065-NLR-NLR-V-33-SIMON-SILVA-v.-ASSISTANT-GOVERNMENT-AGENT-KALUTARA.pdf
AKBAB J.—Simon Silva e. Assistant Government Agent, Kalutara
267
1931Present: Akbar J.
SIMON SILVA v. ASSISTANT GOVERNMENTAGENT, KALUTARA.
Jn twm Matter or an Application foe a Writ or Mandamus.
on the Assistant Government Agent, Kalutara.
Wffiidamiw—Local Government—Objection to names appearing on roll of electors—Duty ofGovernment Agent-Notice to persons affected—Issue of writ*—Ordinance No, 11 of1920, e. 29 (3).
Under section 29 (3) of the Local Government Ordinance it is the duty of the Govern-ment Agent to cause notice of objections to the names of persons appearing on the rollof electors, to be served on the persons affected.
A mandamus will not issue when it would Ije futile and could not be obeyed.
T
HIS was an application for a writ of mandamus on the AssistantGovernment Agent, Kalutara.
C. V. Ranawaka (with him Abeywickrarna), for petitioner.
Deraniyagala, Acting G.C., for the respondent.
November 16, 1931. Akbar J.—
The petitioner applies for a writ of mandamus on the AssistantGovernment Agent of Kalutara directing him to hold an inquiry intocertain objections raised by the petitioner to the names of 117 personsappearing in the roll of voters under section 29 of Ordinance No. 11 of1920. It appears that the Assistant Government Agent caused a noticeto be issued under section 29 of the Ordinance indicating that on August24, 1931, he would inquire into all claims for the insertion of names inthe electoral roll for division No. 1 of the town of F&nadure and also thathe would inquire into all objections to the names already enteredthe roll for the electoral area having been prepared and published* onJuly 17, 1931. Qn August 12, 1931, petitioner submitted written objec-tions to the names of 117 persons appearing in the roll. On August 24the Assistant Government Agent made order that as 7 clear days* noticehad not been given as required by sub-section (3) of section 29, he couldnot inquire into these objections. There is nothing in the papers sub-mitted to me to show that any one of the 117 persons raised any objectionto the hearing of the petitioner's case. The affidavit of the petitionerstated that this preliminary objection was taken by Mr. D. S. de Fonseka,one of the contesting candidates for the ward. I cannot understandwhy the Assistant Government Agent did not inquire from any of these117 persons whether they had 7 days’ notice or not, because the writtenobjections to the 117 persons having been submitted on August 12
9—1. F. A 99910 (8/5 0)
268AKBAR J.—Simon Suva v. Assistant Government Agent, Kalutara.
there was an interval of nearly 11 days between that day and August24. The Assistant Government Agent has explained in an affidavitthat the objections were submitted at 4 p.m. on August 12 and thatAugust 13 being a public holiday he fordwarded the objections to theMudaliyar only on August 14 and that the objections reached the Muda-liyar on August 15 which day was a Saturday. The Mudaliyar explainsiu a separate affidavit that on August 15 he was .av/ay on duty and onlyreturned home at 6 p.m. that day, and that as August 16 was a Sundayhe handed the notices to the Vidane Muhandiram .for service oil August17. In the opinion of the Assistant Government Agent service afterAugust 17 would not give 7 clear days' notice to the persons objectedto and that was the reason why he upheld the objection of Mr. D. S.de Fonseka to the hearing of the. petitioner’s objections. Mr. Deraniya-galla argues that under sub-section (3) of section 29 there is no legalobligation on the Assistant Government Agent to cause notices to beserved at all and, that being so, a writ of mandamus cannot issue fromthis Court on the Assistant Government Agent. It is true that the sub-traction is ambiguously worded. The sub-section is as follows:—“Noobjection shall- be entertained unless .the objector‘ shall give seven days'notice – in writing of his objection through the Government Agent tothe person against the insertion of whose name in the roll the objectionis to be taken.” This'sub-section has not been modelled on any sectionthat I know of in the English law, but I think the clear implicationwas that the Assistant Government Agent was to serve the notices inthe best manner that he could adopt in the circumstances. Underaection 227 of the Ordinance there is provision made for the service tobe effected through the post. The section states that the service may beeffected by personal service on the 117 persons or by sending the noticesby registered letters and in such event the law provides that the noticesshould be deemed to have been served at the time the letters containingthe same would be delivered in the ordinary course of post and in provingsuch service it would be sufficient to prove that the notices were properlyaddressed and put into the post. The petitioner states in his affidavitthat this was the course adopted on a previous occasion. I cannotunderstand why the Assistant Government Agent did not adopt thisobvious method of service because the objections being delivered onAugust 12, there was ample time for service by the post before the inquirycame on, on August 24. The whole question 1 have to deoide is whetherthere was a legal obligation on the Assistant Government' Agent tocause notices of objections to be served on the persons affected or whetherhe could decline to cause such service to be effected or adopt his owfcmethod to serve these notices. The Assistant Government Agentshould have realized that the time though ample was somewhat shortin view of a public holiday and a Sunday intervening. The very factthat the Assistant Government Agent accepted- these notices for servicewhen they were handed over to him on August 12. shows that he recog-nized that there was a legal obligation on him to cause these noticesto be served. In my opinion there was this legal obligation not only■ implied in the sub-section but recognized by the Assistant Government
AKBAR J.—Simon Silva v. Assittant Government Agent, Kalutara. 259
Affent on the occasion in question and also by the praotice from thetime this Ordinance came into force. The other point I have to decideis whether it will lead to any good to issue the writ at all. If a writ ofmandamus is to be issued now compelling the Assistant GovernmentAgent to hear the objections after giving 7 days’ notice in writing to the117 persons, I cannot see how the election can he held without violatingthe time limits mentioned in the Ordinance. Under section 82 of theOrdinance the election has to take place either in November or inDecember. The date of election has already been fixed for November28 but this can be varied under section 11a of the Interpretation Ordi-nance, No. 21 of 1901. and the date can be refixed for any day in December.But even then there are other time limits fixed* by sections 29 and 80.
If a writ were to be- issued now, compelling the Assistant GovernmentAgent to hear the objections, he must refix the date of the inquiry forsome date after this writ is issued; but by section 29 (1) (b) the noticefixing the date of the inquiry cannot be later than % months before theholding of the election. Even if the election is to be held on the lastday of December, it is not possible for the Assistant Government Agentto fix the inquiry into the objections on a date that will leave at leasta period of 2 months between the hearing of the objections and the dateof the election. I cannot see how this difficulty can be got over. Inview of the objection that Mr. Beraniyagala has taken it is not possibleat this stage for the Assistant Government Agent without violatingthe provisions of the law to inquire into the objections to certify therolls under sub-section (5) of section 29 and for the election to ^>e heldon a date to be refixed bv notice under section 80 of the Ordinance.Mr. Banawaka argues that under section 38 it is open to the Governor .in Executive Council to make rules under Chapter HE. to meet thisdifficulty. I do not think that this-is possible because I have no powerto order the Governor in Executive Council, neither do I think thatthat section applies to this particular case. A writ cannot be issued onthe Governor in Executive Council for the simple reason that section 38giving the power to the Governor in Executive Council is permissiveand does not impose any obligation on that body (see 10 Halsbury,'p. 97, and the cases cited therein). This is a difficulty which has beenbrought on by the petitioner himself to some extent by his delay inapplying to this Court for a writ. So that it seems to me that even if awrit were to issue it will not- be possible for the Assistant GovernmentAgent to carry out the terms of the writ without violating the othersection of the Ordinance. In the case of Wright v. Eastbourne CorporationSmith L.J. stated as follows:—" If it is in contravention of a publicAct of Parliament, it seems to me obvious that the Queen’s Bench Divisionought not to grant a mandamus. A mandamus ought not to go whenit' would be futile and could not be obeyed.” On these grounds 1 amafraid the application must be refused, but I make no order as tocosts.
Application refuted.
1 83 Law Timee Report, p, 338.