In The Matter Of An Application For A Writ Of Quo Warranto Deen V. Rajakulendram Et Al.,

1938 Present: Poyser S. P. J.

DEEN v. RAJAKULENDRAM et al.

IN THE MATTER OF AN APPLICATION FOR A WRIT OF QUO warranto.

Writ of quo warranto-Application in respect of appointment of Revenue and Works Inspector of Urban District Council-Office not of a public character-Local Government Ordinance, No. 11 of 1920, s. 47-Right of member to withdraw and refrain from voting.

An application for a writ of quo warranto will lie for usurpation of an office of a public nature and a substantive office and not merely the function or employment of a deputy or servant held at the will and pleasure of others. A writ will not lie in respect of an appointment of a Revenue and Works Inspector made by an Urban District Council under section 47 of the Local Government Ordinance.

A member present at a meeting of the Urban District Council during the discussion of a resolution may withdraw when the voting takes place.

The Court has a discretion to refuse to grant a writ where there is a remedy equally appropriate and effective.

THIS was an application for a writ of quo warranto to have a resolution passed at a meeting of the Urban District Council, Nawalapitiya, expunged and declared void, and a declaration that the added respondent was disqualified from acting as Revenue and Works Inspector.

H. V. Perera, K. C. (with him J. R. Jayawardana), for first and ninth respondents (on a preliminary objection). -Does a writ of quo warranto lie to declare null and void a resolution passed at an Urban District Council meeting? In the first place, the office must be of a public nature created by Charter or by Crown with the consent of the Legislature, viz., by Statute. (Short on Mandamus, ch. III.).

The Urban Council selected a candidate for the post of Revenue Inspector by the casting vote of the Chairman. Such a post is created neither by Charter nor by Statute.

[POYSER J. -The holder of such a post is removable at the pleasure of the Council.]

Under section 47 of Ordinance No. 11 of 1920, an Urban Council possesses large powers to appoint all its necessary officers, to remove any such officers so appointed to fix their salaries, &c., subject to certain restrictions. Assuming such a writ is granted, then it must necessarily be available even against a cooly working under an Urban District Council. No doubt such officers and servants are not holding public offices.

A quo warranto cannot lie on a contract by a mere employee of such an institution.

The appointment is not a permanent one and can be terminated by the body responsible for its appointment and therefore no quo warranto is available. (R. V. Fox 1; Ex parte Richards 2.)

1 8 E. & B. 939.

2 L. R. Q. 3, O. B. D. 368.

The writ is limited or restricted, and therefore cannot be applied universally. Such a writ lies for usurping any office of a public nature. It must be a substantive office and not one which is held at the will and pleasure of others. (Darley v. The Queen 1.)

The allegation must be actually against the person possessing that office. (Ukku Banda v. Government Agent, Southern Province 2.) What is the test to be applied for a writ of quo warranto? Has there been a usurpation of an office of a public nature and an office substantive in character, viz., an office independent in title. (R. V. Speyer; R. V. Cassel 3.)

[POYSER J. -Should all members present at a meeting exercise their votes?]

A member may withdraw at any time before a decision is taken and return after the voting is over. That does not mean such a member participated in the decision of a particular matter.

C. V. Ranawake (with him M. M. I. Kariapper), for petitioner. Where a breach of statutory duty or violation of statutory procedure is alleged the remedy by way of quo warranto lies to test it.

Here there has been a resolution which clearly violates the proce

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