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Basnayake, for petitioner.—The question of delay cannot besaid to arise in this case. Even three months cannot be saidto be delay in these circumstances. Some of the applicant’saffidavits are in the very month of the elections^ We cannot askfor a writ of quo warranto until the respondents are in office. {The.King v. Whihvell.1)
The question of bona fides should be taken into consideration.If the requirements of the law are satisfied, the bona fides (Rex v.Benny2) of the relator need not be considered.
The word “ acquiescence ” does not occur in Short on Mandamusin relation to writs of this nature. “ Concurrence ” is the wordhe uses. A person present at an election cannot be said to concurin it. He may vote against a particular candidate who is electedand he cannot be said to have concurred in his election. (Rex v.Huxam,3 The King v. Clarke* The King v. Symmons,5 TheKing v. Trevenen,6 The King v. Stewart,’’ The King v. Smith.3)
October 12, 1928. Drieberg J.—
The petitioner asks that the election of a Committee for thevillage of Kosgoda held under the Village Communities Ordinance,No. 9 of 1924, on April 28, 1928, be declared null and void.
The meeting was first held on March 3, 1928. This was not oneheld in the ordinary course. I am informed by Mr. Perera that theprevious election, which was for a Committee to hold office fromJuly, 1927, was declared void by the Supreme Court in the casereported in 29 N. L. R. 129. It is only necessary to refer to this,for it would appear from it that the Committee elected at thiselection would enter on office immediately and not on July 1following.
At a meeting on March 3 six Committees were proposed. Thefirst Committee of thirty-five names was proposed by C. M.Wickremesinghe and included the petitioner. After recordingvotes for C. M. Wickremesinghe’s Committee and apparentlypart of the votes for another Committee, the presiding officer,Mr. Schrader, the Government Agent of the Southern Province,found it impossible to proceed with the meeting owing to thedisorder which prevailed from voters not carrying out his directionfor their remaining in separate and distinct places indicated by him.This appeared to be due to C. M. Wickremesinghe among othersdisobeying orders of the presiding officer. C. M. Wickremesinghehimself proposed that the poll be adjourned and this was seconded.The presiding officer accordingly adjourned the meeting, but he
1 Irvin Rep. vol. 5, p. 85.5 4 T. R. 223.
1 Bar. & Ad. 684.6 2 Bar. <fc Ad. (1818-1819), p. 339.
5 4 Jurist 1133., 3 East 213.
1 East 38.> 3T.R. 573.
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did not, as required by section 10 (2) of the Ordinance, announcethen the time and place of the adjourned meeting. The applicationto set aside the election is based solely on non-compliance withthis provision.
On March 19 the Government Agent duly advertised theadjourned meeting for April 28. On April 28 C. M. Wickreme-singhe was present and also the petitioner. No objection wastaken to the regularity of the meeting though the petitioneradmits that he became aware of requirements of the Ordinanceon April 26.
The proceedings of April 28 show that C. M. Wickremesinghetook various objections to the admission of certain people asvoters. After these objections had been considered Wickremesinghecomplained that the headman was interfering with his voters andhe and another shouted to the people to leave. He applied to thepresiding officer to withdraw his motion, but the latter said thathe saw no justification for that as everything was going on smoothlytill this sudden commotion. No votes were registered forWickremesinghe’s Committee, but another Committee was declaredduly elected. It appears that this Committee since that timehas held meetings, collected taxes and rates, and expendedconsiderable sums of money for village works.
I have referred to the part played by C: M. Wickremesinghein this matter because the affidavit for the respondents which isnot met on this point by a counter affidavit, states that the presentapplication is at the instance of Wickremesinghe as he was onceunseated from the office of Chairman.
The question is whether under the circumstances which I haverelated and others to which I shall refer later, the election is liableto be set aside for non-observance of the provisions of section 10 (2).
The principles on which an election may be set aside on aproceeding quo warranto are now well settled, and it cannot benow urged that if there is a legal defect in the election the Court isbound to set it aside. “ This proposition,” said Lord Denman C.J.in King v. Parry1 “ is wholly untenable. Every case (and they aremost numerous), which has turned upon the interest, motives,or conduct of the relator, proceeds upon the principle of the Court’sdiscretion. However clear in point of law the objection may havebeen to the party’s abstract right to retain his office, yet the Courthas again and again refused to look at it or interfere upon one orother of these grounds.”
In the Winchelsea cases2 which are not available to me. butwhich are referred to in King v. Parry (supra), Lord Mansfieldtreated the discretionary power of the Court, no.t as a matterdisputed or requiring proof, but as a settled principle to be applied ;
1 6 Add. & E. 810.s 1 Sir W. B. 634 ; 4 Burr. 1962, 2022, 2120.
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1928. and in Burr, p. 2123, he stated the grounds on which the CourtDbiebebo j> those cases proceeded in their application of the principle.
——Firstly, “ the light in which the three relators, now informing
Wijeyratne (jour^ Qf ^is defect of title, appear; from their behaviourObycsek-ere and conduct relative to the subject-matter of their information,previous to their making this motion.” Secondly, “ the light,in which the application itself manifestly shows their motives,and the purpose which it is calculated to serve.” Thirdly, “ theconsequences of granting the information.”
A further condition is to be found in the case of Regina v. Ward1where Lord Blackburn said in dealing with irregularities in anelection : “ We think, however, that seeing that the mistakecommitted here has produced no result whatever; that the samepersons have been elected who would have been elected if theelection had been conducted with the most scrupulous regularity;and that the defendant’s title if bad at all, is only bad as I may say onspecial demurer ; we ought, in the exercise of our discretion, to refuseleave to disturb the peace of the district by filing this information.”
It is necessary therefore that the application should be a bonafide one directed to relieve a real grievance.
The petitioner states that many voters who were present onMarch 3 did not attend on the 28th, and that although he waspresent on the 28th, he did not take an active part in the proceedingsof the day as he knew they were irregular. If he was acting bonafide I should have thought that he would have drawn the attentionof the presiding officer to the irregularity.
The respondents say, and their affidavit is uncontradicted onthis point, that C. M. Wickremesinghe and the petitioner activelycanvassed at the adjourned meeting and only left it when theyfound that they had little support; that so far from questioningthe regularity of the meeting the petitioner supported thecandidature of C. M. Wickremesinghe and issued printed posterssoliciting votes for him.
This application was not made until July 24, three monthsafter the election.
There is in this case the further element of < oncurrence andacquiescence in the election, which is .also a ground for refusingto set it aside. I have referred to the part played by C. M.Wickremesinghe at the second meeting as the petitioner has notdenied the averments of the respondents that, this applicationis made really at the instance of Wickremesinghe.
I limited the argument in this application to the affidavit of thepetitioner and the counter affidavit of the respondents. Other,affidavits were submitted by the petitioner, which I could notconsider as copies of them had not been served on the respondents.
(1873) L. i?. 8, Q. B. 210.
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Mr. Basnavake relied on the case of Rex v. Smith,1 where 1928.objection was taken to the election of a mayor on the ground dmeberg j.that he had not complied with a certain statute which required-—
that he should have taken the sacrament according to the rites Wijeyratwsof the Church of England within one year next before his election. ObeyesekereThe Court set aside the election and held that the relators were notdisqualified by reason of their having concurred in the electionof the defendant, the defect being one not in the form of conductingthe election but in the non-compliance with a positive requirementof the law regarding the qualification of a person elected to be acorporate office.
The provision that the date of the adjourned meeting should bedeclared when the adjournment is decided on cannot be regardedas anything more than a rule for the conduct of an election. Anotice so given is not more formal and certainly not more effectivethan the written publication of the notice required for the initialelection, which would have the advantage of conveying notice tothose who were not present at the first meeting.
It is not possible therefore to regard this requirement of section10 (2) as one of the same nature as that dealt with in Rex v. Smith(supra).
In my opinion this application cannot succeed. It is not abona fide one made to obtain redress against a real grievanceand the conduct of the petitioner disentitled him to relief of thisnature.
I therefore discharge the rule issued by this Court. The petitionerwill pay the costs of the first, third, fourth, sixth, eighth, ninth,eleventh, thirteenth, fourteenth, and thirty-fourth respondents.
Rule discharged.
' 3 T. R. 573.