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In the Matter of the Election of a COUNCILLOR FOE THE GALUPIADDA WARD OF THE GALLE MUNICIPALITY.
NLR8V300
In the Matter of the Election of a COUNCILLOR FOE
THE GALUPIADDA WARD OF THE GALLE MUNICIPALITY.
Quo warranto-Mandamus-Election of Municipal Councillor-Qualifications-Contracts with Municipality-Powers of the Supreme Court-Courts Ordinance (No. 1 of 1889), s. 46-Municipal Councils Ordinance (No. 7 of 1887), ss. 22, 23, 31, 33, 39, 63-68-Ordinance No. 7 of 1902, s. 20.
The Supreme Court has power to issue a mandate in the nature of quo warranto.
Neither section 22 nor section 23 of the Municipal Councils' Ordinance debars the Supreme Court from issuing a mandate in the nature of a prerogative writ in an appropriate case.
Where an office which it is sought to vacate is already. filled, the appropriate remedy is a mandate in the nature of quo warranto and not a mandamus.
Under section 41 of Ordinance 7 of 1887 it is necessary, for the purpose of the name of a candidate being put upon the list of those qualified to be elected, that he should be duly qualified to be elected at the time when those lists are prepared.
It is, in any event, necessary that he should be qualified at the date of the election itself, even if he does not commence to exercise the duties of the office until after that date.
Section 31 of Ordinance No. 7 of 1887 enacts that "no person shall be qualified to be or continue to be a Councillor who has been sentenced to imprisonment for any infamous crime, or is or becomes bankrupt or insolvent, or who without the permission in writing of the Standing Committee is interested, otherwise than as a shareholder in a Joint Stock Company, in any contract or work made with or done (or the Municipal Council, nor, unless the Council otherwise decide, shall any person continue to be a Councillor who fails to attend three consecutive general meetings."
Held, that a lease would come within the meaning of the term " contract " in the above section.
The term " contract" should receive its full interpretation, and should not be restricted to those contracts alone which a Municipality is authorized by sections 68 to 68 to enter into.
It is not necessary that the contract should be under the corporate seal of the Council. It is sufficient if it is one that may possibly create a conflict between the duty of the individual and his interest as a contractor.
Where a person, who had
entered into a contract with the Municipal Council-to wit, had purchased the
rent of certain tolls belonging to the Council from January 1 to December 31,
1905-at the date of the preparation of the lists of those qualified to be
elected as Councillors, and also at the date of the election, was elected a
member for one of the wards of the said Municipality:
Held, that the said person was not qualified to be elected a Councillor, and
that his election was null and void.
Held, also, that a mandate in the nature of quo warranto should issue to declare the election null and void, and that a mandamus should issue to erase the name of the said person from the list of persons qualified to be elected Councillors.
THIS
was an application by one Denister Perera to have the election of T. de S.
Amarasuriya as a member of the Municipal Council of Galle declared null and
void, and to have his name erased from the list of persons qualified to be
elected as members of the Municipal Council. The following affidavit was
submitted in support of the application: -
"I, Edward Denister Perera of Galle, not being a Christian, solemnly, sincerely,
and truly affirm, declare, and say as follows: -
1. The sitting Member, Mr. Francis Perera, for the Galupiadda Ward of the Galle Municipality having resigned his office, the Chairman of the said Municipality notified in the Ceylon. Government Gazette of the 20th day of October, 1905, that a Councillor for the vacant seat would be elected at an election to be held at the office
