Inasitamby V. Government Agent

1932 Present  : Jayewardene A.J.

INASITAMBY v. GOVERNMENT AGENT, NORTHERN
PROVINCE.

IN THE MATTER OF AN APPLICATION FOR A WRIT OF Mandamus.

Mandamus-Election to Village Committee-Method of voting-Candidate acquiescing in method of election-Discretion of Court-Consequences of issue of writ.

A candidate at an election to a Village Committee who has acquiesced in the method of voting adopted at the meeting is estopped from applying for a writ of mandamus on the ground that the procedure was irregular.

Where a candidate is proposed for election it is not necessary to record the number of votes cast against him.

A Court before issuing a writ of mandamus, is entitled to take into consideration the consequences which the issue of the writ will entail.

APPLICATION for a writ of mandamus on the Government Agent of Northern Province.

H. V. Perera (with him S. Alles), for petitioner.-This is an application based on section 12 (2) of the Village Communities Ordinance, No. 9 of 1924. The question of the election of members to a Village Committee is a question or resolution under this section and therefore has to be determined by a majority of the votes of those present. This procedure suggests that those against a particular member are entitled to have their votes recorded. Section 12 (3) gives the presiding officer a casting vote and therefore we must suppose that the votes for and against a particular individual have been taken. Section 13 (1) distinctly states that " at any meeting all questions and resolutions proposed thereat and the number of votes given for and against the same " shall be entered in the minutes. It does not necessarily follow that all those who do not vote for a particular candidate are against his election, because there may be many who may refrain from voting. This method presupposes the fact that the presiding officer knew the exact number of voters present, and in his own statement he says the number was between 600 to 700. A voter does not exercise his privilege by merely sitting in the hall, but by putting up his hand for or against the election of a particular candidate.

M. W. H. de Silva, Acting Deputy S.-G. (with him H. Basnayake, C:C.), for respondent.-This election was really under section 22 of Ordinance No. 9 of 1924. The Government Agent adopted the most practical method for the election of committee members. As the number of committee members is fixed, it is not possible to elect them one by one according to the majority of votes cast for or against each, as then the number elected may be less or more than the number required. As the petitioner acquiesced in the procedure adopted by the presiding officer, he is now estopped from impeaching the validity of the election.

Counsel cited R. v. Slythe [1 6 B. & G. 240.]; R. v. Parry [2 6 Ad. & E. 810. ] ; Madanayake v. Schrader et al.[ 3 29 N. L. R. 389.] ; Wijeratne v. Obeyesekere [4 30 N. L. R. 153.]; Kartigesu v. Government Agent, Northern Province.[5 3 31 N. L. R. 141.]

S. Alles, in reply.

June 6, 1932. JAYEWARDENE A.J.-

The Government Agent, Northern Province, issued a notice dated April 1, 1932, convening a meeting of the inhabitants of the subdivision of Pandaterippu comprising six villages to be held at St. Anthony's Church premises, Mathakal, on Thursday, May 5, 1932, at 3.30 P.M., for the purpose-

(a) of deciding the number of members (not less than six) to serve on the Village Committee to be elected for the subdivision and of electing such a Village Committee to hold office for three years from July 1, 1932, and

(b) of deciding whether the power of making rules should be delegated to such committee.

A meeting was accordingly held, and it was duly decided that a committee of forty be elected. Thereafter the election of the committee of forty took place. The petitioner states that the Government Agent proceeded to read out the names mentioned in two l

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