PUNCHI SINGHO, Petitioner, and B. H. PERERA, Respondent

026-NLR-NLR-V-53-PUNCHI-SINGHO-Petitioner-and-B.-H.-PERERA-Respondent.pdf


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GDNASEKABA J.—Punchi Singho v. B. H. Perera
Present: Gunasekara J.PUNCHI SINGHO, Petitioner, and B. H. PERERA, Respondent
S. 0. 478—Application for a Writ of Quo Warranto
Writ of quo warranto—Office already vacant at the time application is made—Doeswrit lie t
An application for a mandate in the nature of a writ of quo warranto doesnot lie where the respondent to the application has already resigned from theoffice in respect of which the application is made and no advantage will be.gained by the issue of the writ.
PPLICATION for a writ of quo warranto in respect of the electionof a member to represent Ward No. 7, BamunumuUa, of the AdikariPattu Village Committee.
M. M. Kumarakulasingham with A. B. Perera for the petitioner.
H. W. Jayewardene for the respondent.
Cur adv. Ovlt.
May 29, 1950. Gonaskkaba J.—
At an election held on the 9th May, 1949, for the purpose of electing amember to represent Ward No. 7, BamunumuUa, of the Adikari PattuVillage Committee, the respondent was declared to have been elected
1 (1939) 19 C. L. Bee. 7.
15 —N.L.R. VoL-UH
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GUNASEKABA J.—Punchi Singho v. B. H. Perera
and he subsequently assumed office and functioned as the member forthat ward. The petitioner, who had been one of the other candidatesfor election and is a registered voter, asks for a declaration that theelection was void and that the respondent’s functioning as a memberwas illegal. The ground of the application is that under Section 10 (1)of the Local Authorities Elections Ordinance No. 53 of 1946, the res-pondent is, and at all material times has been, disqualified by reasonof his-being the holder of a public office under the Crown in Ceylon.
A similar application-made, by the petitioner upon the same ground wasrejected with costs on the 19th December, 1949, because he was not in aposition to show that an order had been published' in the GovernmentGazette in terms of Section 2 (2) of the Ordinance applying" its provisions tothis Village Committee. The petitioner was granted leave, however,to make a fresh application on condition that he hypothecated a sumof Rs. 315 with the Registrar of this Court as security for costs. Hecomplied with this condition on the 7th January, 1950, and filed thepresent application on the 16th January.
It appears that in the meantime, on the 20th December, 1949, the res-pondent had resigned his membership of the Village Committee and thaton the 3rd February, 1950, the Elections Officer gave notice in terms ofSection 27 (2) of the Local Authorities Elections Ordinance, No. 53 of1946, that a by-election would be held to fill the vacancy. The officewas already vacant when the petitioner made his present application for amandate in the nature of a writ of quo warranto and it has" not been shownthat there is any advantage to be gained by the rule being made absolute.The case of Reg. v. Bizard (1866) L.R. 2 Q.B. 55, in which a rule wasmade absolute although the defendant had resigned his office beforethe rule nisi was obtained, is distinguishable, for there the relator claimedthe office for himself as having been duly elected: “If the purpose of theseproceedings were merely to vacate the office, so that a fresh election mighttake place, it is obvious that the resignation of the office would effectthat purpose just as well as the removal of the person from the officeby quo warranto. In this case, however, the relator not only denies thevalidity of the defendant’s election, but he claims to have been himselfelected into the office ’’ (per Cockburn, C.J. at p. 57).
I would discharge the rule for the reason that the office was vacantat the time of the application. It is apparent, however, that the res-pondent resigned'only after , the petitioner had by the earlier applicationdrawn attention to his disqualification, and that at the time of his resig-nation on the 20th December, he had reason .to expect that the petitionerwould make the present application if he were kept in ignorance of thefact of the resignation. I am satisfied that the present application wouldnot have been made if the respondent had. only informed the petitionerthat he had resigned his membership of the Village Committee. On theother hand, if the petitioner had acted with circumspection, he couldhave ascertained before he made his present application whether therespondent continued to hold office. In these circumstances I thinkit is proper that each party should bear his own costs. The rule is dis-charged.
Rule discharged.