A. SABARATNNAM, Petitoner, and S. SINNATHURAI, Respondent

098-NLR-NLR-V-65-A.-SABARATNNAM-Petitoner-and-S.-SINNATHURAI-Respondent.pdf


Saba.7atnam v. Sinnathurai
403
I860Present: T. S. Fernando, J.A. SABARATNAM, Petitioner, and S. SINNATHDBAI,
Respondent
3. G. 54 of 1960—Application for a Mandate in the nature of a Writ of QuoWarranto under section 42 of the Courts Ordinance
Town Council—Election of Vice-Chairman—Equal division of votes—Chairmancannot exercise casting vote then—Requirement of drawing lot—Town CouncilsOrdinance, No. 3 of 1946, ss. 33 (3), 33 (4), S3A (2) (6), 33A (2) (ff>, 39,40 (3)—Local Authorities (Election of Officials) Act, No. 39 of 1951, s. 7—Quowarranto.
When, at any meeting held by a Town Council for the purpose of electing aVice-Chairman, there is an equal division of votes, the Chairman has no rightto exercise a casting vote. When the division of votes is equal, section 33A(2) {g) of the Town Councils Ordinance prevails over section 40 (3), and thecorrect procedure is to decide the question by lot to be drawn as prescribedby section 33A (2) (g).
iU
T. S. FEKNAinX), 3—Sobaratoem v Smaathmai
Application for a writ of quo warranto.
S. Sharvanamda, with M. Shanmtugalingam, for the petitioner.H. Wanigcctmga, with S. Mohideen, for the respondent.
Cur, adv. mli.
Jxme 10, 1960. T. S. Fernando, J.—
In these proceedings the petitioner seeks to question the validity ofthe election of the respondent as Vice-Chairman of the Town Councilof Point Pedro alleged to have taken place on 30th January 1960. Thedecision of this application involves an interpretation of sections 33and 40 of the Town Councils Ordinance, No. 3 of 1946, and of section 33Aof the same Ordinance introduced by the enactment of section 7 of theLocal Authorities (Election of Officials) Act, No. 39 of 1961.
The facts relevant to the application may be set down as follows:—
At a general election held for the purpose of election of the membersof the Town Council for the period of three years 1960 to 1962, eightpersons including the petitioner and the respondent were duly electedas members. Section 33 (1) of the Town Councils Ordinance (herein-after referred to as the Ordinance) requires the Government Agent toconvene the first meeting of a newly elected Town Council. Such ameeting was duly convened for the 12th January 1960 and, in accordancewith the requirement of section 33 (3), the Government Agent presidedat that meeting, and one N. Nadarasa was elected Chairman. Section33 (4) enables the election of a Vice-Chairman to take place at the firstmeeting, but advantage does not appear to have been taken of thepossibility of electing the Vice-Chairman on the same day, and theelection of the Vice-Chairman was taken up only at the next meetingof the Council. The next meeting was held on 30th January 1960 andthe election of the Vice-Chairman was one of the items on the agendafor that meeting. According to tbe confirmed minutes of the meetmg ofthe 30th January, a certified copy of which has been produced in theproceedings before me by tbe respondent, after tbe other items in theagenda bad been disposed of, the meeting took up for consideration thelast item of tbe day which was the election of tbe Vice-Chairman. Twocandidates, vix., the petitioner and the respondent, were duly proposedand seconded for election to this office, and the minutes read that theproposals were voted upon and the voting turned out to be four membersin favour of each candidate. The minutes further read that “ tbe votesbeing equal, the Chairman gave his casting vote in favour of Mr. S-Sinn&thurai ”. The minutes also show that one of the members immedi-ately questioned tbe legality of the Chairman exercising a casting voteinstead of the question being decided by lot.
The petitioner alleges in his affidavit that the members present deter-mined tbe mode of election to be by open voting. This averment isdenied by the respondent in his own affidavit where he adds that “ tbe
T. S. FERNANDO, J.—Sabaratnam v. Sinnathurai
465
items of the agenda were decided upon by the voting of the members inopen session according to law ”. It was contended by learned Counselfor the respondent that the statement that the members themselvesdetermined at the meeting that there should be open voting in respectof the election of the Vice-Chairman is untrue ; be stated that in respectof this item as well as the other items on the agenda for the meeting ofthe 30th January voting took place in the ordinary way (i.e., open voting)without any resolution of the members being passed at any stage deter-mining the method of voting. In entering upon a consideration of thevalidity of the impugned election I must therefore proceed on the basisthat no resolution of the members as contemplated in section 33A (2) (6)of the Ordinance has been had at this meeting. The question whetherthere was or was not a resolution in respect of the mode of election doesnot, however, appear to me to make any material difference to thequestion before me having regard to the view 1 have formed of thelegality of the claim that the Chairman at the meeting had a fight toa casting vote.
As would be apparent from the foregoing, the petitioner contendsthat the Chairman had no right to exercise a casting vote while on behalfof the respondent it is asserted that the Chairman had the right by virtueof section 40 (3) of the Ordinance which was left unamended by Act 39 of1951. Section 40 (3) is in the following terms :—
“ Where the votes of the members present at any meeting areequally divided in regard to any question, the Chairman, Vice-Chairmanor other member presiding at the meeting shall, in addition to his voteas a member, have a casting vote. Provided that in every case wherethe votes of the members are equally divided on the question of theelection of a Chairman, such question shall be determined by lot andfor tbe purpose of such determination lots shall be castor drawn in suchmanner as the Government Agent in his sole discretion may decide .”
If the election sought to be challenged in the present proceedings hadtaken place prior to the enactment of Act No. 39 of 1951, then, not beingan election of a Chairman, the Chairman of the Council who was requiredby section 33 (4) to preside at the meeting would have had a right toexercise a casting vote had the members been equally divided. Is theposition in regard to the existence of such a right in the Chairman thesame after the amendment introduced in the shape of section 33A ?The petitioner contends that, after the introduction of section 33A,whenever the election of a Vice-Chairman may take place—whether itbe at tbe first meeting after a general election, at an ordinary meetingor at a special meeting—section 33A (2) (g)1 makes it imperative that,
1 Section 33A (2) (g) of the Town Councils Ordinance as amended by Section 7of the Local Authorities (Election of Officials) Act, No. 39 of 195] :—“ Where thereare two candidates at any voting and the number of votes cast is equally dividedand the addition of one vote would entitle one of the candidates to be elected asChairman or Vice-Chairman, the determination of the candidate to whom the addi-tional vote shall be deemed to have been, given shall be made by lot to be drawnin the presence of the presiding officer in such manner as he shall direct ”.
466
T. S- FERNANDO, J.—Sabandnam Sinnathmai
'where the number of votes oast for the respective candidates for theoffice of Vice-Chairman is equally divided, and the addition of one votewould entitle one of the candidates to be elected as Vice-Chairman, thedetermination of the candidate to whom the additional vote shall bedeemed to have been given shall he made by lob.
Mr. Wanigatunga conceded that if the Town Council had proceeded toelect its Vice-Chairman at the first meeting held on 12th January, as itlawfully could have done, then, notwithstanding that section 33 (4) ofthe Ordinance which requires the Chairman just elected to take overfrom the Government Agent and preside at the election of the Vice-Chairman, section 33A (2) (g) would have prevailed, that the presidingofficer (viz., the Chairman of the Council) would have had no right toexercise a casting vote and that the determination would have had tobe made by lot. He argued, however, that except at the first meetingafter a general election, the Chairman’s right to a casting vote given bysection 40 (3) is unaffected, whatever be the nature of the question thatcomes to be voted upon by the members. He appeared to say that, asthe legislature has left it open to the Council to decide to elect a Vice-Chairman either at the first meeting after a general election or at a latermeeting, if it does not decide to proceed to such an election at the firstmeeting, the Chairman has the right to a casting vote. As I pointed outto Counsel at the beginning of the argument, if the argument is soundit means that the question whether the Chairman shall have a castingvote on this matter of the election of the Vice-Chairman is virtually leftto the discretion of the Chairman himself. Unless the plain meaningof the relevant sections of the Ordinance compels me to reach such aconclusion, it would in my opinion be wholly unreasonable to imputeto the legislature an intention to permit the Chairman virtually to decidethis matter himself.
Act 39 of 1951 is an Act amending the law relating to local authoritiesin order to make new provisions regarding, inter alia, the mode of electionof the Mayors or Chairmen and the Deputy Mayors or Vice-ChairmeD ofsuch authorities. An examination of its provisions reveals that thelegislature introduced in respect of the election of Mayors and DeputyMayors of Municipal Councils and the Chairmen and Vice-Chairmen ofUrban Councils and Village Committees provisions similar to thoseintroduced in respect of Town Councils by the new section 33A of theOrdinance. I can find no indication in section 33A of a limitation orrestriction of the procedure of determination by lot in the event of anequal division of votes in the matter of the election of a Vice-Chairmanto the case of such an election taking place at the first meeting after ageneral election. It is an accepted rule of interpretation of statutesthat, if the co-existence of two seta of provisions would be destructiveof the object for which the later was passed, the earlier would be repealedby the later.—vide Maxwell on Interpretation of Statutes, 10th ed., page168. In the case of an equal division in the voting on the question of fch&election of a Vice-Chairman, section 33A (2) (g) has the effect of with-drawing from the Chairman his right to a casting vote conferred by section
Rasammah v. Qovindar Manar
487
40 (3) of the Ordinance. At any meeting of the Council the Chairmanappears to have a casting vote on any question that arises for divisionexcept where the question is that of the election of a Vice-Chairman.Such election may take place at the first meeting after a general election,at an ordinary meeting or a special meeting convened in terms of section39 of the Ordinance ; the Chairman is required to preside at all proceedingsheld for the election of the Vice-Chairman—section 33 (4); but at suchelection the Chairman has no right in view of section 33A (2) (g) to exercisea casting vote.
As the election of the respondent was effected by the Chairman exer-cising a casting vote instead of by the drawing of lots, the election hasbeen held contrary to the express provisions of the relevant statute andis therefore, in my opinion, invalid.
For the reasons I have set out-above, I declare the election of the res-pondent as Vice-Chairman of the Council on 30th January 1960 voidand that the petitioner is entitled to the remedy prayed fox by him. Therule nisi issued on the respondent is made absolute. The respondentis ordered to pay the costs of the petitioner fixed at Rs. 250.
Rule nisi made absolute.