Simeon Fernando V. Goonesekera

1946  Present : Dias J.

SIMEON FERNANDO, Petitioner and GOONESEKERA, Respondent.

APPLICATION FOR WRIT OF  Quo Warranto AGAINST G. D. G.
GOONESEKERA

Village Committee election-Disqualification of a member elected-No objection raised on date of nomination-Right of such member to vote in election of Chairman-Affidavit-Declarant must testify to facts known by him- Civil procedure Code., s. 181-Village Communities Ordinance (Cap. 198). ss. 13, 15.

A person who is disqualified to be elected as a member of a Village Committee but who has been elected without any protest as to his  qualification is entitled, unless his election is set aside by subsequent application to the supreme Court, to vote at all the deliberations of the committee including that held for the purpose of electing the Chairman.

An affidavit regarding his belief may be admitted provided reasonable grounds for such belief be set forth in the affidavit.

APPLICATION for a writ of quo warranto to have the election of the  Village Committee of Kanuwana declared null and void on the ground that he failed to obtain the majority of the votes of the members legally entitled to vote at the meeting at which he was elected.

H. V. Perera, K. C. (with him E. B. Wikramanayake and E. O, F. de Silva )  for the petitioner.

N. E. Weerasooria, K. C (with him H. A. Koattegoda), for the respondent.

Cur. adv. vult.

October 29, 1946, DIAS J-

The petitioner, W. Simeon Fernando, Prayed for a writ quo warranto to oust the respondent, who is the de facto Chairman of the Village Committee of Kanuwana on the ground that his election to that office is null  and void on the ground that he failed to obtain the majority of the votes of the members legally entitled to vote at the meeting at which he was elected.

The village Committee of Kanuwana consists of thirty-one members. The respondent, G. Don Gilbert Goonesekera, and one Norbert Sri Vardhana are both duly elected members. On nomination day one P. Simon Peter Perera, admittedly an ex-convict, who has served a sentence of two years rigorous imprisonment for attempted murder, was nominated for one of the wards. There being no other candidate, and no

objection having been raised by anybody as to his qualifications for  election, he was declared to be duly elected. Section 13(e) of the Village Communities Ordinance (Chap. 198) disqualifies for election a Person who has served a sentence of imprisonment of either description for a period of three months or any longer period, on conviction of any ?crime? within the meaning of the Prevention of Crimes Ordinance (Chap. 18). It is common ground that the offence of attempted murder is such a ?crime.? Obviously, therefore, this ex-convict was disqualified, but nobody appears to have raised any objection, until this trouble arose. See section 15.

After the election of the members, the next thing to be done is to elect the Chairman and the Vice-Chairman. Under the repealed Ordinance (section 20 (7) the voting had to be by ?secret ballot?. By section 27 of the existing Ordinance (as amended by Ordinance No. 11 of 1940, section 7) the election of the Chairman and the Vice-Chairman is by ballot. The presiding officer at such election is the Government Agent. Such election is to be conducted, subject the provisions of section 27 (1), in accordance with such procedure as may be prescribed by rules under section 59 of the Ordinance. These rules of procedure were not cited at the argument. They will be found in Volume III. Of the subsidiary Legislation of Ceylon for 1941 at pages 322-323. I note in passing that section 59 of the principal Ordinance has been successively  amended by Ordinance Nos. 11 of 1940, section 12, and 54 of 1942, section 24.

Part III. Of the rules provide the procedure to be followed at the Election of a chairman and a vice-chairman. I reproduce the relevant
Rule:-

2 (a) If there are two cand

Click Here to Read the rest of this document