032-NLR-NLR-V-75-R.-D.-N.-FERNANDO-Petitioner-and-D.-RANEPURA-Respondent.pdf
188
WEERAMANTRY, J.—Fernando v. Rancpura
1971Present : Weeramantry, J., and de Kretsar, J.
R.D. N. FERNANDO, Petitioner, and D. RANEPURA, Respondent
S.C. 767/70—Application for a Writ of Quo Warranto
Local authority—Disqualification for membership thereof—drama sevaka—Whetherhe is a “ holder of a public office "—Manner of appointment of public officers —Local Authorities Elections Ordinance {Cap. 262 ), s. 9 (1)—Declaration ofBritish Sovereignty Ordinance {Cap. o91), s. 10—Ceylon (Constitution) Orderin Council {Cap. 379). s. 60.
A grama sevaka is the holder of a public office within the meaning of section9 (1) of the Local Authorities Elections Ordinance. It cannot be contendedthat, by virtue of section 10 of the British Sovereignty Ordinance, a headmancannot be a public officer 6uch as is contemplated in the Ceylon (Constitution)Order in Council. The provisions of section 60 of the Order in Council havesuperseded any other provision that might have been contained in any priorenactment relating to the manner of appointment of public officers.
Accordingly, a person who was d lly elected as a member of an Urban Councilceases to be qualified to function as such member by reason of his appointmentto tho office of grama sevaka subsequently.
Application for a writ of Quo Warranto.
V. Tharmalingam, for the petitioner.
Nimal Senanayake, with Nihal Singareveiu, for the respondent.
August 11, 1971. Wbebamahtby, J.—
The Petitioner seeks a writ of Quo Warranto in respect of therespondent’s membership of tho Urban Council, Peliyagoda.
WEERAMANTRY, J.—Fernando v. Ranepura
189
The petitioner concedes that the respondent was duly elected to thisCouncil to represent Ward No. 2 at an election held on December 31st1968, but contends that he ceased to .be qualified to function as a memberby reason of his appointment to the office of grama sevaka on July12th 1970.
In support of his contention that the respondent has been appointedgrama sevaka, the petitioner has filed marked “ A ” a letter from theGovernment Agent giving the name and address of grama sevakaNo. 212 as D. N. Ranepura of 211, Walpola, Batuwatte.
At an earlier stage in this case, some question would appear to havearisen in regard to the genuineness of the Government Agent’s letter,and the Court had directed the Registrar to inquire whether this letterwas written with the authority of the Government Agent. TheGovernment Agent has replied in the affirmative, and we proceed uponthe basis of the correctness of the information contained in this letter.
Now, the main point taken by the respondent is that his name, asgiven in the petition, is Dayaratne Ranepura, whereas the person whoholds the office of Grama Sevaka is D. N. Ranepura. The respondentstates, on this basis, that the petitioner has failed to establish that he(the respondent) holds office in this capacity. However, upon thematerial before us it is clear that a person with the Bame surname andthe same initial as the respondent holds the office of grama sevaka.There is nothing inconsistent or contradictory in the two' forms ofdescription and it may well be that the initial D stands for Dayaratneand the initial N is that of another name which is not always repeatedwhen.the first name is mentioned in association with the surname.
However that may be, the person best aware of this difference innames, if difference there be, is the respondent himself, and though hedenies that he holds office as grama sevaka, he has, for reasons we failto appreciate if in fact his name is different, failed to file an affidavitto this effect.
We have intimated to learned Counsel for the respondent that wewould afford him an opportunity even at this stage to file affidavit tothat effect if his position is that the respondent’s name is different fromthat of the Ranepura referred to in the Government Agent’s letter Midthat he does not hold office as grama sevaka. No application has,however, been made on the basis that the respondent proposes to filesuch an affidavit.
In the result the material before us in the absence of any contrarymaterial furnished by the respondent is sufficient to satisfy that therespondent does hold office as grama sevaka and we have no alternativebut to proceed on this basis.
The next , question argued before, us was a question of law, namely,that the office of grama sevaka is not a publio office within the meaningof Section 9 (1) of the Local Authorities Elections Ordinance.
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WEERAMANTRY, J.— Fernando v. Ranepura
In support of his contention that a grama sevaka is not a holder ofa public office under the Crown within the meaning of this Ordinance,Mr. Senanayake has referred us to the Declaration of British SovereigntyOrdinance (Cap. 391) which provides that no person shall be consideredentitled to hold office either of the higher or lower class of headmen,unless thereto appointed by written instrument signed in respect tosuperior chiefs by His Excellency the Governor and for inferior headmenby the Honourable the Resident or provisionally by any Agent ofGovernment thereto duly authorised. Mr. Senanayake submits that thisprovision is still in force, not having been repealed or amended since itsenactment, and that grama sevakas therefore must even today receivetheir appointments in terms of that section.
He submits that in the absence of a definition of the term “ PublicOfficer ” in the Local Authorities Elections Ordinance, we should guideourselves by the definition of “ Public Office ” and “ Public Officer ”contained in the Ceylon (Constitution) Order in Council.
According to the Order in Council a “ Public Officer ” means anyperson who holds a paid office, other than a judicial office, as a servantof the Crown in respect of the Government of the Island. He submitsthat this definition read along with Section 60 means that such PublicOfficer should be appointed by the Public Service Commission.
Inasmuch as the Declaration of British Sovereignty Ordinance requiresappointment of Headmen to be made by the authorities stated therein,he contends that the Public Service Commission cannot make a validappointment to the office of grama seyaka and therefore a headman isnot a Public Officer such as is contemplated in the Ceylon (Constitution)Order in Council.
We may state at the outset that we are not in agreement withMr. Senanayake’s contention that even at this point of time the appointmentof headmen should be made under Section 10 of the Declaration of BritishSovereignty Ordinance. It seems quite clear from the very phraseologyof Section 10 of that Ordinance that that provision has no applicationto present conditions. It postulates appointment by the Honourablethe Resident and this is a condition which quite manifestly cannot besatisfied today when such office has ceased to exist. It seems quiteclear that the provisions of Section 60 of the Order in Council supersededany other provision that might have been contained in any priorenactment relating to the manner of appointment of Public Officers.
Consequently, even if appointment by the Public Service Commissionbe a pre-requisite to a person being a Public Officer, we consider that inthe present case that requirement has been satisfied.
We are-.of the view that there is no merit in the submission that byvirtue of the Declaration of British Sovereignty Ordinance a gramasevaka cannot be a Public Officer within the meaning of Section 9 (1)of the Local Authorities Elections Ordinance. It seems beyond argument
WIJAYATILAKE, J.—Allis v. Nandawathie
m
that a Headman holds a paid office other than a judicial office as aservant of the Crown in respect of the Government of the Island andis therefore quite clearly disqualified from membership of a localbody.
For these reasons we allow the petitioner’s application with costsand declare that the respondent is disqualified by reason of his appoint-ment from membership of the Urban Council in question.
de Kbetseb, J.—I agree.
Application allowed.