035-NLR-NLR-V-76-P.-L.-E.-ALWIS-Petitioner-and-W.-M.-P.-B.-UNNATENNE-Respondent.pdf
180
AXLES, J.—Alunt v.' Unnatenne
1968
Present: A lies, J., and YVijayatilake, J,
P. L. E. ALWIS, Petitioner, and W. M. P. B. UNNATENNE,
Respondent
S. C. 144168—In th^ matter of an Application for a mandate inthe nature of a Writ of Quo Warranto
Local Authorities Elections Ordinance (Cap. 262), as amended by ActNo. 15 of 1965—Sections 8, 9, 10, 69—Meaning of term “ordinarilyresident ” in s. 8—Unseating of a member of a local body on theground of want of proper residential qualification—Circumstanceswhen it will not be ordered by Court—Distinction between non-qualification and disqualification—Quo warranto.
Section 8 of the Local Authorities Elections Ordinance, as amendedby Act No. 15 of 1965, visualises the case of a candidate havingmore than one residence, provided that he is usually resident ina ward of the electoral area.
The amended section 69 of the Local Authorities ElectionsOrdinance prevents applications of a purely technical nature beingmade to unseat a member of a local body. Accordingly, even if,technically, there was a failure to comply with section 8 in regardto residence, under section 69 an election is not invalid if it wasconducted in accordance with the principles laid down in theOrdinance and the non-compliance with section 8 did not affectthe result of the election. In such a case a writ of quo warrantowill not be issued.
Izzadeen Mohamed, with S. C. Crossette-Thambiah, for thepetitioner.
Felix R. Dias Bandarartaike, with Nihal Jayawickrama, tor therespondent.
September 17, 1968. Alles, J.—In this application for the issue of a mandate in the natureof a. writ of quo warranto on the ground that the respondentwas not qualified, to be elected or hold office as a Member of the"Municipal Council of Kandy; (he petition®* has prayed, inter alia,tor'a declaration that the election of the respondent is void underthe Local Authorities Elections Ordinance. If that fhrayer cannotbe allowed, the question whether the writ lies In a case of thiskind is only of academic interest.
Application for
a writ of Quo Warranto.
Cur. adv. vuIt.
ALLES, J.—Altifi* v. Dnnatenne
181
At the Municipal Council elections held on the 19th February1968, the respondent was elected to represent the BuwelikadeWard in the Kandy Municipal Council. According to section 8of the Local Authorities Elections Ordinance (Cap. 262) as itoriginally read:
“ Every person who is not disqualified as provided bysection 9 shall be qualified at any time for election as amember for any ward of an electoral area if—
he was, on the date of the commencement of the
preparation or revision of the parliamentary registerfor the time. being in operation for any electoraldistrict in which that electoral area or any partthereof is situated, qualified to have his name enteredin that register ; and
he was, on the date aforesaid, resident, in that ward or
any other ward of the same electoral area. ”
The respondent had complied with .paragraph (a) of section 8since his name was entered in the. relevant Register forthe Senkadagala electorate. In regard to paragraph (b), theOrdinance was amended by Act No. 15 of 1965 to read—
“ (b) he was, on the first day of June m the year of thecommencement of the preparation or revision of thatregister, ordinarily resident in that ward or any otherward of the same electoral area.”
The amendment therefore visualises the case of a candidatehaving more than one residence and it contemplates that thecandidate should usually be resident in a ward of the electoralarea. Section 69 of the Ordinance was also amended to providethat an election shall not be declared invalid by reason of anyfailure to comply with any provision of the Ordinance relatingto elections if it appears that the election was conducted inaccordance with the principles laid down in such provisions andthat such failure did not affect the result of the election. Theseamendments appear to have been passed with the object ofpreventing applications of a purely technical nature being madeto unseat a member of a local body thereby hampering him inthe discharge of his duties, as a member of such body.
Where the result of the election has not . been , affected by thefailure relied upon by the petitioner and such failure is onewhich does not fall within the ambit of section 9,- which statesthe grounds of disqualification, the Courts should be slow tointerfere with the democratic right of the electors to select thecandidate of their choice. This appears to be the main objectof extending section 69 to all provisions of the Ordinance.
182
ALLES, J.—Alwis v.- Unnatenne
According to the affidavit filed by the respondent supportedby that of his witnesses, he- stated that he was a Member of theMunicipal Council of Kandy since 1961 representing theWatapuluwa Ward and that since 1961, although his permanentresidence was at Tennekumbura, outside the limits of theMunicipal Council limits of Kandy where he lives with his wifeand family, he had been resident for three days in the week atpremises No. 8, Watapuluwa, where his mother lived; and shehad set apart a portion of the premises for his use which heoccupied during these three days. He therefore maintained thathe was ordinarily resident within the Watapuluwa Ward of theSenkadagala electorate and that therefore he was qualified formembership to represent a ward in the Kandy Municipal Council.In 39 N.L.R. 409, Maartensz, J. in similar circumstances held thatthere was no law that prevented a person from acquiring aresidential qualification in a place other than that where hiswife and family reside if the object of his change of residencewas to enable him to acquire that residential qualification. Evenif there be a strict non-compliance with section 8 in regard toresidence, I am of the view that under section 69 of the Ordinancethe election was not invalid since it was conducted in accordancewith the principles laid down in the- Ordinance and the failuredid not affect the result of the election.
Learned Counsel for the respondent submitted that there wasa distinction between non-qualification as stated in section 8and disqualification as stated in section 9 of the Ordinance. Theprovisions of section 9 would seem to indicate that on groundsof public policy the Legislature had laid down certain groundsof disqualification. When a person is disqualified under section9, his seat or office becomes ipso facto vacant under section 10and under section 10 (2), steps may be taken by the authoritiesto fill the vacant seat. I am inclined to agree with the submissionof Counsel for the respondent that a seat does not ipso factobecome vacant by the want of qualification under section 8 readwith section 69 and that it will not be open to this Court todeclare the election of the respondent invalid as prayed for inthe prayer to the petitioner’s application as there is nothing toshow that the alleged failure affected the result of the election.It is therefore unnecessary to consider the various points thathave been raised by Counsel for the petitioner. He has referredto a series of cases showing the development of the law inEngland relating to elections, but, in my view, they are not quiteappropriate in the context of the present application.
Thangiahv. Yoonua
183
This, therefore, is not an appropriate case which calls for theexercise of the discretionary powers of this. Court for the issueof a mandate in the nature of a writ of quo warranto. Theapplication is dismissed with costs which I fix at Rs. 152.50.
Wijayattlake, J.—I agree.
Application dismissed.