042-NLR-NLR-V-75-K.-ANDIRIS-Petitioner-and-D.-F.-THOMARATNA-Respondent.pdf
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And iris v. Thomaratna
1969Present: de Kretser, J., and Wijayatilake, J.K. ANDIRIS, Petitioner, and D. F. THOMARATNA, Respondent8. C. 293/69—Application for a Writ of Quo Warranto
Quo 'warranto—Requirement that application should not be filed until respondent hasalready assumed office—Person elected as member of a Village Council—Datewhen he assumes office—Village Councils Ordinance [Cap. 257), s. 11 (J) (2).
A writ of quo warranto does not lie unless the person proceeded against hasalready assumed office at the time when the application for the writ is filed.Accordingly, where a person is alleged to have been elected as a member of aVillage Council when ho was disqualified for election, an application for awrit of quo warratito to set aside the election on that ground will not lie ifobjection is taken in limine that on the date of the application the respondent,although he had been elected, had not yet assumed office as member in confor-mity with the requirements of seotion 11 (2) of the Villago Councils Ordinance.
DE KRETSER, J.—Andiria v. Itlumiaralna
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APPLICATION for a writ of quo warraiUo.
Nimai Senanayake, with M. IF. Amarasinghe, for tho petitioner.
H. W. Jayewardene, Q.C., with O. M. S. Samaraweera, for therespondent.
Cur. adv. vidt.
December 9, 1969. de Kketseb, J.—-
The Petitioner, a Ratepayer of the Weeraketiya Village Council, makesthis application dated 19.5.1969 for a Mandate in the nature of a Writ ofQuo Warranto seeking to have the Election of the Respondent as themember for Ward 2 Muruthawela of the Weeraketiya Village Councildeclared null and void.
On Nomination Day the 22nd of March 1969 the Respondent wasdeclared the Member for this Ward, there being no other nomination.The Petitioner claims that the Respondent was disqualified for electionin that the Respondent was as from 23.12.1964 an elected member forWard 21 of the Mideniya Village Council. He submits that as from thatdata there has been no Election for Members to the Mideniya VillageCouncil nor has such Qouncil been dissolved. He also avers that theRespondent has always lived at Raluwa Medamulana within theElectoral Area of the Mideniya Village Council.
The Respondent has filed his Affidavit denying the correctness ofthose statements of fact.
It is not necessary at this stage to make a finding on the facts as Counselfor the Respondent has taken the objection in limine that the Applica-tion for Quo Warranto does not lie in that it was made on 19.5.1969 bywhich date all that had happened was that on 22.3.1969 the Respondenthad been declared duly elected to hold office in terms of Section 11 (1)of Cap. 257 of the Legislative Enactments as from the 1st day of July1969. He relied on the Case of De Zoysa v. Kulatilleke1 reported in 46
N.L. R. at Page 143 where Wijeyewardene J. held that the Writ of QuoWarranto will not be granted to set aside an Election where at the timethe rule Nisi issued the Respondent had not attended any Meeting ofthe Council or done any act showing that he had acted in or accepted theoffioe.
The averment in the Affidavit of the Respondent that the 1st Meetingof the newly Elected Counoil took place on 18th July 1969 and that itwas at that Meeting that the Respondent sat and voted and was alsoelected Chairman is not challenged.
* (1945) 46 N. L. S. 143.
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DE KJRETSER, J.—Andiria v. Thomarotna
Counsel for the Petitioner submitted that the fact that immediatelyafter the declaration made by the Presiding Officer that Respondent waselected, the Respondent addressed those present and promised that hewould perform his duties as the member of the Ward to the best of hisability and would serve the Ratepayers equally well irrespective ofwhether they were his supporters or not and also announced his intentionto contest the Chairmanship in order to bring honour to them, wouldsuffice to indicate that he had accepted the office.
It appears to me that those words said in the elation of having beeneleoted pointed to no more than a statement of what he intended to dowhen in due course he took his seat in the Council and that there wasplenty of time for him to decide that it was wiser not to use the rightshis election gave him between the time he said all this and the earliesttime he could take his seat to assume his term of office in July 1969.
As was pointed out in Re Armstrong1 the Writ of Quo Warranto doesnot lie unless the Court is satisfied that the person proceeded against hasbeen in actual possession and user of the office.
Halsbury Vol. 11 (SimondsEd.) Page 148 points out that a mere claimto be admitted to office was not sufficient; there had to be a possession oruser as well as a claim. In the instant case the Respondent could not bethe Member for Ward 2 until July 1969 for Section 11 (2) of Cap. 257provided that his predocessor continued in office until that time.
Swan J. pointed out in Dharmaratne v. The Commissioner of Electionset aL2 that where a porson has been irregularly elected as a member of alocal body but had not yet assumed office tho proper remedy to have hiselection set aside is not by Quo Warranto.
’ I uphold the preliminary objection and dismiss the Application withCosts fixed at 25 Guineas.
Wijayattlake, J.—I agree.
Application dismissed.
1 (1856) 25 L. J. Q. B. 238.* (1050) 52 N. L. B. 429.