050-NLR-NLR-V-41-WICKREMESINGHE-v.-ABEYGUNEWARDENE.pdf
Wideremesinghe v. Abeygunewardene.
211
1939Present : Hearne J.
WICKREMESINGHE v. ABEYGUNEWARDENEIn the Matter of an Application for a Writ ofQuo Warranto.
Writ of quo warranto—Election of Basnayake Nilame—Counting of votes—Ballot paper put aside at first—Admitted on an equality of votes—Buddhist Temporalities Ordinance, s. 8 (2) (a) {Cap. 222) ; Interpreta-tion Ordinance, s. 11 (e) (Cap. 2).
At a meeting held under section 8 of the Buddhist TemporalitiesOrdinance for the election of a Basnayake Nilame, the presiding officer, atthe first count of ballot papers, put aside one as doubtful and proceededto sort the rest. Finding that the respondent and another person hadan equal number of votes, he announced that subject- to objection heproposed to allot the ballot paper he had . put aside to the respondent, asit bore the number assigned to him. There being no objection, thepresiding officer declared the respondent duly elected.
Held, that the proceedings were regular.
Held, further, that the words “ executing the functions of an office ”,in section 11 <e) of the Interpretation Ordinance, mean lawfully executingthe functions of an office.
T
HIS was an application for a writ of quo warranto to have the electionof the respondent as Basnayake Nilame of the Dewundera Devale
set aside. The facts are stated in the judgment.
Colvin R. de Silva, for the petitioner.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and C. J.Ranatunge), for the respondent.
W. Fernando, C.C., for the Public Trustee.
Cur. adv. vult.y
212HEARNE J.—Wickremesinghe v. Abeygunewardene.
November 23, 1939. Hearne J.—
On May 6, 1939, a meeting was held under section 8 of the BuddhistTemporalities Ordinance (Cap. 222) to appoint a Basnayake Nilame forthe Sri Vishnu Maha Devale, Dondra. The Public Trustee was in theChair. At the conclusion of the meeting he declared that the respondent“ had received the majority of votes and had been duly appointed to bethe Basnayake Nilame for the Devale ”.
The applicant prayed for the issue of a writ of quo warranto on therespondent who entered an appearance through Counsel to show causewhy the application should not be allowed. Notice was ordered to begiven to the Public Trustee who was also represented by Counsel. ThePublic Trustee filed a record of the proceedings at the meeting held underhis direction, and for the purposes of his arguments Counsel for theapplicant accepted it as a true record of those proceedings.
The objections originally taken were two-fold. The first is containedin paragraphs 7 to 14 of the affidavit filed in support of the applicationwhich read as follows: —
After the votes were cast the Public Trustee opened the ballot boxin the presence of the candidates, the voters and members of the generalpublic, and proceeded to place in separate heaps the votes cast in favourof each candidate.
In the course of thus sorting the votes the Public Trustee rejectedone ballot paper and did not allot it to any of the candidates.
Having scrutinized and sorted out the votes in this manner, thePublic Trustee proceeded to count the votes cast in respect of eachcandidate, beginning with the ballot papers cast in favour of therespondent who had been allotted the No. 1.
He declared and his clerk, under his direction so noted immediately,that 21 votes had been cast in favour of the respondent.
He then counted the ballot papers relating to candidate No. 2 anddeclared, and his clerk so noted immediately, that 21 votes had been castin favour of the said candidate.
Similarly he declared that 6 votes had been cast in favour ofNo. 3.
Having thus declared that an equal number of votes had beenreceived by candidates Nos. 1 and 2 the Public Trustee took up again theballot paper that he had previously rejected.
I understand and verily believe that the said ballot paper bore nofigure whatsoever in that blank portion in which the voters had beenexpressly directed to place the number allotted to the candidate whom
• they favoured ; but the Public Trustee pointed to an alleged figure inanother part of the ballot paper where printed instructions appeared alongwith the seal of the Public Trustee, and declared that the said figureindicated that the voter using the said ballot paper had cast his vote infavour of candidate No. 1.
It will be noted that the affidavit alleges that the Public Trustee hadrejected one of the ballot papers and that he later acted on “ the ballotpaper he had previously rejected ”. In the argument before this Courtthat allegation of fact was abandoned, and the position was accepted, as
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HEARNE J.—Wickremesinghe v. Abeygunevoardene.
the Public Trustee averred, that he announced that with the exceptionof one doubtful vote (this as I understand from Counsel for the applicantthe Public Trustee had put aside in the course of making the count) theresult was that the respondent had received 21 votes, Mr. Goone-sekere 21 votes, and Mr. Dissanayake 6 votes. He then proceededto say that subject to objections that might be raised he proposedgiving the vote he had described as doubtful to the respondent, as ithad on it the number “ 1 ” which was the number which had beenassigned to the respondent. Mr. Goonesekere said it looked like “ 1 ”.No objection having been taken to the course the Public Trustee proposedto adopt he declared the voting as being 22 votes in favour of therespondent and 21, as he had previously announced, in favour ofMr. Goonesekere.
If it is correct, as Counsel for the applicant was instructed to say, thatthe Public Trustee had put aside one of the ballot papers in the course ofhis count, it would undoubtedly, as matters have transpired, have beenbetter if at that time he had decided whether or not he proposed to admitor reject the ballot paper in question. This course would at least haveprevented a reckless allegation being made against him that he had actedso improperly as to have rejected a vote and then admitted it when hefound there was an equality of votes.
But, as Mr. Perera for the respondent has pointed out, there was inwhat the Public Trustee did, no infraction of a rule of law, no disregard ofany rules of procedure that have been laid down (the Ordinance prescribesno particular form of procedure) no departure from principles of justiceand fairplay and no protest from any member of the meeting. In factthe meeting acquiesced in what the Public Trustee proposed to do, andin my opinion the objection is completely without merit.
The second objection is that the Public Trustee had improperly refusedto allow Mr. G. L. Ranasingha, described in the affidavit as an ActingMudaliyar, the right to vote. The relevant portion of the proceedings,accepted by the applicant as correct, is as follows : —
Public Trustee : Anybody acting for the Four Gravets Mudaliyar?
Acting Mudaliyar : Present.
Public Trustee : Have you received a summons ?
Acting Mudaliyar : No, Sir.
Public Trustee : When were you appointed ?
Acting Mudaliyar: On 17th March. The permanent Mudaliyar is illin hospital. I am merely acting for him temporarily.
Public Trustee : Not appointed ?
Acting Mudaliyar: No, Sir.
Public Trustee : Then I will not accept you.
It has been argued that by reason of the provisions of section 8 (2) jf4of the Buddhist Temporalities Ordinance (Cap. 222) read with section11 (e) of the Interpretation Ordinance (Cap. 2) Mr. Ranasingha shouldhave been accorded the right to vote.
Section 11 (e) reads—“ In all Ordinances, for the purpose of indicating
the application of a law to every person or number of persons for the
HEARNE J.—Wickremesinghe v. A beygunewardene.
2X4
time being executing the functions of an office, it shall be deemed tohave been and to be sufficient to mention the official title of the officerexecuting such functions at the time of the passing of the Ordinance”.Clearly the words “ executing the functions of an office ” must beinterpreted as meaning “ lawfully executing the functions of an officeIf they were not so interpreted they would include, as Mr. Perera pointedout, a person who had usurped the functions of a particular office.
I asked Counsel for the applicant who would ordinarily appoint anActing Mudaliyar to execute the functions of the office of Mudaliyar inthe event of the person substantively appointed to such office beingunable, by reason of illness or otherwise, to execute the functions, of hisoffice. I was told the appointment would rest with the Assistant Govern-ment Agent. I take it that Mr. Ranasingha had not been appointed toact by the Assistant Government Agent. If it had been so an affidaviteven at this late stage would have been forthcoming.
Now what this Court has in effect been asked to rule is that a personwho had received no summons to attend the meeting and who had notbeen appointed to act as Mudaliyar by the Government Officer entitledso to do, should have been allowed to vote on his verbal representation,which may or may not be the truth, that he was acting as Mudaliyar.To do justice to Mr. Ranasingha he appeared to claim no more, and thePublic Trustee understood him to claim no more, than that as theMudaliyar was ill (this does riot mean he had ceased to exercise thefunctioris of his office) he was acting as his agent in attending to matterswhich fell within the province of a Mudaliyar. Whatever authority hehad he had apparently derived from the permanent Mudaliyar, in otherwords the permanent Mudaliyar, if he had in fact appointed him to actin the fullest sense, had exercised a power of appointment which isexercisable, not by him but by the Assistant Government Agent. It isunlikely he would have done this—if he had he would probably havesent to Mr. Ranasingha the summons addressed to “ The Mudaliyar,Four Gravets ”—but even if he had it would have been ineffectual in theabsence of a legal right to do so, and Mr. Ranasingha could not be said tohave been lawfully exercising the functions of Mudaliyar.
In my opinion Mr. Ranasingha was rightly excluded from the meeting.He would appear to have thought so too.
Other questions were discussed in the argument of Counsel—whetherthe Public Trustee was exercising a judicial discretion, whether aninformation in the nature of quo warranto lies against a person holding anoffice not created by Charter from the Crown or by Statute, and whetherthe Buddhist Temporalities Ordinance merely recognizes but does notcreate the office of Basnayake Nilame. The last mentioned, Counsel forthe applicant stated, is a historical question which would involve aconsideration of ancient correspondence between the Secretary of Stateand the Ceylon Government. Fortunately, in the view of the factswhich I have taken, it does not arise for determination. Nor do theothers.
I discharge the rule against the respondent with costs.
Rule discharged.