077-NLR-NLR-V-26-PERERA-r.-RAJAPAKSE.pdf
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Present: T)e Sainpayo J.
PEBEBA r. BAJAPAKBE.Iu the Matter of an Application for a Writ of quo warranto inrespect of the Office of Chairman of the UrbanDistinct Council of Xegombo.
Writ of (|iiowuvranto—Discretionary writ—V ndtn■delay—Chairman
presiding over election meeting—Motion lapsing fur irant of a
seconder.
The jurisdiction of the Supreme Conn iu respect ,>f tui applicationfor u writ of gnu warranto is entirely discretionary, ;.nd in exercisingthat discretion any circumstance of undue delay must he takeninto consideration.
A person who presides at a meeting of an Crban District Council,summoned specially for the purpose, of electing u Chairman of tlieCouncil, may himself he elected Chairman.
Seinblr, a motion which has been defeated or which luts lapsedfor want of a seconder cannot he renewed at the same meeting.
A
X application for a mandate in the nature of quo warranto totest the legality of the proceedings of the Urban District
Council of Negombo, held on January 6, 1925, at which the respond*ent. Mr. A. K. Bajapakse, was elected Chairman. The respondentwas moved into tire chair to preside at the meeting. Then, a member,Mr. Banasinghe moved that the respondent be elected Chairman ofthe Council for two years. This was seconded. Mr. Herft proposedas an amendment that the petitioner, Mr. J. H. Perera, be electedChairman, but there was no seconder, and the motion fell through.Mr. Vijeyratnam then proposed that Mr. Banasinghe be electedChairman, whereujion Mr, Banasinghe begged to be excused. Mr.Yijeyratriam then said that, in view of Mr. Banasinghe’s refusal, lieseconded Mr. Herft's motion for the election of the petitioner.Objection was then taken by another member that Mr. ATjeyratnamwas out of order. Mr. Herft then said that he would again proposeMr. Pereras name. On an objection by Mr. Banasinghe, theChairman ruled that Air. Herft’s ifiotion could not be proposed again,and, as his name was the only one before the meeting* declaredhimself elected.
Allan Driebcnj. K.t*. (with Cooray and Amereseherc), for thepetitioner.—The respondent . should not have presided over themeeting when he knew that his mime was being proposed- asChairman. As President he would be called upon to rule on mattersarising in tin* course of the election. It is against the principlesof justice that a man should he judge in his own cause (Queen
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Owens *). It i* not correct to say that the proposal of Mr. Berftwas in the nature of an amendment. It was a substantive motionon the only matter before the house, via., the election of theChairman. It was not a motion limiting the previous oue. Itwas a distinct proposition. The remedy open to the applicant isone of a mandate in the nature of quo warranto (Application, for aMandamus on Chairman, Municipal• Council 2).
7f, Jj, Pereira (with him Canckaratne and U. I'. Pcrera). forrespondent.—The issue of the writ is purely discretionary. It willnot be exercised in case of delay or triviality (Muni fail Nahar r.Mywdad Hahamaii *).
No objection lias been raised by the proposer Mr. Herffc, whoacquiesced in the proceedings, when the minutes were confirmed.
DricbvY'j, K.C., in reply cited Henderston w. Bunt: of Australia.1Delay has been sufficiently explained.
April 0. 192."). De Sampayo J.—
The jurisdiction of this Court in respect .of applications for •mandates in the nature of quo ivarranto is? entirely discretionary,and any circumstance of undue delay must be taken into considera-tion. The election of the respondent as Chairman of the UrbanDistrict Council of Xegombo. 'which is intended to be attacked,took place, on January 6. 1925, and this application was not madetill February 20,1925. Accordingly, when (he papers were
submitted, this Court, while issuing notice on the- respondent,required the' petitioner to explain the delay. For this purpose thepetitioner has filed an affidavit dated March- 23, 1925. It is in*thefollowing terms:—
41 (1) I am the petitioner in the above application.
“ (2) I decided to move the Supreme Court to set aside theelection of Mr. A. E. Bajepakse as Chairman of the UrbanDistrict- Council, Xogombo, after consulting Mr. AdvocateRodrigo practising in Xegombo, who was instructed by myProctor Mr. S. C. Sansoni of Xegombo to draft thenecessary i>Hpers.
(H) 1 was thereafter advised to consult- senior counsel inColombo, and eventually retained Allan Drieberg, Esq..
K.C.
After eousoltation with Mr. Drieberg and''junior counsel inColombo. 1 handed the papers to Mr. Driebcrg's * clericto be filed at the Registry of the Supreme Court.
' 2 EUis a? EM*, SU.3 22 Val, W eekly Xote*, 001.
1 U013) IS A. L. X. 07.1 {MOO) U U is. CU. u. m
ms,
K'lMOftktt
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1925.
De SamvayoJ.
Pertr** <#.
“ (5) I was obliged to do so us I had not retained a praetor toact for me in Colombo.
*' (0) Owing to the remissnesx of the clerk which I was compelledto overlook, owing to my absence from Xcgombo onmedical advice, the papers were not filed till February 26.1925.’*
This is wholly insufficient to explain the delay in applying to thisCourt for the extraordinary remedy of quo warranto. When thematter came to trial, a period of three months had elapsed since theelection, the validity of which is questioned! In the interval .therespondent must have had to do various executive and administra-tive acts which, if called in question, may cause serious publicinconvenience, and unless there is some substantial ground otobjection, which ought to be considered in the public interest,notwithstanding the delay, the discretion of this Court should nobbe exercised.
j
When the facts are examined, it* will be found that practicallyonly matters of form and not of substance are .involved. Thepetitioner, Mr. John Henry Perera, was a member of the Urban•District Council of Negombo, and was on January 5, 1924, electedChairman of the Council. But in December, 1924. the Council wasdissolved, and a new general election took place on December 6. 1924.and at that election the petitioner, the respondent, and certain othergentlemen, whose names will transpire in the course of this judgment,were elected members of the Council. A special meeting of thenewly elected members was convened'for January 6, 1925, for thepurpose of electing a Chairman of the Council, and it is the proceed^ings of that meeting that are criticised now. The petitioner'scontention is that having been elected Chairman of the Council onJanuary 5, 1924, he continued to be Chairman, notwithstanding thedissolution of the Council itself in December, 1924, that he is legallyentitled to hold that- office till tlie end of 1927, and that, therefore,the election of the respondent as Chairman was wholly illegal andineffectual. This is put in the forefront of the present applicationto this Court, but-, as might be expected, counsel for the petitionerdid not press it at the argument*. The other grounds of objectionhave reference to what has been described as an irregularity in theproceedings of the meeting on January 6, 1925. The minutes ofthe meeting have been produced, and their accuracy is agreed upon.The respondent Mr. A. E. Rajapakse was moved into the Chairto preside at the meeting, Then Mr. Ranasinghe. moved thatthe respondent be elected Chairman of the Council for two years. Thi<was seconded, but Mr. Herft proposed as an amendment ''that thepetitioner, Mr. John Henry lYrera, be elected Chairman, but therewas no seconder, and the motion therefore fell through. Mr.Vijeyratnam then proposed that Mr. Ranasinghe be elected
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Chairman. This whs duly seconded, but was not proceeded withfurther, ns Mr. Ranasinghe begged to be execused. Mr. Vijey-i*atnam then said that, in view of Mr. Rauasinghe's refusal, heseconded Mr. Herft's motion for the election' of the petitioner.This was the beginning of the whole trouble, for another memberobjected that Mr. Tijeymtnafn was out of order, as Mr. Herft Vmotion had no seconder at the time, and was no longer before themeeting. '* Mr. Herft said in that case (I am here quoting fromthe minutes) he would again propose Mr. Perera’s name, and let Mr.Vijeyratnam second it.” An objection was raised by Mr. Rana-singhe, and the Chairman ruled that Mr. Herft's motion could not beagain proposed. I should myself say that a motion which has beendefeated, or which has lapsed for want of a seconder, cannotbe renewed at the same meeting. The Chairman’s ruling in thisinstance is not seriously questioned. At this stage, by the process ofelimination, the only name before the meeting for election asChairman of the Council wus that of the Chairman of the meetinghimself. He observed in the right spirit (I again quote from theminutes), ** he was placed in a peculiar position, but had to declarehimself elected as Chairman, therefore, Mr. Ranasinghe’s motionwas carried. The Chairman then thanked the meeting for electinghim and Mr. Per era- for his services during the past year.”
In view of these proceedings,* what was wrong in the election of therespondent as Chairman ? It is said that as soon as his name wasproposed, he should have left the Chair and ceased to take partin the proceedings. In that case, he would have had to leave themeeting altogether, because the only subject- for consideration atthat meeting was the election of a Chairman. 'So far as I am aware,the practice sometimes observed for the Chairman of a meeting tovacate the seat temporarily is not enjoined by law, but is a matterof taste and delicacy of feeling. Mr. Drieberg, for the petitioner,relies on the authority of Queen v. Owens (supra), which hadreference to the election of town councillors for a borough under anold Act. The Mayor who presided was also the returning officer,and it was held on an information in the nature of quo warrantothat the Mayor was precluded from being a candidate for electionas town councillor, inasmuch as acting as returning officer, he couldnot return himself. The Court applied to the case the principlethat no one should be judge in his own cause, and further observedthat the duties of "a- returning officer were not purely ministerial.I think that that decision is clearly distinguishable. A person whois voted into the chair to preside at a. meeting is not the holder ofan office, and much less occupies the position of a returning officer.The respondent was only a casual Chairman of the meeting, and hisduties as such are not affected because his name happens to be pro-posed for election as Chairman of the Council. In this connectionit is strongly urged that the respondent declared himself elected as
1925.
De Sampayo
J.
Perem r.
Rajapok^e
( 426 )
1925.
1>K riAMPAVu
J.
Per*** v.
ltojbpal'M
Chairman of the Council, and his election was his own declaration.This is not so. I have above quoted the whole relevant passage ofthe minutes. The language of the passage may not be perfect, butits meaning is clear. The Chairman in effect regretted that in thecircumstances which arose he had the unpleasant task of puttinghis own name to the meeting. But his election was not due to anydeclaration of. his own, but “ Mr. Banasinghe’s motion was carried,”which means and can only mean that the proposal to elect Mr.Rajapakse as Chairman was put to the meeting, and was carriedby the meeting.
The election was, therefore, a corporate act. In my opinion thereis no substantial objection to the election, and a sufficientfoundation has not been laid for the exercise of our discretion in thismatter.
On the ground of unreasonable delay and of the lack of real meritsin the application, the notice on the respondent must be dischargedwitli costs.
Hvle 4tlischargeil.