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PERERA A.G. v. AMERASINGHE
NLR54V477
1953 Present : Pulle J.
A. G. PERERA, Petitioner, and C. AMERASINGHE,
Respondent
S. C. 125-Application for a Writ of Quo Warranto on the Member for
Ward No. 6, Urban Council, Kolonnawa
Local Authorities Elections
Ordinance, No. 53 of 1946-Section 10 (1) (d)-" Holder of a public office under
the Crown "-Indigenous Medicine Ordinance, No. 17 of 1941, as amended by
Ordinance No. 27 of 1945 and Act No. 49 of 1949,
ss. 2, 6(1).
The respondent was an ayurvedic physician who was appointed by the Board of
Indigenous Medicine as a visiting specialist in boils and carbuncles for a
certain period in an honorary capacity. No salary was attached to the office,
but a monthly travelling allowance not exceeding Rs. 150 was paid depending on
the number of visits. The respondent was, according to the letter of
appointment, " expected " to visit the hospital of Indigenous Medicine three
times a week and to deliver a course of lectures to the students on these
visits.
Held, that the respondent was not a holder of a public office
under the Crown in Ceylon within the meaning of section 10 (1) (d) of the Local
Authorities Elections Ordinance. He was, therefore, not disqualified from being
a member of a local authority.
APPLICATION
for a writ of quo warranto on the Member
for Ward No. 6, Urban Council, Kolonnawa.
D. S. Jayawickreme, with Rienzie Wijeratne, for the petitioner.
A. L. Jayasuriya, with M. M. Kumarakulasingham and D. R. P.
Gunatileke, for the respondent.
Cur. adv. vult.
478
February 6, 1953. PULLE J.-
The respondent to this application was elected on the 30th November, 1950, as a
member for Ward No. 6 of the Kolonnawa Urban Council. The petitioner challenges
the election on the ground that on the material dates the respondent was the
holder of a public office under the Crown in Ceylon and that, therefore, by
virtue of section 10 (1) (d) of the Local Authorities Elections Ordinance, No.
53 of 1946, he was not qualified to be elected or to sit or vote as a member of
the Urban Council.
By a notification in the Government Gazette of 26th September, 1952, the Council
has been dissolved and in these circumstances the proper order I should make is
to dismiss the application. The respondent however, asks that the petitioner be
condemned in costs on the ground that the application disclosed no grounds for
intervention and that it was bound in any event to fail. It is, therefore,
necessary to examine the application on its merits.
The respondent is an ayurvedic physician who was appointed by the Board of
Indigenous Medicine as a visiting specialist, in an honorary capacity, in boils
and carbuncles for a period of one year commencing on 1st August, 1950, and the
appointment was extended for a further period of one year commencing on 1st
November, 1951. No salary was attached to the office but a monthly travelling
allowance not exceeding Rs. 150 was paid depending on the number of visits. The
respondent was according to the letter of appointment " expected " to visit the
hospital of Indigenous Medicine three times a week and to deliver a course of
lectures to the students on these visits.
The Board of Indigenous Medicine and the institutions administered by them are
governed by the Indigenous Medicine Ordinance, No. 17 of 1941, as amended by
Ordinance No. 27 of 1945 and Act No. 49 of 1949. By section 4 the members of the
Board are constituted a corporation and one of their statutory duties is to
provide courses of instruction in indigenous medicine to the students admitted
to the College. Learned Counsel for the petitioner has relied on section 2 under
which the College and the Hospital are maintained as Government institutions out
of funds provided for the purpose by Parliament and also on section 6 (1) which
as amended reads as follows :-
" Every appointment of an officer or servant of any description to the staff of
the College and of the Hospital and th
