P. WEERASINGHAM, Petitioner, and K. KASITHAMBY and another, Respondents

090-NLR-NLR-V-64-P.-WEERASINGHAM-Petitioner-and-K.-KASITHAMBY-and-another-Respondents.pdf


502
Weerasingham v. Kasithamby
1962Present: G. P. A. Silva, J.
P. WEERASINGHAM, Petitioner, and K. KASITHAMBY and
another, Respondents
S. C. 292 of 1962—Application for a mandate in the nature of a Writof Quo Warranto under Section 42 of the Courts Ordinance
Town Council—Mode of election of Vice-Chairman when voting is equal—Effect ofdisqualification of one of the votes—Town Councils Ordinance {Cap. 256),ss. 18 (2) (a) (6), 22.
At a mooting of a Town Council held for the purpose of electing the Vice-Chairman of the Council, the petitioner and the 1st respondent wore the twocandidates, and each' of them received four votes. Tho voting being equal,the Chairman, in spite of protests, exercised his casting vote in favour of the1st respondent and declared him elected as Vice-Chairman. Further, one ofthe votes cast at the election in favour of the 1st respondent was that of aperson who hod no right to vote, his election as member having been declaredvoid by the Supreme Court on the day before the meeting was held.
Held (i) that the proper procedure, when the voting was equal,was to decidetho issue by drawing lots in terms of section IS (2) (6) of the Town CouncilsOrdinance.
that tho disqualification of one of the votes rendered unnecessary thedrawing of lots.
that, in tho circumstances of the present case, the petitioner shouldnot be declared to be the duly elected Vice-Chairman.
G. P. A. SILVA, J,—WeeraaingJuMn v. Kasithamby
503
Application for a 'writ of quo warranto against the Vice-chairman of the Town Council, Chavakachcheri.
V. Arulambalatn, for petitioner.
No appearance for respondents.
Cur. adv. vult.
September 17, 1962. *G. P. A. Silva, J.—
The petitioner in this application seeks to question the validity ofthe election of the 1st respondent as Vice-Chairman of the ChavakachcheriTown Council. The petitioner and the 1st and 2nd respondents aremembers of three respective wards of the Town Council having beenelected as such on 10th December, 1960, for a term of three years whichterminates on 31st December, 1963. The said Town Council is composedof 8 members and the 2nd respondent was elected Chairman of theTown Council on 16th January, 1961.
Section 18 of the Town Councils Ordinance (Chapter 256 of the Legis-lative Enactments) sets out the procedure for the election of a Chairmanand Vice-Chairman of a Town Council. Sub-section (2) (a) of' thissection provides that where only one candidate is proposed and secondedfor| election as Chairman or Vice-Chairman the presiding officer at themeeting at which the election takes place shall, without question put,declare that candidate to be elected. Sub-section (2) (b) says, inter aliathat', if the number of votes cast at an election is equally divided; thedetermination of the election shall be made by lot to be drawn in thepresence of the .presiding officer in such manner as he shall direct.
The election of a Vice-Chairman of this Council was held at a specialmeeting on 10th February, 1962, at which the 2nd respondent, beingthe Chairman, presided. The names of the petitioner and the 1strespondent were duly proposed and seconded as candidates for the officeof Vice-Chairman. At this election the petitioner received 4 votesand the 1st respondent also received 4 votes and, the voting being ,equal, the second respondent, in spite of protests, exercised his castingvote in favour of the 1st respondent and declared the 1st respondentelected as Vice-Chairman of the said Town Council.
The petitioner seeks to challenge the election on two grounds. Firstly,he I contends that the 2nd respondent, in exercising his casting vote,contravened section 18 of the Town Councils Ordinance.- The properprocedure should have been, when the voting was equal, to decide theissue by drawing lots in terms of this section. With this contentionX agree. The petitioner submits further that one of the votes cast at'the election in favour of the 1st respondent was that of MailvaganamManickam who had no right to vote. The reason for this submissionis that an application had been made for a Writ of Quo Warranto in
504G. P. A. SILVA, J.—Weerasingham v. Ka&ithamby
respect of Mr. Manickam’s election as a member of the Town Council,and that the Supreme Court made order on the 9th February, 1962,that is the day before the election of the 1st respondent as Vice-Chairman,declaring Mr. Manickam’s election as a member to be void. Thecertified copy of the order of the Supreme Court as well as a copy of therelevant minutes has been attached to the application. . The petitionertherefore contends that, at the election of the Vice-Chairman on the10th February, 1962, in point of fact, only 3 votes were cast in favourof the 1st respondent, as the member Mr. Manickam had no right tosit and vote, while the petitioner received 4 votes. It necessarily followsthat the votes cast at the election of a Vice-Chairman on 10th February,1962, were not equal but that the petitioner received 4 votes while the1st respondent received only 3 votes, so that there was no occasionfor the drawing of the lots or for a casting vote even if such castingvote was regular. There was no representation at the hearing foreither of the respondents although notice had been served and thesefacts are not challenged. The petitioner’s contention must, in thecircumstances, prevail. I therefore declare the election of the 1strespondent as the Vice-Chairman of the Town Council of Chavakachcherivoid.
Certain other matters, however, have to be taken into account onthe question whether, according to the prayer in the petition, the petitionershould be duly declared elected the Vice-Chairman of the Town Council.There is no evidence nor even a suggestion that the decision reached by theSupreme Court on the 9th February, declaring Mr. Manickam’s,election as a member of this Town Council void, was conveyed tothe Town Council before the Vice-Chairman’s election on the 10th February.Had this been conveyed and the Town Council consisted of only sevenmembers, it may well be that the election of the Vice-Chairman mayhave been postponed till the vacancy caused by the avoidance of Mr.Manickam’s election was filled and all the wards of the Town Councilwere properly represented. If an election took place subsequently witha full complement of the members of the Town Council, it is not possibleto say what the result of that election would have been. Further,according to the provisions of section 22 of the Town Councils Ordinancethe term of office of a Vice-Chairman is confined to one year. Sevenmonths of this period have thus elapsed since the date on which thelast election was held. Very little purpose would therefore be servedby this Court declaring the petitioner duly elected Vice-Chairman witheffect from 10th February, 1962, even if it had the power to do so onthe present application itself. In these circumstances, I make no orderon this part of the prayer.
The rule Nisi issued on the respondent is made absolute. The tworespondents will pay the costs of the petitioner, which I fix at Rs. 250,in equal shares.
Ride, made absolute.