Givendrasingha V. De Mel, R.F.S.

1948 Present : Basnayake J.
 
GIVENDRASINGHA, Petitioner, and R. F. S. DE MEL,
Respondent.
 
In the Matter of an Application for a Writ of Quo WarRanto.

Writ of Quo Warranto-Municipal Council-Election of Mayor-Propose disqualified but Councilor de facto-Validity of election-No. objection taken- Acquiescence-Discretion of Court-Municipal Councils Ordinance, No. 29 of 1947-Section 14 (3).
 
The respondent was proposed for election as Mayor of Colombo by one G who at the time was disqualified from sitting or voting as a Councilor but did in fact sit and vote as such. On an application for a writ of Quo Warranto-
 
Held (i) that the provisions of section 14 (3) of the Municipal Councils Ordinance, No. 29 of 1947, were imperative and that the candidate had to be proposed and seconded ;
 
(ii) that the requirement is satisfied if the proposal is made by a Councilor de facto ;
 
(iii) that the writ being discretionary will not be granted where the petitioner had acquiesced in the election.

APPLICATION for a writ of quo warranto on the Mayor of the Colombo Municipal Council.
 
E. B. Wikramanayake, with M. A. M. Hussain, for the petitioner.- Section 14 (3) of the Municipal Councils Ordinance, No. 29 of 1947, provides that the name of any councillor may be proposed for election as Mayor by any other councillor present. This section imposes the condition precedent to the election of Mayor that the proposer should be a councillor. The proposer in the present case was not a councillor at the time he proposed the respondent for election as Mayor. At that time he had already been appointed Parliamentary Secretary to the Ministry of Labour. By his becoming a Parliamentary Secretary he became a holder of a public office under the Crown and therefore, by that very fact and without any declaration of any court, he vacated his seat in the Municipal Council and became disqualified to sit, vote and transact business in the Municipal Council under section 11 of the Local Authorities Elections Ordinance, No. 53 of 1946.
 
By all the tests applicable the proposer, as Parliamentary Secretary, holds a public office under the Crown. He is appointed by the Governor-General, paid out of public funds, and performs public duties. See In re Mirams 1 and The King v. Whitaker 2.
 
The condition precedent to the election of Mayor that the proposer should be a councillor failed and therefore the respondent has not been duly elected. Failure to obey imperative requirement of law in case of elections would make an election invalid. See Kulatileke v. Raja-karuna et al. 3.
 
H. V. Perera, K.G., with Nihal Ounasekera and E. A. G. de, Silva, for the respondent.-In the first place it is submitted that the proposer is not disqualified to sit and vote in the Municipal Council by reason of being appointed Parliamentary Secretary. The public office contemplated by section 10 (1) of the Local Authorities Elections Ordinance is an office of a permanent nature and an office which exists independently of the person or persons fining the office. According to the scheme of the Orders in Council, 1946 and 1947, the office of Parliamentary Secretary does not seem to be either a permanent office or an office existing independently of the person who fills it. Under the Orders in Council it is not necessary to have any Parliamentary Secretaries at all nor is it necessary, once a Parliamentary Secretary vacates office, to appoint another as Parliamentary Secretary. If the proposer does not hold a public office the petitioner fails.
 
But assuming that the proposer was not duly qualified to sit and vote in the Municipal Council at the relevant time, it is submitted that the petition should fail for the following reasons :-
 
(1) Even though the proposer was not de jure councillor at the relevant time, he was a de facto councillor. He was sitting in the Council and was. taking an active part in the

Click Here to Read the rest of this document