109-NLR-NLR-V-51-WIJEGOONEWARDENE-Petitioner-and-KULARATNE-Respondent.pdf
Wijegoone tear dene v. Kularatne
453
1050Present: Swan 3.
WIJEG’OONEWARDENE, Petitioner, and KULARATNE,Respondent
S. C. 6-52—Application for a Writ of Quo Warranto on M. A. DonKularatne
Writ of quo warranto—Undue delay in making the application—Ground for refusalof writ.
Where a defeated candidate in a village committee election applied for awrit of guo warranto when a period of five months had elapsed from the dateof the election—
Held, that there was unreasonable delay in making tho application and,in the absence of lawful cxcuso for the delay, the application should be refused.
454
SWAN J.— Wijtgoonewardene v. Kularatne
.
JL HIS was an application for a writ of quo warranto in respect of theelection of a Village Committee member.
Merryl Siriwardene, for petitioner.
J. IT. Subasinghe, for respondent.
Cur. adv. vult.
June ti, 1950. Swan J.—
This is an application for a writ of quo warranto against tho respondentin order to obtain a declaration that he was not qualified to be electedas a member for the Moegahatenne Ward of the Village Committee ofMaha Pattu in. the Kalutara District. The alleged ground of disquali-fication is that at the relovant time the respondent was directly interestedin a contract with the said Village Committee.
Two preliminary objections have been taken to the application, viz.:—
that the affidavit does not avor that the respondent sat and voted
as a mombor of the Village Committee ;
that there has been undue delay in making the application.
Thoro is authority for the proposition that a writ of quo warranto willnot be granted unless the person against whom it is directed is actuallyin office—see Ukku Banda v. Government Agent, 8. P., and others l. Inthat case the respondents whose election to the Village Committee waschallenged were not in office at the time the application mis mado. Tboelections were held on 10th March, 1927. The application was madeon Hth April, 1927, but the new Committee could not claim to functiontill 1st July as the term of office of tho oxisting Committee did not expiretill 30th June.
In the case of de Zoysa v. KnlatiUeke- it was held that an applicationfor a writ of quo warranto would not be granted to set aside an olectumto a Municipal Council when at the time the rule nisi was issued the**soondent had not attended any meeting of the Council or done anyother to»,v -«-^w|ng that ho had acted in or accepted the office of MunicipalCouncillor.
In that caso the respondent "^utained and the petitioner concededthat the respondent had done nothing t.o signify acceptance of office.Tho facts of the present ease are not the with., flere the i^spondentdoes not allege, nor does the petitioner concede, that the .—i _x u«not £w<> cM*d voted as a member or resigned his office. In the circum-stances I think the objection is purely technical.
The other ground urged for the discharge of the rule nisi is theundue dolay in making the application. In the case of Jayasooria v. deSilva 3 Soertsz J. said that undue delay was a matter which the Courtwould take into consideration when called upon to ©xorcise itsdiscretionary power.
1 {1927) 29 itf. L. R. 168.* 1/945) 46 Sf. L. It. 143.
(1940) 41 N. L. It. 510.
Piinchigingho v. B. H. Persia455
In the affidavit filed by the respondent the question of undue delayhas specifically been raised. No counter affidavit has been filed excusingthe delay. The election took place on 8th June, 1949. The applicationwas filed in the Registry on 14th November, 1949, i.e., more than fivemonths after the election. In the absence of any excuse I think therehas been undue dolay on the part of the petitioner.
In the case of Jayasooria v. de Silva, referred to above, Soertsz J.thought five months’ delay too long. Counsel for the petitioner saysthat in that case the challenged election was that of the Vice-Chairmanof an Urban Council whose tenure of office was only one year and in thecircumstances five months’ delay was undue delay; in this case themembers hold office for three years and therefore five months’ delaywould not bo unreasonable.
The question of undue delay surely cannot depend on the length of anelected member's tenure of office. The criterion would be the period oftime that has elapsed betwoon the date of the election and the filing ofthe application. A successful candidate has a right to expect that thoissue of the validity of his eloction should be disposed of as quickly aspossible. And how can that be done if the challenger waits for fivelong months before making Ills challenge ?
Where a defeated candidate makes his application for a writ of quowarranto in the hope and with tho object of unseating his successfulrival I would, in the absence of a lawful excuse, unhesitatingly saythat there has been unreasonable dolay in making the application whena period of five months has elapsed from the date of the election.
The rule is discharged with costs.
Rule discharged.