Perera V. Rajapakse

Present: De Sampayo J.

PERERA v. RAJAPAKSE.

In the Matter of an Application for a Writ of quo warranto in
respect of the Office of Chairman of the Urban
District Council of Negombo.

Writ of quo warranto-Discretionary writ-Undue delay-Chairman presiding over election meeting-Motion lapsing fur want of a seconder.

The jurisdiction of the Supreme Court in respect of an application for a writ of quo warranto is entirely discretionary, and in exercising that discretion any circumstance of undue delay must be taken into consideration.

A person who presides at a meeting of an Urban District Council. summoned specially for the purpose of electing a Chairman of the Council, may himself be elected Chairman.

Semble, a motion which has been defeated or which has lapsed for want of a seconder cannot be renewed at the same meeting.

AN application for a mandate in the nature of quo warranto to test the legality of the proceedings of the Urban District Council of Negombo. held on January 6, 1925, at which the respondent, Mr. A. E. Rajapakse, was elected Chairman. The respondent was moved into the chair to preside at the meeting. Then a member, Mr. Ranasinghe moved that the respondent be elected Chairman of the Council for two years. This was seconded. Mr. Herft proposed as an amendment that the petitioner, Mr. J. H. Perera, be elected Chairman, but there was no seconder, and the motion fell through. Mr. Vijeyratnam then proposed that Mr. Ranasinghe be elected Chairman, whereupon Mr. Ranasinghe begged to be excused. Mr. Vijeyratnam then said that, in view of Mr. Ranasinghe's refusal, he seconded Mr. Merit's motion for the election of the petitioner. Objection was then taken by another member that Mr. Vijeyratnam was out of order. Mr. Herft then said that he would again propose Mr. Perera's name. On an objection by Mr. Ranasinghe, the Chairman ruled that Mr. Herft's motion could not be proposed again. and, as his name was the only one before the meeting, declared himself elected.

Allan Drieberg, K. C. (with Cooray and Ameresekere), for the petitioner. -The respondent should not have presided over the meeting when he knew that his name was being proposed as Chairman. As President he would be called upon to rule on matters arising in the course of the election. It is against the principles of justice that a man should be judge in his own cause (Queen

v owens1). It is not correct to say that the proposal of Mr. Herft was in the nature of an amendment. It was a substantive motion on the only matter before the house, viz., the election of the Chairman. It was not a motion limiting the previous one. It was a distinct proposition. The remedy open to the applicant is one of a mandate in the nature of quo warranto (Application for a Mandamus on Chairman, Municipal Council 2 ).

R. L. Perera (with him Canekaratne and H. I. Perera). for respondent. -The issue of the writ is purely discretionary. It will not be exercised in case of delay or triviality (Mani Lal Nahar v. Mourdad Rahaman 3).

No objection has been raised by the proposer Mr. Herft, who acquiesced in the proceedings, when the minutes were confirmed.

Drieberg, K. C., in reply cited Henderson v. Bank of Australia. ' Delay has been sufficiently explained.

April 0, 192. "). De Sampayo J. -

The jurisdiction of this Court in respect of applications for mandates in the nature of quo warranto is entirely discretionary. and any circumstance of undue delay must be taken into consideration. The election of the respondent as Chairman of the Urban District Council of Negombo. which is intended to be attacked, took place on January 6, 1925, and this application was not made till February 20, 1925. Accordingly, when the papers were submitted. this Court, while issuing notice on the respondent, required the petitioner to explain the delay. For this purpose the petitioner has filed an affidavit dated March 23. 1925. It is in the foll

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