009-NLR-NLR-V-76-S.MURUGESU-Petitioner-and-V.-ANANDASANGARY-Chairman-Town-Council-Killinoch.pdf
Murugeeu v. Anandasangary
1968 Present: H. N. G. Fernando, C.J., and Sirimane, J.
S. MURUGESU, Petitioner, and V. ANANDASANGARY(Chairman, Town Council, Killinochchi) and two others,RespondentsS. C. 106-108 of 1968—Applications for Mandates in the nature ofWrits of Quo Warranto
Town Council—First general election of members—Disqualification ofa member of any other local authority for membership—Memberof a Village Council—Resignation of office by him after nominationday—Ineffectiveness—Town Councils Ordinance (Cap. 256),ss. 2, 3, 7—Local Authorities Elections Ordinance (Cap. 262), asamended by Act No. 9 of 1963, ss. 9, 28—Village CouncilslOrdinance (Cap. 257), ss. 5, 8, 8A, 14—Quo warranto.
A candidate at a general election which is held in terms of section7 of the Town Councils Ordinance, when a part of a Ward of aVillage area becomes a Ward, or part of a Ward, of a new TownCouncil, is disqualified by section 9, read with section 28, of theLocal Authorities Elections Ordinance to be elected if, on the dateof his nomination, he is a member of any other local authority.If the local authority happens to be a Village Council, resignationby the candidate of his office in terms of section 14 of the VillageCouncils Ordinance would not avail him if the resignation istendered after the Nomination day and just before the polling day.
S. Sharvananda, for the petitioner in all three applications.
G. G. Ponnambalam, Q.C., with E. R. S. R. Coomaraswamy,
M.Shanmuganathan, M. Sivanandan, Motilal Nehru andC, Chakradaran, for the respondents.
Cur. adv. vult.Applications for writs of Quo Warranto.
61
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H. N. G. FERNANDO, C.J.—Murugesu v. Anandaaangary
June 25, 1968. H. N. G. Fernando, C.J.—
By Order under Section 2 of the Town Councils Ordinance(Cap. 256) the Minister declared a certain area to be a Town forthe purpose of that Ordinance, and in consequence, s. 3 requireda Town Council (hereinafter referred to as the Killinochchi TownCouncil) to be constituted for the new town. Thereafter, interms of s. 7, a General Election was held for the purpose ofelecting the first members of the Killinochchi Town Council.
The holding of such an election is regulated by the LocalAuthorities Elections Ordinance (Cap. 262) and requisite noticeswere published for the nomination of candidates for the firstGeneral Election, and for the holding of the poll for the Wardsof the Council on 13th January 1968. The three persons who arenamed as the respondents respectively to each of the threepresent petitions were each nominated for election for one ofthe Wards of the Killinochchi Town Council; and each of them,having secured a majority of the votes at the poll, was declaredelected for the Ward which he contested. In each of the presentpetitions application is made for a writ of Quo Warrantodeclaring that the respondent in each instance was not dulyelected on the ground that he was at the time of the electiondisqualified for such election.
Section 9 of the Local Authorities Elections Ordinanceprescribes the disqualifications for membership of a TownCouncil. By reason of an amendment effected by Act No. 9 of1963, a person is disqualified to be elected at any time as amember of any Local Authority “ if at that time he is a memberof any other Local Authority ”. In the case of the respondent toeach of these applications, the ground of the application is that,at the time of his election as a member of the Killinochchi TownCouncil, he was a member of another Local Authority, namely,the Karachchi Village Council.
It is not disputed that the three persons who are respectivelythe 2nd respondents in each case were members of the KarachchiVillage Council. Section 14 of the Village Councils Ordinance(Cap. 257) provides that a member of the Village Council mayrelinquish his office by a written communication of hisresignation to the appropriate Elections Officer, either directlyor through the Chairman of the Council. The respondent in oneof these applications had been in fact the Chairman of the
TT N. G. FERNANDO, C.J.—Murugesu v. Anandasangary
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Karachchi Village Council. It would appear that he wrote a letter- of resignation dated as of 12th January, 1968, the dayimmediately preceding the polling day for the Killinochchi TownCouncil Election, resigning his office as a member of theKarachchi Village Council and addressed to the Elections Officerof the area. In the other two cases, it would appear that similarletters of resignation dated as of 12th January 1968 weredelivered to the Chairman himself for transmission to theElections Officer. None of these three letters of resignationhowever was received by the Elections Officer before the pollingday, and they were in fact handed to him only three days later.
Counsel for the respondents did not seriously argue that theletters of resignation which were in the hands of the Chairmanon the day before %e Killinochchi Election were in law effectiveresignations ; but even, if they were so effective, the three personsconcerned were nevertheless members of the Karachchi VillageCouncil on the Nomination Day, and if they were disqualifiedon that account, resignations tendered just before the pollingday would not avail them.
Section 28 of the Local Authorities Elections Ordinanceprovides that “ any person who is qualified, under thisOrdinance, for election as a member of a local authority maybe nominated as a candidate for election for any ward of theelectoral area of such authority ”. I hold that s. 28 disqualifies aperson from being duly nominated on Nomination day if he isat that time not qualified for election.
In the case of each of the three respondents whose electionsare challenged in these applications, each of them had not onthe Nomination day resigned his office as a member of theKarachchi Village Council; and since he was on that day yeta member of that Village Council, s. 9 of the Local AuthoritiesElections Ordinance (as amended in 1963) declared him to bedisqualified for election as a member of any other localauthority. That being so, each of these three persons could not beduly nominated on the Nomination day. There are decisionsconcerning Parliamentary Elections holding that the time of anelection is the period between Nomination day and polling day.
Counsel for the respondents submitted a rather involvedargument in support of a contention that these three personshad in law vacated office as members of the Village Councilprior to their being nominated for election to the Town Council.This argument invoked certain provisions of the Village CouncilsOrdinance (Cap. 257) to which I must now refer.
!•*—K 21708 (5/73)
54lH- N. G. FERNANDO, C. J.—Murugesu v. Anandasangary
Section 5 of Chapter 257 provides that the Minister may byorder alter and redefine the limits of any village area ; andsection 8 provides inter alia, that the Minister may bynotification subdivide an existing Ward of a Village Council intotwo or more Wards, and may amalgamate two or more existingWards into a new Ward. Section 8A then provides that wherethe limits of a Ward are altered in consequence of an order undersection 5 or a notification under section 8, the member electedfor that Ward shall, upon the coming into force of the order ornotification, vacate his office, and that a bye-election should thenbe held for that Ward.
Counsel’s argument is based on the fact that the area of thenew Killinochchi Town Council comprises several areas whichformerly formed parts of some of the Wards of the KarachchiVillage Council. The contention is that when the Ministerconstituted the new town Killinochchi by including in it partsof. the former Village Council area,
EITHER—
he was bound contemporaneously to make orders or
notifications under section 5 or section 8 of Chapter 257to re-define the limits of the Karachchi Village area orof the Wards thereof ;
OR
by operation of law, the area of the Village Council was
automatically re-defined, and the limits of its Wardsautomatically altered.
In either event, it was argued, there was by operation of lawa situation in which s. 8A took effect and the three respondentstherefore vacated office at the time when Killinochchi became aTown.
One answer to Counsel’s contention is that ss. 5 and 8 onlyempower the Minister to make orders or notifications and do notimpose on hirp a duty to do so in any specified circumstances.
The contention that s. 8A automatically operated to createvacancies in the offices (of membership of the Karachchi TownCouncil) calls for a consideration of the purpose served by s. 8Ain relation to ordinary cases where that Section applies. If forinstance, the limits of a Village area are altered under s. 5 ofChapter 257 by the addition to it of some new area, the resulting
H. N. G. FERNANDO, C.J.—Murugeau v. Anandasangary
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position would be that there will then be resident in the villagearea persons who are not represented in the Village Council bya member of their choice. That being so, s. 8A necessarilyprovides for fresh elections in order that such persons mayparticipate in electing a representative in the Council. So also,if under s. 8 of Cap. 257, an existing Ward is divided into twonew wards, then new elections are necessary in order to securethat each of the two new Wards will be represented on theCouncil by its own member. ,
But such situations as those I have just envisaged will notarise when a part of a Ward of a Village area becomes a Wardor part of a Ward of a new Town Council. In such an event,an Election will, be-held (as was done in this case) for the newTown Council with the result that the residents who ceased tobe represented in the Village Council will have their represen-tative in the new Town Council. I think therefore that there areno urgent practical considerations which require that anyvacation of office or fresh elections of members of a VillageCouncil must follow as a necessary consequence whenever thelimits of a yillage area are narrowed down by the absorption ofany part of the area into a new Town.
True it is that some of the Wards of the Karachchi VillageCouncil have become smaller in consequence of the constitutionof the new town of Killinochchi, and that alterations of the Wardsof the'Village area may be expedient in consequence of thechange. Counsel informed us some such alterations were in factmade recently and that these alterations will become effectivewhen a General Election is held next year for the KarachchiVillage Council. But in the absence of any express provisioncompelling the Minister to act under s. 5 or s. 8 of Chapter 257in the circumstances of the present case, I am quite unable toagree that the Minister was bound so to act contemporaneouslywith his order constituting the new town of Killinochchi.
For these reasons I hold that in each of these three applicationsthe respondent to each such application was not duly elected amember of the Killinochchi Town Council and does not. holdoffice as such. The respondent in each of the applications will payto the petitioner Rs. 105 as the costs of the application.
Sirimane, J.—I agree.
Applications allowed.