Abeyewardene, G.E. V. The Chairman Of The Municipal Council

Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Renton.

IN the Matter of an Application under Section 46 of " The Courts
Ordinance, 1889," and under " The Municipal Councils'
Ordinance, 1887."

G. E. ABEYEWARDENE v. THE CHAIRMAN OF THE
MUNICIPAL COUNCIL, GALLE, AND F. E.
ABEYESUNDARA.

Quo warranto-Jurisdiction of Supreme Court-Refusal to inquire into claim to vote-Dicision of Chairman-Conclusiveness-Persons acquiring qualification subsequent to preparation of revised list- Municipal Councils' Ordinance (No. 7 of 1887), ss. 22 and 38- Courts Ordinance {No. 1 of 1889), s. 46.

Held, that section 38 of " The Municipal Councils' Ordinance, 1889," which enacts that " the Chairman shall immediately notify the fact of a vacancy to the Governor, and if the vacancy he of an elected Councillor shall take the necessary steps for holding an election," does not apply where the election is held in pursuance of an order of the Supreme Court; and that, even if it did apply, an election will not be set aside on the ground of irregularity, unless such irregularity has affected the result of the election or has given rise to some unfairness or mischief.

Reg. v. Cousins(1) and Reg. v. Ward(2) followed.

Section 22 of Ordinance No. 7 of 1887 enacts as follows:-

"If at any such election any question shall arise as to the identity or right, of any person claiming to be qualified to be elected or to vote, the President shall have power to inquire into the same and, if it appears expedient to him, to administer an oath or affirmation to any person present at such meeting whom he shall think fit to examine with reference to such claim. Any person giving false evidence on oath or affirmation at such inquiry shall be liable to be prosecuted under the provisions of the Ceylon Penal Code. The decision of the President on any such claim shall, for the purpose of the said meeting and no further, be final."

Held, that this section was intended to empower the Chairman to investigate the claims of persons who had acquired qualification after the preparation of the revised lists, or who, being disqualified at that date, had since got rid of their disqualification, and not to compel the Chairman to investigate the claims of persons whose names are omitted from the revised list, without any good cause for such omission.

Held, also, that a decision of the President, acting under the above section, is final and conclusive, and not liable to be reviewed by the Supreme Court.

Foot Notes :

(1) 42 L. J. Q. B. 124.

(2) L. R. 8 Q. B. 210.

Reg. v. Collins(1) followed.

In the matter of the application for a writ of quo warranto to declare the election of Danister Perera as Member of the Municipal Council of Galle null and, void(2) overruled.

Quaere, by Lascelles A. C. J. and Middleton J., whether the Supreme Court has power, under section Hi of the Courts' Ordinance (No. 1 of 1889), to issue a prerogative writ in the nature of quo warranto.

THIS was an application for the issue of a mandate in the nature of quo warranto calling upon the respondents to show cause why the election of the second respondent as a member of the Municipal Council of Galle should not be declared void. The grounds of the application are stated in the following petition filed by the applicant: -

"1. The petitioner is a person duly qualified to be elected a Councillor of the Municipal Council of Galle under the provisions of section 9 of the Municipal Councils' Ordinance, No. 7 of 1887
(hereinafter called the Ordinance).

" 2. That the triennial election of a Councillor for ward No. 5, or the Kumbalwella Ward, for the years 1906-1908 was duly held on the 4th day of December, 1905, when the petitioner was duly elected member for the said ward.

" 3. That thereupon the second respondent challenged the validity of the said election a

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