044-SLLR-SLLR-1993-1-FERNANDO-AND-ANOTHER-v.THE-MORATUWA-MULTI-PURPOSE-CO-OPERATIVE-SOCIETY-L.pdf
414
Sri Lanka Law Reports
[1993] 1 Sri L.R.
FERNANDO AND ANOTHER
v.THE MORATUWA MULTI – PURPOSECO – OPERATIVE SOCIETY LTD; AND OTHERS
COURT OF APPEAL.
W. N. D. PERERA J.
C.A. 453/92.
SEPTEMBER 16, OCTOBER 29 AND NOVEMBER 25, 1992.
Mandamus – Co-operative Societies Law No. 5 of 1972 – Rules made underthe Co-operative Societies Law – Rules 5, 6 and 7 of the Co-operative SocietiesRules – Nomination for election to the Branch Committee of the Uturu MoratuwellaBranch of the Moratuwa Multi – Purpose Co-operative Society.
The scheme of the Rules made under the Co-operative Societies Law indicatestwo stages in deciding on the acceptability of a nomination for election to theBranch Committee of the Uturu Moratuwella Branch of the Moratuwa Multi -Purpose Co-operative Society Ltd. At the first stage the elections officer has onan examination of the documents when presented to him, to ascertain whetherthey are in conformity with Rule 5. It is only if he decides on such examinationto accept them as being in conformity that he should proceed to consider theobjections that are presented on the grounds laid down in Rule 7.
Rule 6(3) clearly states that if there has been non-compliance with Rules 5(1),5(2) or 5(3) the nomination must be rejected. Under Rule 5(3), to the nominationmust be attached the declarations of each proposer and seconder. As thedeclarations of the proposer and seconder had not been handed over togetherwith the nomination papers within the stipulated time the impugned nominationpapers should be rejected. Mandamus lies to compel such rejection.
i
APPLICATION for Writ of Mandamus.
Laiith Athulathmudali P.C. with Ranjan Gunaratne, Dr. Ranjith Fernando, MahendraAm&asekera, Ranjeni Morawaka, T. M. S. Nanayakkara, Nalin Dissanayake andGamini Pieris for petitioners.
CA
Fernando and Another v. The Moratuwa Multi – Purpose
Co-operative Society Ltd, and Others (W. N. D. Perera J.)
415
S. Mahenthiran for 1st and 5th to 13th respondents.N. G. Amaratunga S.S.C. for 2nd to 4th respondents.
Cur. adv. vult.
March 03, 1993.
W. N. D. PERERA J.
This is an application for a writ of mandamus on the 2nd, 3rd and4th respondents to this application directing them to give a decisionon the objections raised by the petitioners to the nominationssubmitted by the 5th to the 13th respondents for the election of theBranch Committee of the Uturu Moratuwella Branch of the 1strespondent Society on 30.5.92 and directing them to reject thenominations submitted by them on 30.5.92. The 14th to 20threspondents had also submitted their nominations but no relief isclaimed against them.
The petitioners are members of the said Branch of the 1strespondent Society who had also submitted their nomination papersat this election.
Nominations had been called for in respect of this election inaccordance with the Rules of the Society made by the Commissionerof Co-operative Development under the Co-operative Societies LawNo. 5 of 1972. The 2nd and 3rd respondents are respectively theAssistant Elections Officer attached to the Uturu Moratuwella Branchof the society and the Elections Officer of the Society. The 4threspondent is the senior government officer exercising the powersof the Registrar under the Law No. 5 of 1972.
It is not disputed that the aforesaid Rules which have beenproduced marked P1 in these proceedings govern the conduct ofthese elections. They have been published in the Government GazetteExtraordinary No. 297/7 of 28.12.77.
' ‘sf the time fixed for the presentation of nominations which wererevived by the 2nd respondent, and during the time fixed thereforthe petitioners had presented their objections to the nominations ofthe 5th to the 13th respondents. They fall in to two categories:
416
Sri Lanka Law Reports
[1993] 1 Sri L.R.
In respect of all 5th to 13th respondents on the groundof non compliance with Rule 5(3) of these rules and
In respect of the 5th respondent only, on the ground thathe was not entitled to be a member of the Branch and was thereforedisqualified from standing for this election, in view of By-law 10 ofthe Society. These By-laws have been produced marked P10.
Rule 5 which is set out in the section headed “ Nominations "is as follows :
5.1. Nomination paper-Every candidate who stands for electionto the branch committee shall be proposed by a member of the societyand shall be seconded by another member of the society. Eachcandidate, his proposer and seconder shall be members of the societywhose names appear in the voters list of the branch to which electionsare to be held. The name of each candidate shall be in writing inthe form specified in Shedule A of these rules.
Declaration by a candidate, proposer and seconder –
Each candidate shall attach to his nomination paper adeclaration in the Form specified in Schedule B to these rules.
Each such proposer and seconder shall likewise make adeclaration in the Form specified in Schedule B (1) of these rules.
It is the position of the petitioners that the declarations referredto in rule 5(3) had to be submitted by each candidate together withthe nomination paper and if not so submitted, the elections officerreceiving the nominations, had, by operation of Rule 6(3) to rejectsuch nomination.
Rule 6(3) which occurs in the section headed " receiving ofnominations " reads as follows:
On receipt of such nomination paper, the elections officer/assistant elections officer shall verify that the candidate, the proposerand seconder are not disqualified under Rule 4.1 of these rules andshall reject the nomination of the candidate who is so disqualifiedor whose nomination is not in conformity with rule 5.1 or 5.2 or 5.3of these rules.
The petitioners further contend that the declarations of theproposers and seconders of the 5th to the 13th respondents wer jnot submitted together with their nomination papers within the tin estipulated for the submission of nomination papers and that the 2ndrespondent who admittedly received the nominations was under alegal duty to have rejected them. The 2nd respondent by his affidavit
CAFernando and Another v. The Moratuwa Multi – Purpose
Co-operative Society Ltd, and Others (W. N. 0. Perera J.)417
filed in this application has taken up the position that the aforesaiddeclarations were handed over to him together with the nominationpapers by the 5th to the 13th respondents.
On behalf of the 2nd to the 4th respondents learned Senior StateCounsel further contended that, as a matter of law there was nopublic duty enforceable by a writ of mandamus cast on the 2ndrespondent to have rejected the said nominations in terms of thesaid rules. He cited, in support erf this contention Rule 7 which statesas follows;
7,1
7.2 The objections to any nomination ^hall be only on the groundsspecified below:
the candidate is disqualified under one or more provi-sions of rule 4.1 above
the candidate or the proposer or the seconder of thecandidate is not a person whose name appears in the Voters List.
Rules 7(3), 7 (4) and 7 (5) provide in the case of (b) that wherehe upholds the objection he shall reject such nomination paper andin the case of (a) he shall proceed with the election on the basisof such nomination paper but shall forward such objection to theCommissioner whose decision thereon is final and conclusive.
The scheme of these rules indicates two stages in deciding onthe acceptability of a nomination. At the first stage, the electionsofficer has, on an examination of the documents when presentedto him, to ascertain whether they are in conformity with rule 5. Itis only if he decides on such examination to accept them as beingin conformity that he should proceed to consider the objections thatare presented on the grounds laid down in Rule 7. This appearsto be the only manner in which the rules could be understood. Rule6(3) clearly states that if there has been non-compliance with Rule5 (1), 5 (2) or 5 (3) the nomination must be rejected. In the instantcase, therefore, if the declarations of the proposer or seconder hadnot been handed over together with the nomination papers withinthe stipulated time as required by Rule 6 (2), he should ex meromotu have rejected such nomination. I am therefore of the view tl atif the petitioner can establish, on the material placed before this
418
Sri Lanka Law Reports
[19931 ISriLR.
court that these declarations had not been so handed over, theywould be entitled to the issue of a writ of mandamus compellingthe 1st to the 4th respondents to reject the aforesaid impugnednominations. J. A. de Smith in Judicial Review of Administrative Actionat page 540 (4th Edition) states as follows:
" Mandamus lies to secure the performance of a public duty, inthe performance of which the applicant has a sufficient legal interest.The applicant must show that he has demanded performance of theduty and that performance has been refused by the authority obligedto discharge it." At page 556 (ibid) it is stated thus " Where therespondent has not refused compliance in express terms, it is aquestion of fact whether his conduct evinces a clear determinationnot to comply." In the instant case there is no doubt that both theseconditions are satisfied in regard to the objections raised to thenominations, based on the ground that the aforesaid declarationswere not submitted within the stipulated time.
The next question that has to be determined is whether thedeclarations of the proposers and seconders of these respondentswere submitted together with their nomination papers as claimed bythe 2nd respondent in his affidavit. He further states that havingdisplayed them and having received the objections of the petitionershe handed over all these papers about 100 yards away from theplace nominations were received. The 3rd respondent in his affidavitstates that the 2nd respondent handed over to him the saiddocuments on the said date, time and place. He further states tfiathaving accepted the said documents, he forwarded to the 4threspondent the originals of the said journal, objections, nominationsand declarations except some of the declarations relating to the 5thto the 13th respondents which he handed over around 1.30 p.m.to the Secretary of the 1st respondent Society. No reason has beengiven in this affidavit as to the reason why " some of thedeclarations " were handed over to the Secretary after the otherdocuments had been " forwarded " to the 4th respondent. TheSecretary Aruna Pieris in his affidavit however states that declarationswere handed over to him by the 3rd respondent together with thenomination papers etc. around 1.30 p. m. on this day.
CA
Fernando and Another v. The Moratuwa Multi – Purpose
Co-operative Society Ltd, and Others (W. N. D. Perera J.)
419
The petitioners in their affidavits state that they were present at thetime nominations were handed over and that the aforesaiddeclarations were not submitted by the 5th to the 13th respondents.They claim that this ommission was brought to the notice of the 2ndrespondent who however did not give a ruling thereon. They submittedtheir objections in writing at the appropriate time and the 2ndrespondent had, at their request given an acknowledgement of thereceipt of these objections. This is the document P2 which is admittedby the respondents.
There is thus a direct conflict between the testimony of thepetitioners and that of the 2nd and 3rd respondents in regard towhether the declarations aforesaid were handed over at the time ofreceiving the nominations. This conflict could be resolved only byconsidering all the circumstances attending this incident. If thedeclarations had been in fact handed over there does not appearto be any reason why the petitioners were not so informed at thetime these objections were received. P2 refers specifically to theseobjections and is a request that the nominations referred to, berejected. The 2nd respondent does not state in his affidavit that thepetitioners were informed that the declarations had been received,
■ nor does his endorsement on P2, state so. He had not, admittedly,rejected this objection nor informed the petitioners that he wasdoing so. In this context the averment of the 3rd respondent in hisaffidavit that he forwarded the documents given to him by the 2ndrespondent, except the declarations relating to the 5th to the 13threspondents is significant. There does not appear to be any reason,stated or otherwise why these declarations only were given to thesecretary who claims to have received them together with thenomination papers etc. at 1.30 p.m. from the 3rd respondent. Thereis thus a conflict regarding these declarations in the affidavitssubmitted by the respondents themselves. Learned PresidentsCounsel submitted that the failure of the 2nd respondent to give aruling on this objection was an indication that the declarations inquestion had not been submitted at the relevant time and that thedeclarations now produced had been a subsequent introduction. Whenconsidering all the aforesaid circumstances I am of the view that theconclusion that the declarations required under Rule 5.3 from theproposers and seconders of the 5th to the 13th respondents had notbeen duly handed over is irresistible and that the 2nd respondentshould have rejected their nominations under Rule 6.3. I therefore
420
Sri Lanka L&w Reports
119931 1 Sri LR.
allow this application and order that a Writ^et* Mandamus issuedirecting the 2nd, 3rd and 4th respondents to reject the nominationsof the 5th to the 13th respondents in to the election to the BranchCommittee of the Uturu Moratuwella Branch of the 1st respondentsociety received on 30.5.92. As regards the second ground urgedby the petitioners I am of the view that under Rule 7(b) the questionas to whether a candidate is disqualified to stand for election is amatter for determination by the Commissioner of Co-operativeDevelopment and therefore does not call for a ruling by this courtat this stage. The 1st, 2nd and 3rd respondents and the 5th to the13th respondents will pay the petitioners the costs of this application.
Writ of Mandamus issued.