Dharmaratne V. Commissioner Of Elections

1950 Present: Swan J.

DHARMARATNE, Petitioner, and COMMISSIONER OF ELECTIONS

et al., Respondents

S. C. 305-Application for a Writ of Mandamus on the Commissioner

of Elections (Local Bodies)

Mandamus-Quo warranto-Election of village committee member-Disqualification- Proper remedy-Necessary parties-Local Authorities Elections Ordinance, No. 53 of 1946, ss. 27 (5), 28, 33.

The fact of the disqualification of a village committee member to hold office may be urged in an application for a writ of quo warranto although it was not urged before the Government Agent at the time of nomination.

Where a person has been irregularly elected as a member of a local body but has not yet assumed office the proper remedy to have his election set aside is by way of mandamus and not quo warranto.

In an application for a prerogative writ to have an election held under the Local Authorities Elections Ordinance set aside, both the successful candidate and the returning officer under whose responsibility the election was held should be made parties respondent.

THIS was an application for a writ of mandamus on the Commissioner of Elections (Local Bodies) to require him to take steps to have a new election for a ward of the Bentota Village Committee.

Frederick W. Obeyesekere, for the petitioner.

 M. Tiruchelvam, Crown Counsel, for the 1st respondent.

 C. S. Barr Kumarakulasinghe, for the 2nd respondent.

Cur adv. vult.

June 6, .1950. SWAN J.-

This is an application for a writ of mandamus on the Commissioner of Elections (Local Bodies) " to require him to take steps to have a new election for Ward No. 4 of the Bentota Village Committee for the election of a competent person as a member thereof in lieu of an incompetent member for the said Ward No. 4."

The elections were held on 1st June, 1949, but as the new members were not to function till 6th July, 1949, the application which was filed on 30th June, 1949, asked for a writ of mandamus on the Commissioner. The " incompetent member " whose election was challenged was made the 2nd respondent to the application.

The petitioner alleged in the petition and affidavit filed by him that as the 2nd respondent was an unknown man it was not possible, within the short time allowed to lodge objections to nominations, to object to his nomination at the appropriate time. Subsequently, on a scrutiny of the electoral list, it was discovered that the name of the 2nd respondent did not appear therein. The 2nd respondent, therefore, was disqualified and ineligible to serve as a member of the Bentota Village Committee.

In James v. Fernando 1[ (1946) 48 N. L. R. 40.] Nagalingam A.J. following the view taken by Maartensz A.J. in Karunaratne v. Government Agent, W. P.2[ (1930) 32 N. L. R. 169.], and by Wijeyewardene J. in Mendis Appu v. Hendrick Singho 3[(1945) 46 N. L. R. 126.], held that a writ of quo warranto lay to set aside the election of the respondent although the fact of his disqualification had not been urged before the Government Agent at the time of nomination.

One of the objections taken by the 2nd respondent was that the petitioner was not a voter and therefore had no right to make this application. The petitioner filed a counter affidavit in which he stated that he was known as Tantrige Sediris alias Pediris Dharmaratne and that his name appeared in the electoral list as Tantrige Pediris Dharmaratne and that there was no other person in the village known as Tantrige Pediris Dharmaratne. This was supported by a certificate from the Village Headman.
The other objections taken in the statement filed by the 2nd respondent and pressed by Counsel appearing for him at the hearing of this matter were:

(1) that the application was misconceived in law, and

(2) that the 2nd respondent had been wrongly added as a party to the application.

As the application was made before the elected members assumed office I would h

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