063-NLR-NLR-V-51-SAMARAKOON-Petitioner-and-TIKIRI-BANDA-Respondent.pdf
Samarakoon v. Tikiri Banda
259
1949Present: Basnayake J.
SAMAR AKOON, Petitioner and TIKIRI BANDA, Respondent
S. C. 421—Jn Ike Matter of an Application for a Writ of Quo Warrantoagainst B. M. Tikiri Banda
Quo warranto—Election of Village Committee Chairman—Bribery and treating—Remedy provided by law—Act of electing Chairman—Official act—Public Bodice (Prevention of Corruption) Ordinance—No. 49 of 1943—Section 6—Local Authorities Elections Ordinance, No. S3 of 1946—Section10.
The act of electing a Chairman of a Village Committee is an officialact within the meaning of section 6 of Ordinance No. 49 of 1943. Where,therefore, there are allegations of treating and bribery the proper remedyis under that section and a oonviction will disqualify the porson chargedby virtue of seotion 10 of Ordinance No. 53 of 1946. A writ of quo-warranto will not lie in suoh a case.
BASNAYAKE J .—Samarakoon v. Ttkiri Banda
2(50
P FLIC ATI ON for a writ of quo warranto to have the respondent 'selection as Chairman of the Village Committee of Udagampaha declaredvoid.
S. Barr Kumarakulaainghe, with .4. I. Rajoainghnm and T. W.Rajaratnam, for the petitioner.
E. Chitty, with N. Nadarasa, for the respondent.
dune 7, 1949. Basnayakk J.—The petitioner and the respondent are members of the Village Committeeof Udagampaha. The respondent successfully contested the petitionerfor the office of Chairman. The petitioner seeks to have the respondent’selection as Chairman declared void. The grounds on which he relies arethus stated in his petition :
“ 4. Before and after the said Village Committee Elections theRespondent and his agents committed various acts amounting togeneral bribery, general treating and general undue influence, morefully described in the affidavits annexed A to J to this petition andfiled herewith,
The said acts were designed to prevent the free and fair exerciseof the vote at the election of the Chairman held on the 27th of July,1948, and the said acts had the effect so designed.
For some time before the Election of the Chairman, the Respon-dent together with a number of his supporters treated the said membersof the Village Committee and detained them in his house and laterat other places in order to prevent their independently exercisingtheir judgment in the matter of the choice of a Chairman.
On various occasions before the election of the Chairman, theRespondent bribed and attempted to bribe various members of thesaid Village Committee.” I
I am unable to see how “ general bribery, general treating and generalundue influence ” before and after the Village Committee election canaffect the respondent’s election as Chairman of the Village Committeeby his fellow members.
In regard to the allegations of treating and bribery by the respondent,I have not boon referred to any case in which the election of a memberto the office of Chairman of a local body or Mayor of a council has beensuccessfully questioned by way of quo icarranto on the grounds allegedby the petitioner. Before I can allow an application in support of whichno precedent is cited, I must bo satisfied upon the affidavits that theallegations of the petitioner ore true. In the instant case the respondent
BASNAYAKE J.—Samarakoon v. Tikiri Banda
201
denies that he cither treated or bribed the members of the Committeeand six out of the twelve members constituting the Committee deny thatthey were treated or bribed or that any other form of undue influencewas exercised in respect of them. A mandate in the nature of a writ ofquo warranto is not issued as a matter of course. It is a writ in thediscretion of this Court and the onus is on the petitioner to satisfy theCourt that the matter is one that calls for the remedy he asks.
Learned counsel for the respondent submitted that the petitioner shouldfirst pursue the remedy provided by the Public Bodies (Prevention ofCorruption) Ordinance, No. 49 of 1943, or Chapter IX a of the PenalCode. A conviction under either of those enactments operates by virtueof section 10, sub-section (1) (&) and sub-section (2) (c) of the LocalAuthorities Elections Ordinance, No. 63 of 1946, as a disqualificationof the person convicted from sitting or voting as a member of a localauthority (which expression is defined to include a Village Committee—section 88) for a period of five years. Learned counsel for the petitionercontended that neither the Public Bodies (Prevention of Corruption)Ordinance, No. 49 of 1943, nor Chapter IX a of the Penal Code, appliesto the instant case. He submitted that the expression “ official act ”as defined in section 6 of the former enactment docs not include the actof electing a Chairman.
I find myself unable to agree with the submission of learned counselfor the petitioner. In my opinion the act of electing the Chairman of a■ Village Committee falls within the definition of the expression “ officialact”. The words “any matter or transaction whatsoever” in thatdefinition axe wide and sweeping and embrace all acts which a memberof a Village Committee is called upon to perforin qua member. Thereis nothing in Chapter IXa of the Penal Code that excludes the applicationof section I 69b in that Chapter to the exercise of the right to vote at theelection of a Chairman of a Village Committee.
The contention of the counsel for the respondent that there are otherequally effective remedies open to the petitioner is m my opinion correct.A writ of quo warranto will not as a rule issue when there are other remedies.
The petitioner comes to this Court on the footing that “ there wasno election of a Chairman for the Village Committee of Udagampaha.”If that be the case, mandamus and not quo toarranto is the remedy. Quowarranto lies where the office is full de facto1. If the election is merelycolourable, and therefore void, so that in point of law the office is vacant,then the dissatisfied person should ask for a mandamus to proceed to anelection de novo, the pretended election being a mere nullity.
For the above reasons the rule is discharged with costs.
Rule discharged.
' The Law of Corporations by James Grant, p. 266.