036-NLR-NLR-V-31-KARTIGESU-v.-GOVERNMENT-AGENT,-NORTHERN-PROVINCE.pdf
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Present : Maartensz A.J.
KARTIGESU v. GOVERNMENT AGENT,NORTHERN PROVINCE.Mandamus—Election of Village Committee—Resolution to vote by groupsof villages—Bona fide election—Village Communities Ordinance,No. 9 of 1924, ss. 9 and 22.
Where a Government Agent summoned a .meeting of theinhabitants of a subdivision under the Village CommunitiesOrdinance for the election of a Village Committee and had com-plied with the provisions of sections 9 and 22 of the Ordinance,and where it was resolved at the meeting that the voting Bhould beby groups of villages or wards,—
Held, that the election cannot be said to be merely colourableand that no mandamus would lie against the GovernmentAgent directing him to hold a fresh election.
A
PPLICATION for a writ of mandamus on the GovernmentAgent of the Northern Province, directing him to hold a
meeting for the election of a Village Committee for the Nallursubdivision of the Province. The petition stated that a meetingwas held on April 18, 1929, to elect a Village Committee presidedover by the Government Agent. At the meeting it was resolvedby a majority that that the voting should be by groups of villages orwards, to. each of which a number of members was allotted inproportion to the number of inhabitants in it.
It was submitted that the motions that were passed by amajority at the meeting were ultra vires as—
These were not stated to be the objects of the meeting in thewritten notice issued by the Government Agent.
They substantially limited the rights of the inhabitantsconferred on them by section 14 (1) of Ordinance No. 9 of
^
• ,
H. V. Perera (with Ramachandra), in support.
Mcrvyn Fonseka, <7.(7., for the Government Agent.
Be Zoysa, E.C. (with Subramaniam), for second to twenty-ninthrespondents.
September 28, 1929. Maartensz A.J.—
This is an application for a writ of mandamus on the Govern-ment Agent, Northern Province, directing him to convene and holda meeting for the election of a Village Committee for the Nallursubdivision as required by Ordinance No. 9 of 1924.
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1929.
Maartensz
A.J.
Karligesu
v.
OovemmentAgent,Northern. Province
It is admitted that a meeting was held on April 18, 1929, to electa Village Committee to consist of not less than six persons for thesubdivision and that it was decided at the meeting that thereshould be twenty-eight members in the Village Committee.
The petitioner’s complaint is against the procedure observedin electing the members of the Committee.
The petitioner avers that—
The Government Agent explained that the election of thetwenty-eight members may be made in either of two ways,namely, by voting en masse or by groups of villages (or wards),consequently a motion was proposed and seconded that voting beby wards and a counter motion proposed and seconded thatvoting be en masse, and it was decided by majority that votingbe by groups of villages.
At the said meeting the Government Agent furthersuggested that the number of members elected for each ward(or group of villages) should be proportioned to the number ofinhabitants in that ward, and that the subdivision of Nallurbe divided into four wards, namely : —
Tirunelveli East, which should thus have eleven members.
Tirunelveli West, whioh should thus have eight members..
Nallur, which should thus have six members.
Vannarponnai North-west, which should thus have threemembers.
These suggestions were adopted and passed by a majority atthe meeting.,
The election of members then proceeded on this basis.As a result of these resolutions the voting for each ward wasconfined to the inhabitants in that ward only, and the menelected for each ward were also confined to inhabitants of thatward.
The petitioner did not agree to (Idie division of the sub-division of Nallur into wards or to the election of members inproportion to the inhabitants in each ward or to the restrictionsof his rights as an elector, and that several others too refusedto agree to these resolutions, and the petitioner annexes affidavitsmarked “ B ” to that effect from some of them.
The petitioner submits— „
That the motions which were passed by a majority at themeeting, namely, that voting, be done by wards or groups ofvillages, that the subdivision of Nallur be divided fnto fourwards, that the number of members elected for each ward should
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be proportional to the number of inhabitants in that ward, areultra vires for the following among other reasons: —
As these were not stated to be the objects of .the meeting
in the written notice issued by the Government Agent,under section 9 of Ordinance No. 9 of 1924.
As substantially limiting the rights conferred on the
inhabitants by section 14 (1) of Ordinance No. 9 of 1924.The petitioner prays—
That this Court may be pleased to declare the said electionheld by the Government Agent on April 18, 1929, nulland void and to direct the Government Agent to hold anothermeeting for the due election of a Village Committee for thesubdivision of Nallur.
The petition is dated June 13, 1929, and was forwarded to theRegistrar with a covering letter dated June 14 or 15. It waslisted on June 19, and dismissed for want of appearance.
An application to relist the application was made and allowedon June 28, 1929, and a notice on the Government Agent wasallowed on July 19. I understand that the Court ordered noticeon the’ Committee members as well. They were in view of theterms of the prayer of the petition clearly entitled to notice.
The application was opposed on the following grounds: —
That there had been undue delay in the making of the
application.
That when the matter actually came up for consideration
the office was full and the application, if any, should havebeen for a writ of quo warranto.
That the Government Agen; had carried out the statutory
duty imposed upon him by the Ordinance.
That the procedure followed was not ultra vires.
The third objection is in my opinion fatal to the application.
The notice convening the meeting held on April 18 was dulypublished and the objects for which the meeting was to be heldwere set out in the notice as follows: —
2. The objects for which the meeting is to be held are—
To elect a Village Committee to. consist of not less than
six persons for such subdivision to hold office for threeyears from July 1, 1929;
To decide whether the power of making rules should be
delegated to such Committee;- and
To decide whether the Chairman of such Committee
should be elected by the Committee o'r whether the ChiefHeadman of the djvision should be ex officio Chairman..
J. D. Brown,
Government Agent, Northern Province.
1989.
Maabtensz
A.J.
' Kartigem'v.
Oovemment
Agent,
Northern
Province
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1929. The meeting was convened in pursuance of the provisions of„ —1—section 22 and section 9 of Ordinance No. 9 of 1924. Section 9
Maabtenszj■
J. enacts as follows:—
Kartigesuv.
(Government
Agent*
Northern
Province
The Government Agent shall, one month at least before theday of holding any such meeting, give notice by beat oftom-tom and by causing written notices to be affixed insuch places within the subdivision as are in his opinionbest adapted for giving the greatest publicity thereto, ofthe time and place appointed for holding such meetings,and of the objects for which the same is to be held, andshall, hi such notices, call upon the inhabitants to attendin person at such meetings.
What took place at the meeting is recorded in the minutesthus: —
Object of meeting explained.
Qualifications of voters and cadidates explained.
As regards numbers, two motions were moved. One for
twenty-eight (the present number), one for twenty.
The large majority vote for an elected Chairman.
I put to the assembly that they depute to the Committee
the power of making rules.—Carried unanimously.
The ' persons to serve on the Committee were then electedaccording to the resolutions passed by the majority of those present.
The Government Agent clearly carried out the dutiesJ imposedupon him by sections 9 and 22, and if a Committee was not elected,it was the inhabitants and not the Government Agent that were indefault in the performance of a statutory duty.
The case In re the Application for a Writ of Mandamus on theGovernment Agent, Northern Provincetl can be differentiated fromthe present case; for in that case objection was taken to thelegality of the meeting at which the Committee was elected on theground that the meeting was held at a place which was nbt theplace appointed. Dalton J. held that the meeting was not heldat the place appointed in the notice for holding the meeting asrequired by section 10 (1) of the Ordinance No. 9 of 1924, and heldthat the election of the Committee at such meeting was void, andgranted a writ of mandamus on the Government Agent directinghim to hold a meeting for the election of a Village Committee.
In the case of Regina v. The Mayor t Aldermen, and Burgesses ofthe Borough of Leeds 2 cited by the applicant, Radford Potts appliedfor and obtained a mandamus on the Mayor, Aldermen, andBurgesses of the Borough of Leeds, commanding them to receiveand count his vote at the corporate meetings of the Council of theBorough, as he had been duly elected a councillor for Mill Hill
1 28 N. L. J?. 323.* {1341) 11 Adolphus and Ellis 512.
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Ward in the said Borough, and having duly qualified, and aooeptedthe said office of councillor and to permit him in other respectsto exercise the office of councillor. It was not an application for adeclaration that another person was not duly elected.,
In the case of Rex v. The Mayor, Aldermen, and Burgesses of theCity and Borough of Oxford1 it was held that—
If a councillor of a corporation be ousted, and another elected,in his stead, and such election be merely colourable, amandamus will go to permit the ousted party to exercisehis office, but not to restore him to his office. If suchouster and election be bona fido, the Court will notgrant a mandamus in favour of the party displaced;the proper proceeding is by quo warranto against theparty holding the office de facto.
In tile present case if there was a question whether the petitioneror one of the respondents was duly elected* it might have beenopen to him to apply for a mandamus to permit him to act onthe Committee. But there ib no such question and no suchapplication.
In the Matter of an Application for a Mandamus on the Chairman,Municipal Council, Colombo,9 Wood Renton, then Acting ChiefJustice, held—
That where a person has been elected de facto to a corporateoffice and has accepted and acted in .the office, the validityof the election and the title to the office can be tried onlyquo warranto, and a mandamus will not lie unless theelection can be shown to be merely colourable.
He held further that—
The election will not be “ colourable " where the party whoseconduct is challenged has the right to elect and acts ingood faith, even if he has proceeded upon an erroneousconstruction of the law.
It is not alleged in the present case that the Government Agentdid not act in good faith, and if he had the right to elect, whichhe had not, he has if anything proceeded upon an erroneousconstruction of the law, and the petitioner would not be entitledto a writ of mandamus.
As I have observed before, it was not the Government Agentbut the inhabitants of the subdivision who had the right to elect,and I am of opinion that the application for a mandamus on theGovernment Agent has been misconceived.
1929.
Maabtbnsz
A.J.
Kartigtsu
v.
Government
Agent,
Northern
Province
1 (1337) 6 Adolphus and EUis 349.
* (1913) IS N. L. R. 97.
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1929.
Maartensz
A.J.
Kartigeau
v.
Government.Agent,NorthernProvince
The inhabitants of the subdivision who had a right to electhave so far as I can see acted in good faith in 'electing the com-mittee members by voting by wards; and even if they proceededupon an erroneous construction of the law. the election cannot besai'd to be merely “ colourable.’'
As in my opinion this objection is fatal to the application I neednot discuss the other objection raised by the respondents. Irefuse to grant the writ applied for. The petitioner will pay thecosts of the Government Agent and the second to twenty-ninthrespondents. A regards the latter, they will be only entitled toone set of costs.
Rule dischargedL ■