Fonseka, H.F.C. V. Sellathurai, S.

1951 Present : Nagalingam S.P.J.

H. F. C. FONSEKA, Petitioner, and S. SELLATHURAI, Respondent

S. C. 111-Application for a Writ of Quo Warranto on the Member
for Ward No. 7, Hatton-Dickoya Urban Council

Quo warranto-Public office-Appointment thereto-Should appointee communicate his acceptance ?-" Hold office "-Rent Restriction Act, No. 29 of 1948, s. 19 (6)-Local Authorities Elections Ordinance, No. 53 of 1946, s. 10 (1) (d).

Where the right of a member of an urban council to sit and vote at meetings of the council was challenged on the ground that at the date of his election he was a member of a Rent Control Board and, therefore, being a holder of a public office under the Crown within the meaning of section 10 (1) (d) of the Local Authorities Elections Ordinance, was disqualified from being elected-

Held, (i) that where a person receives an appointment to an office which he is willing to accept, it is not essential to the validity of it that the appointee. should communicate his acceptance to the appointing authority. If his assent can be implied or inferred from attendant circumstances and particularly from his conduct, the appointment then becomes effective.

(ii) that once the respondent was appointed to, and was willing to accept, the office of Member of the Rent Control Board he automatically became the holder of the office, subject to the contingencies set out in section 19 (6) of the Rent Restriction Act; the circumstance that he neither actually functioned as such member nor received remuneration was immaterial.

APPLICATION for a writ of quo warranto on the member for ward No. 7, Hatton-Dickoya Urban Council.

N. E. Weerasooria, K.C., with W. D. Gunasekera, for the petitioner.

H. V. Perera, K.C., with H. W. Tambiah, M. M. Kumarakulasingham and G. C. Niles, for the respondent.

Cur. adv. vult.

November 9, 1951. NAGALINGAM S.P.J.-

A Writ of Quo Warranto was directed to the respondent calling upon him to shew by what authority he sits and votes at meetings of the Hatton-Dickoya Urban Council. The information to Court was presented by the petitioner on the footing that the election of the respondent was void for the reason that the respondent was personally disqualified from being elected as he was the " holder of a public office under the Crown " in Ceylon within the meaning of that phrase in section 10 (1) (d) of the Local Authorities Elections Ordinance 53 of 1946.

The facts are not in dispute. By letter P1 of 31st March, 1950, the Permanent Secretary to the Minister of Health and Local Government informed the respondent that the Minister

" has in terms of section 19 (2) of the Rent Restriction Act No. 29 of 1948 appointed you to fill an existing vacancy in the panel of 5 persons serving on the Rent Control Board for the area comprised within the administrative limits of the Hatton-Dickoya Urban Council."

The respondent has affirmed, and his statement has not been challenged, that he was at no time prior to letter P1 being sent to him consulted regarding his willingness to serve on the Rent Control Board, and he further affirms that at no time did he apply to anyone for the office nor intimate to anyone that he would be willing to accept such an office. On the other hand the fact remains that on or after the receipt of the letter P1 the respondent did not notify the Permanent Secretary or any other person in authority that he was unwilling to accept office.

It is in evidence that the full complement of members constituting the Rent Control Board for the Hatton-Dickoya Urban Council area had been appointed prior to 23rd March, 1950 (Vide P2) but that two of the members, namely, Samaraweera and Banks, had tendered their resignations, and to fill the resulting vacancies the respondent and one Mr. Wijeratne were appointed on 31st March, 1950. Although the Board had been constituted and been in existence for some time, the Boa

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