalf of the respondent has contended that the materialrelied upon to show the disqualification of the respondent does not infact establish any such disqualification.
T. 8. FERNANDO, J.—Ratnayake v. Hapuaratchi
It is common ground that the date of the commencement of thepreparation or revision of the parliamentary register concerned is the17th May, 1962. The petitioner’s affidavit—paragraphs 9 and 10—allegesthat the material in support of the disqualification consists of twocertificates, “ E ” and “ F ” issued respectively by the District RevenueOfficer of Tamankaduwa and the Village Headman. Certificate “ E ”is dated 24th December, 1962, and is in the following form :—
“ The Village Headman has certified that Mr. H. E. Hapuaratchi,the Chairman of Polonnaruwa Village Committee, is not residing withinthe Polonnaruwa Town Council limits.”
Apart from the circumstance that this certificate is based on hearsay,it purports to speak of the residence of the respondent as at 24th December,1962, which is more than seven months removed from the relevant date.Certificate “ F ” signed by the Village Headman is to the effect that“ the person named Hapuaratchige Emis Singho alias Emis Hapuaratchiis a permanent resident of No. 73B Kalinga Ela Thulane inMoraratenna”.Assuming that the village referred to in this certificate is not part of theelectoral area of the Polonnaruwa Town Council, it has to be observedthat this certificate is dated 25th December 1962. There is no document,therefore, to show where the respondent was resident on 17th May 1962.The onus of establishing that the respondent was not resident in oneof the wards of the electoral area of the Polonnaruwa Town Councilis, in my opinion, on the petitioner and he has failed to discharge that onus.
Learned counsel for the petitioner argued that, even if the certificates“ E ” and “ F ” are of no assistance in determining the residence of therespondent on the relevant date, there remains to be considered theaffidavit of the petitioner himself. If the affidavit of the petitionerhad remained bare there may have been some substance in thisargument, but the reasonable inference from the averment in theaffidavit is that it was made relying solely on the certificates as proofthereof.
Counsel for the petitioner finally requested that an opportunity begiven to him to adduce other evidence in order to substantiate the materialallegation. I found myself unable to accede to that request. Therespondent occupies a public office and, if his authority to function inthat office was intended to be seriously challenged in this court, thepetitioner should have provided himself with the necessary material.It would not, in my opinion, be a proper exercise of this court’sdiscretion to allow adjournments of an inquiry into an applicationto do so to assist indifferent litigants.
The application is dismissed with costs fixed at Rs. 250.
P. RATNAYAKE, Petitioner, and H.E. HAPUARATCHI, Respondent