DE SILVA v. DE SILVA

JurisdictionSri Lanka
Date05 August 1941
Type of DocumentNew Law Report
De Silva V. De Silva

531

1941 Present: Wijeyewardene J.

DE SILVA v. DE SILVA.

In re APPLICATION FOR A WRIT OF Quo WARRANTO.

Urban Council-Resignation of Chairman-Letter withdrawing resignation- Election of new Chairman-Proper quorum-Urban Councils Ordinance, No. 61 of 1939, ss. 255 (1) (d) and 248-Courts Ordinance, s. 42. Where the Chairman of an Urban Council wrote to the Secretary stating : " I have the honour to inform you that I shall resign from the office of the Chairman, Urban Council, as from February 1, 1941, and to request you to take the necessary steps for the election of a successor as early as possible ",-

Held, that the communication announced the resignation of the Chairman as from February 1, 1941, and that the office of Chairman became vacant on that day.

It was not open to the Chairman to withdraw the resignation even with the consent of the Council.

Held, further, that by the joint operation of sections 255 (1) (d) and 248 of Ordinance No. 61 of 1939 a by-law made under Ordinance No. 11 of 1920 fixing the quorum of an Urban District Council applies to an Urban Council constituted under Ordinance No. 61 of 1939.

THIS was an application for a writ of quo warranto to question the election of the respondent as Chairman of the Urban Council, Ambalangoda.

E. B. Wikremanayake (N. E. Weerasooria, K.C., with him and Barr Kumarakulasingham), for respondent, raised the preliminary objection that the writ of quo warranto did not lie.-Jurisdiction on the Supreme Court to issue mandates is conferred by section 42 of the Courts Ordinance. The Supreme Court can only exercise its jurisdiction within the limits prescribed by that statute-In the matter of the Election of a Member for the Local Board of Jaffna 1 A writ of quo warranto can only be issued to persons enumerated in section 42. The words " other person" must be read eiusdem generis, and mean a person under a duty to act judicially -Application for a writ of Prohibition to the Members of a Field General Court Martial 2; Dankotuwa Estates Co., Ltd. v. The Tea Controller3. The Chairman of an Urban Council is not a judicial officer.

H. V. Perera, K.C. (with him M. C. Abeyewardene and D. W. Fernando), for applicant.-Quo warranto lies in respect of an office of a public character even where no judicial functions are exercised. The writ lies on an usurpation of an office made by the Crown by charter or by statute. The word " person " must be interpreted with reference to the writ asked for. The only genus is that of persons exercising " public functions ".

H. H. Bosnayake, C.C., for A.-G. (on notice).-If the intention of the Legislature was not to narrow down the scope of these writs the eiusdem generis rule need not be applied (Clapham v. Oliver 4).

Foot Notes:

1 (1907) 1 A. C.R.128.

2 (1915) 18 N. L. R. 334.
3(1941) 42N.L.R. 197 at p. 207.


4 (1874) 30 L. T. R. 365.

532

E. B. Wikremanayake, in reply.-The Supreme Court has no inherent powers. The eiusdem generis rule must be applied to both the words " tribunal " and " person " or to neither.

The Court next heard Counsel on the merits of the application. H. V. Perera, K.C.-There must be such a resignation as renders the office vacant.

[WIJEYEWARDENE J.-To whom must resignation be given ?]
To the members. It is a bilateral act. A communication to the body is necessary or to the person authorised to act for the body, namely, the Vice-Chairman or Secretary. The only consequences contemplated by the Ordinance is the falling vacant of the seat. " I shall resign on a certain day" is not an immediate resignation. Till legal consequences come into operation the act of resignation is not effective. The only resignation contemplated by the Ordinance is an immediate resignation. Where a person declares an intention to resign on a certain day and does not revoke it there is an immediate resignation. An effective resignation must give rise to legal consequences. Till then it is not a legal act. The declaration is of no legal effect till the day and could be withdrawn before that day. The Queen v. The Mayor and Town Council of Wigan1. Where no legal consequences follow resignation may be withdrawn. In re Application for a writ of Quo Warranto2. Acceptance is necessary unless the statute dispenses with it. On the question of quorum, section 39 of the Ordinance states that in the absence of any by-law made under the Ordinance the quorum shall be not less than two-thirds of the members. The Council consists of twelve members, so that the quorum would be eight. At the election of the respondent only six members were present.

N. E. Weerasooria, K.C., for respondent.-Assuming the Chairman has a right to resign, then, if he does resign, section 33 (5) comes into operation. A Chairman is a person who holds office as a result of an election. There is no contractual relation. With regard to resignation there is no provision except the act of resigning. There is no provision even for a writing. The letter is not an intimation to resign. It was a definite resignation, nothing more was necessary. Reichel v. Bishop of Oxford3; Cooper v. Wilson4. The mere fact that a date is given is not a condition. Resignation is complete at the moment it is sent and takes effect on the date mentioned. The letter was treated by all parties as a " resignation" and not an intimation to resign. A formal declaration is sufficient. That was done. He cannot then revoke it. The legal consequence is that the office is automatically vacant, that is, from February 1. The resignation was absolute as a resignation-see Lord Lindley's judgment in the Bishop of Oxford's case (supra). As regards quorum, section 248 makes by-laws in force at passing of the Ordinance equivalent to by-laws passed under the Ordinance. These by-laws govern all meetings. The by-laws made under sections 164 and 168 (1) of the Local Government...

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