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MOHAMED CASSIM v. ABDUL HAMEED
NLR51V310
1950 Present: Windham J.
MOHAMED CASSIM, Petitioner, and ABDUL HAMEED, Respondent.
S. C. 348-Application for a Writ of Quo Warranto on M. Y. Abdul Hameed.
Quo Warranto-Licensed process
server-Right to be member or Chairman of Village Committee-Meaning of " holder
of any public office under the Grown "- Fiscals Ordinance (Cap. 8), s. 4-Local
Authorities Elections Ordinance, No. 53 of 1946, s. 10 (1) (d).
A process server licensed as a Fiscal's Officer under section 4 of the
Fiscal's Ordinance is not the holder of a public office under the Crown within
the meaning of section 10 of the Local Authorities Elections Ordinance, No, 53
of 1946, and is, therefore, not disqualified to be elected as a member of a
local authority.
APPLICATION
for a writ of quo warranto challenging the right of the respondent to be elected
Chairman of the Village Committee, Sainthamaruthu, Karawaku South.
C. S. Barr Kumarakulasinghe, with A. I. Rajasingham, for petitioner.
S. Nadesan, with S. Mahadeva and M. A. M. Hussein, for respondent.
Cur. adv. vult.
February 9, 1950. WINDHAM J.-
The petitioner is a registered voter for Ward No. 7, Sainthamaruthu, Karawaku
South Village Committee. At the election to the Village Committee on June 11,
1949, the respondent was elected a member of the Committee for Ward No. 7. On
July 13, 1949, the respondent was elected Chairman of the Village Committee, and
since then has functioned as such.
I am satisfied upon the evidence
before me that prior to his nomination and election as member of the Committee
and during the period of election the respondent exercised the functions, and
that he still exercises the functions, of a Fiscal's Officer, a licence to act
as such having been issued to him with effect from February 1, 1942, by the
Fiscal, Eastern Province, who on January 28, 1942, had purported to appoint him
to that office by letter of appointment enclosing the licence. It would seem
that the letter of appointment and the licence were issued by the Fiscal in
exercise or purported exercise of his powers under section 4 of the Fiscal's
Ordinance (Cap. 8). Section 4 provides as follows: -
"4. For the service and execution of processes issued by the courts in this
Island the Fiscal shall license as many process servers for each district as
shall appear to him, to be necessary and the licences to be issued by him shall
be substantially in the form B to the Schedule. The Fiscal shall also have
authority to revoke any licence granted by
him whenever it shall appear to him necessary to do so:
Provided that it shall be lawful for the Fiscal or Deputy Fiscal to appoint, by
writing under his hand, any person to execute process in any particular case".
Now, section 4 does not empower the Fiscal to " appoint " anybody as Fiscal's
Officer or as process server, or to office of any kind ; nor does the section
specifically empower the Fiscal to license any person as "Fiscal's Officer", but
only to license persons as process servers. I am satisfied however, upon the
evidence of the Additional Deputy Fiscal who testified before me, and after
hearing learned counsel, that, while the respondent was licensed under the
designation "Fiscal's Officer",, his functions as such would fall within those
of a process server, namely, to execute writs, and if necessary to seize and
sell in execution property of under Rs. 1,000 in value; and that accordingly the
powers of the Fiscal under the first part of section 4 of the Ordinance included
the power to license him as a " Fiscal's Officer ", though not the power to
appoint him as such.
It is the petitioner's contention that the respondent held the office of "
Fiscal's Officer " or " Fiscal's Writ Officer " (the two terms appear in
practice to be synonymous) and that this office is a " public office under the
Crown in Ceylon ", and that accordingly the respondent was not qualified to be
elected to the Village
