1938   Present : Keuneman A.J.

MARIKAR v. PUNCHIHEWA

In re APPLICATION FOR A WRIT OF QUO Warranto.

Urban District Council-Election of Chairman-No quorum-Question not put to the vote-Election invalid-By-law 1 (.f).

Where the Chairman of an Urban District Council was elected at a meeting of the Council at which the number of members present was not sufficient to form a quorum, and where the question was not duly put to the meeting and a vote taken,-

Held, that the election of the Chairman was invalid.

The language of by-law 1 (f), "no business shall be transacted at any meeting unless a quorum of at least six Councillors is present", is imperative.

THIS was an application for a writ of quo warranto on the Chairman of the U. D. C, Nawalapitiya.

N. E. Weerasooria (with him H. A Wijeymanne), for petitioner.

H. V. Perera, K. C. (with him G. P. J. Kurukulasuriya), for respondent..

Cur. adv. vult.'

January 31, 1938. KEUNEMAN A.J.-

The petitioner applied for a writ of, quo warranto declaring the election, of the respondent as Chairman of the Nawalapitiya Urban District Council null and void, and that the respondent is not entitled to function as Chairman.

The respondent was elected Chairman on January 7, 1936, and under the terms of Ordinance No. 11 of 1920, his term of office expired on January 6, 1938, but he was eligible for re-election. The Council consisted of nine members, and under the by-laws 6 members were necessary to form a quorum at a meeting. A meeting of the Council was held on December 21, 1937, and the eleventh item on the agenda was the election of a Chairman for 1938.

When the eleventh item was reached, according to the minutes which have been produced, there was a certain amount of discussion, and the names of the respondent and of Mr. Rajakulendram were duly propposed and seconded. There was further discussion as to whether the respondent should vacate the chair pro tern, but the respondent refused to do so. Mr. Rajakulendram proposed that the matter be postponed for January 7, and this was seconded by the petitioner. The respondent as Chairman ruled that this proposal was out of order. It was not stated on what ground this ruling was made, nor did any explanation of this ruling emerge at the inquiry before me.

Mr. Rajakulendram, the petitioner, and two other members then withdrew from the meeting. Admittedly, thereafter only five members were present at the meeting, and that number was insufficient for a quorum. The Chairman thereafter suspended the session at that point. The reason given was disorderly conduct. At the inquiry before me, counsel for the respondent argued the case on the footing that the session was suspended for want of a quorum.

According to the affidavits submitted for the petitioner, the meeting on that occasion was adjourned for January 7, and that is borne out by the affidavit of the respondent himself.

On the morning of January 5, the petitioner was served with a notice dated January 4 to the effect that the adjourned meeting would beheld on January 6. The petitioner and three other members informed the-Secretary in writing that they were unable to attend the meeting.

On January 6, five members including the respondent met. According to the minutes, the Chairman addressed the members, and ruled that " in the absence of the members who walked out, this constituted the suspended sitting of the session as it stood at item 11 ". The respondent said " he would like to confirm the indications."

Thereafter the minutes run as follows :-"The Chairman asked whether any amongst those present were against Mr. Punchihewa's candidature. There being none, he inquired whether there were any for Mr. Rajakulendram. There being none, he said the position was now very clear. Thereupon the Chairman declared Mr. Punchihewa re-elected Chairman ".

The Medical Officer of Health who was present then stated that to his, mind it ap