Application For The Mandamus On The Chairman Of The Municipal Council

Present  : Wood Renton A.C.J.   1913.

Application for a Mandamus on the Chairman of the
Municipal Council.

Nomination of candidates for election at councillors-Rejection of all but one nomination paper-One candidate declared duly elected-Application for a mandamus-Office full-Mandamus does not lie-Quo warranto.

On the day appointed for nomination of candidates for election as councillors three nomination papers were submitted to the Chairman of the Municipal Council of Colombo, nominating A, B, and C. The Chairman rejected A's nomination paper on the ground that it was not valid, as the seconder's name did not appear in the list of qualified voters for 1911, and as the lists for 1912 and 1918 were not properly certified. The Chairman also rejected B's nomination paper, as B's name did not appear in the list for 1911, and declared C duly elected. C acted as councillor since his election.

On application by the signatories of the rejected nomination papers for a mandamus on the Chairman to fix a place and date for election of a councillor,-

Held, (1) That the election of C was not merely " colourable," and that a mandamus would not lie, even if the office were not filled.

(2) That the Chairman had jurisdiction to entertain and dispose of such objections to the reception of the nomination papers as those urged against the nomination of A and B.

Where a person has been elected de facto to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can be tried only quo warranto, and a mandamus will not lie unless the election can be shown to be merely colourable. The election will not be " colourable" where the party whose conduct is challenged has the right to elect and acts in good faith, even if he has proceeded upon an erroneous construction of the law.

THE facts are set out in the judgment.

Drieberg, for the first respondent (Chairman of the Municipal Council), took a preliminary objection.-The applicants ask that the respondent be ordered to appoint a date and hour for the election of a councillor; and secondly, that the election of Mr. Perera be declared null and void. The first part is an application for a mandamus, and the second an application for a quo warranto. Mr. Perera has been elected, and he has exercised the functions of a councillor. A mandamus will not lie, because there has been a

de facto election. The only remedy open under the circumstances is the remedy of quo warranto. But the Supreme Court has no jurisdiction to grant a writ in the nature of a quo warranto. See Gomes v. Chairman of the Municipal Council of Colombo and Rockwood,1 In re Jaffna Local Board Election,2 R. v. Beer.3 Counsel also referred to 8 N. L. R. 300, 9 N. L. R. 159, Reg. v. Chester (Mayor of).4 Rules 8 and 9 in the Schedule B (section 21) give the Chairman a right to exercise his discretion in deciding the question as to the validity of a nomination paper. The powers of the Supreme Court were strictly defined by file Courts Ordinance. The Supreme Court cannot by mandamus compel the Chairman to exercise his discretion in a particular way.

H. J. C. Pereira (with him Elliott) took the same objection on behalf of the second respondent (Mr. J. A. Perera).-The use of the word is valid " nomination in rule 9 clearly implies that the Chairman is to judge upon the validity of the nomination paper. Counsel referred to Reg. v. Welchpool (Mayor of).5

Hayley (with him Zoysa, Arulanandam, and V. Grenier), for the petitioner.-The Chairman had no power to decide on irregularities which did not appear on the face of the nomination paper. If ten voters only had subscribed to the nomination paper, whereas the law required twenty, the paper may be rejected as invalid. The Chairman had no power to decide upon any matter which the Ordinance did not specially submit to h

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