110-NLR-NLR-V-71-S.-DON-SIRISENA-Applicant-and-L.-G.-SIRIWARDENA-and-another-Respondents.pdf
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Don Siriaena v. Siriwardena
1967 Present: T. S. Fernando, A.C.J., and Siva Supramanlam, J.
S. DON SIRISENA, Applicant, and L. G. SIRIWARDENA and
another, Respondents
S. C. 428/66—Application for Mandates in the nature ofWrits of Quo Warranto and Mandamus under section42 of the Courts Ordinance
Urban Council—First meeting—Election of Chairman—Right of a member to proposehie own name—Urban Councils Ordinance (Cap. 265), as. 17, 18 (1)—LocalAuthorities (Election of Officials) Act No. 39 of 1951—Municipal CouncilsOrdinance No. 29 of 1947, s. 14 (4)—Village Communities Ordinance (Cap. 257),e. 19—Quo -warranto.
When the members of an Urban Council meet for the first time for thepurpose of electing a Chairman in accordance with the provisions of sections17 and 18 of the Urban Councils Ordinance, it is competent to a member topropose his own name for election as Chairman.
APPLICATION for writs of quo warranto and mandamus.
Nimal Senanayake, with Bala Nadarajah, Adda P. Abeyratne and
Senanayake, for the applicant.
Mervyn Fernando, Crown Counsel, for the 1st respondent.
N. R. M. Daluwatte, for the 2nd respondent.
Cur. adv. vull.
T. 8. FERNANDO, A.C.J.—Don Siriaena v. Siriwardena
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December 10,1967. T. S. Fernando, A.C.J.—
This application raises an interesting point relating to the election of aChairman of an Urban Council.
The applicant mid the 2nd respondent are members of the UrbanCouncil of Balangoda. The 1st respondent is the Assistant Commissionerof Local Government who is required by sub-sections (3) and (6) of section17 of the Urban Councils Ordinance (Cap. 266) to preside at a meetingof the Council convened by him for the purpose of electing a Chairman.It is common ground that such a meeting was convened for the 3rdOctober 1966, and that the 1st respondent did preside thereat.
So much of the proceedings at this meeting of the 3rd October 1966 asis relevant for the purpose of deciding the present application may nowbe noted. The name of the 2nd respondent for election as Chairman wasproposed and seconded respectively by two other members of the Council.The applicant then proposed his own name for election to the same officewhereupon the 1st respondent indicated to him that there may be no oneto second the proposal. Why the 1st respondent should have made aremark to that effect is not apparent, and the remark itself, I am free toobserve, was an imprudent one. However that may be, another memberof the Council did second the applicant’s name that had been proposed bythe latter himself. The 1st respondent then ruled that it was notcompetent to the applicant to have proposed his own name for electionas Chairman and held that the proposal was bad in law. The applicant’scandidature for office was therefore rejected. In the result the 2ndrespondent was declared elected without any contest on the basis thatthere was only one candidate proposed and seconded for election—videsection 18 (2) (a).
The question for determination by us upon the present proceeding iswhether the ruling referred to above made by the 1st respondent iscorrect in law. Section 18 of the Urban Councils Ordinance in its presentform was the result of an amendment of the relevant law introduced bythe Local Authorities (Election of Officials) Act, No. 39 of 1961. It was.an Act passed for the purpose, inter alia, of amending the law relating toLocal Authorities in order to make new provisions regarding the mode ofelection of the Mayors or Chairmen and the Deputy Mayors or Vice-Chairmen of such Authorities. Even before amendments were effectedby Act No. 39 of 1961, the relevant law so far as it affected the election ofa Mayor or a Deputy Mayor of a Municipal Council—(Vide section 14 (4)of the Municipal Councils Ordinance, No. 29 of 1947)—required theproposing and seconding of names of candidates for these two offices to bedone “ by any other Councillor ”. The 1961 Act did not seek to changethat part of the law. Indeed in the case of an election of a Chairman fora Village Committee, the law is analogous to that governing the electionof a Mayor of a Municipal Council. Section 19 of the Village Communi-ties Ordinance, No. 9 of1924, as amended by Act No. 39 of 1961 (Cap. 257),requires the proposing and seconding of a name of a member for election
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T. S. FERNANDO, A.C.J.—Don Sirisena v. Siritcardena
as Chairman to be done “ by any other member The Legislature,however, at the same time, although it had in contemplation before it thecorresponding provisions obtaining in the cases of a Municipal Counciland a Village Committee, appears to have departed from those provisionswhen it legislated for the cases of Chairmen and Vice-Chairmen of UrbanCouncils and Town Councils which are the other local authorities estab-. lished by law in this Country. In the case of these two local authorities,the provision relating to the proposing and seconding being done “ byany other Councillor ” or “ by another member ” was not included. Wecannot think that the distinction which the amending Act No. 39 of 1951introduced was anything but studied or deliberate, coming as it did at atime when the Legislature was making new provisions regarding themode of election of officials of all the local authorities of this Country.We have therefore to give effect to the apparently deliberate intention ofthe legislature. In that situation we need not attempt to ascertain anyreason for the distinction ; but we would like to observe that one reasonmay well be that the membership of an Urban Council or a Town Councilcan often be very small. Whereas the minimum number of councillorsfor the composition of an Urban Council and a Town Council is four andthree respectively, a Municipal Council or a Village Committee is composedof a larger number of members. Learned Crown Counsel, who hadmade some investigation in the relevant archives, did in fact bring to ournotice that this was the very reason that the draftsman of the legislationhad in mind, but, of course, we cannot make use of that knowledge inreaching our own interpretation of the written law.
Crown Counsel, appearing for the 1st respondent, was frank enough tostate that he could not support the ruling of the respondent at the meetingin question. Counsel for the applicant invited our attention to a passagein Crew’s standard work on the conduct of Public Company and LocalGovernment Meetings (1956,19th ed.) at p. 28 which I would like to quotebelow :•—
“ There is usually nothing to prevent a person proposing or secondinghimself as Chairman, though this course is undesirable ; in any event,he is entitled to vote for himself. ”
Any argument which could have been advanced on behalf of the 2ndrespondent based on the use by the legislature of the passive voice in thelanguage employed in section 18 (1)—“ any member may with his consentbe proposed is defeated by the action of that very legislature inobserving a distinction between the cases of a Municipal Council and aVillage Committee on the one hand and an Urban Council and a TownCouncil on the other. For the reason I have thus indicated, we did at theconclusion of the argument make absolute the order nisi which had alreadyissued from this Court so far as the application related to a mandate inthe nature of a writ of quo warranto, and we' quashed the election of the2nd respondent on 3rd October 1966 as Chairman of the Urban Council ofBalangoda.
Don Henry v. The Queen
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Mandamus has also been sought on tins application, but we do notthink it necessary for us to issue any mandate of that nature at thisstage. Now -that the election of the 2nd respondent has been quashed,we do not doubt that the 1st respondent or, if that be the case, hissuccessor in office, will proceed without delay to convene the necessarymeeting and proceed to election of a Chairman. Learned Crown Counselindicated to us that that would indeed be the advice that will betendered to the Assistant Commissioner of Local Government.
The applicant is entitled to the costs of this application to be paid inequal shares by the 1st and 2nd respondents.
Siva Supbamaniam, J.—I agree.
Order nisi made absolute.