De Silva V. De Silva

 

1941     Present: Wijeyewardene J.

 

DE SILVA v. DE SILVA.

 

In re APPLICATION FOR A WRIT OF Quo WARRANTO.

 

Urban Council-Resignation of Chairman-Letter withdrawing resignation- Election of new Chairman-Proper quorum-Urban Councils Ordinance, No. 61 of 1939, ss. 255 (1) (d) and 248-Courts Ordinance, s. 42. Where the Chairman of an Urban Council wrote to the Secretary stating : " I have the honour to inform you that I shall resign from the office of the Chairman, Urban Council, as from February 1, 1941, and to request you to take the necessary steps for the election of a successor as early as possible ",-

 

Held, that the communication announced the resignation of the Chair­man as from February 1, 1941, and that the office of Chairman became vacant on that day.

 

It was not open to the Chairman to withdraw the resignation even with the consent of the Council.

 

Held, further, that by the joint operation of sections 255 (1) (d) and 248 of Ordinance No. 61 of 1939 a by-law made under Ordinance No. 11 of 1920 fixing the quorum of an Urban District Council applies to an Urban Council constituted under Ordinance No. 61 of 1939.

 

THIS was an application for a writ of quo warranto to question the election of the respondent as Chairman of the Urban Council, Ambalangoda.

 

E. B. Wikremanayake (N. E. Weerasooria, K.C., with him and Barr Kumarakulasingham), for respondent, raised the preliminary objection that the writ of quo warranto did not lie.-Jurisdiction on the Supreme Court to issue mandates is conferred by section 42 of the Courts Ordinance. The Supreme Court can only exercise its jurisdiction within the limits prescribed by that statute-In the matter of the Election of a Member for the Local Board of Jaffna 1 A writ of quo warranto can only be issued to persons enumerated in section 42. The words " other person" must be read eiusdem generis, and mean a person under a duty to act judicially -Application for a writ of Prohibition to the Members of a Field General Court Martial 2; Dankotuwa Estates Co., Ltd. v. The Tea Controller3. The Chairman of an Urban Council is not a judicial officer.

 

H. V. Perera, K.C. (with him M. C. Abeyewardene and D. W. Fernando), for applicant.-Quo warranto lies in respect of an office of a public character even where no judicial functions are exercised. The writ lies on an usurpation of an office made by the Crown by charter or by statute. The word " person " must be interpreted with reference to the writ asked for. The only genus is that of persons exercising " public functions ".

 

H. H. Bosnayake, C.C., for A.-G. (on notice).-If the intention of the Legislature was not to narrow down the scope of these writs the eiusdem generis rule need not be applied (Clapham v. Oliver 4).

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