Heralh Banda v. Dissanayake
1961Present: T. S. Fernando, J.
M. HERATH BANDA, Applicant, and P. S. DISSANAYAKE,
S. C. 365 of 1961—Application for a mandate in the nature of a Writof Quo Warranto on Punchirallegedera Suddahamy Dissanayake,functioning in the office of Chairman, Village Committee of A mbanpola
Local Authorities Elections Ordinance No. 53 of 1946, as amended by Act No. 25 of1953—Section 9—“ Residence ”—Meaning of expression “ on the dale ofthe preparation or revision of the parliamentary register for the time being inoperation ”—Ceylon (Parliamentary Elections) Order in Council, 1946, ss. 4,16,22(2)—Quo warranto.
The respondent, who was a toaelior in a Government school at Ambanpolain tho electoral district of Yapahuwa, was residing at Ambanpola till tho year1952. As a result of his being transferred to a school at Gothatuwa in thoelectoral district of Kolonnawa he took up residence at Gothatuwa and residedthere until he retired in January 1960 from service under Government. Itwas not until 1st July 1960 that he took up residence again in his native village
1 (1959) GO N. L. R. 39S, at 401.
T. S. FERNANDO, J.—HcrcUh Banda v. Dissanayake
of Ambanpola. His name, however, and that of his wife appeared not only onthe register of electors of the Kolonnawa electoral district certified on December16, 1960, but also on the electoral list for a ward in which ho was rosidont whileho functioned as a teacher at the Gothatuwa school.
At an election held on Juno 15,1961, the respondent was elected as the memberfor Ambanpola ward of tho Ambanpola Village Committee.
Held, (i) that the fact that during the time he was teaching at Gothatuwaschool he made frequent visits to Ambanpola and took up periodic residencethere during tho school vacations did not entitle tho respondent to the benefitof section 4 (2) of the Ceylon (Parliamentary Elections) Order in Council, 1946,and to claim that he was resident also at Ambanpola prior to 1st July 1960so as to qualify him to be on tho electoral register for Yapahuwa. '>
(ii) that tho crucial date for determining qualification for membership interms of section 9 of the Local Authorities Elections Ordinance No. 53 of 1946,as amended by Act No. 25 of 1953, can be fixed only with reference to theregister that is in operation as defined by law and not with reference to thedate of the commencement of its revision, if such revision has commenced interms of section 16 of the Parliamentary Elections Order in Council but hasnot been completed.
Application for a writ of quo warranto on the Chairman, VillageCommittee of Ambanpola.
A. de Silva, for the applicant.
Izadeen Mohamed, with H. D. Tambiah, for the respondent.
Cur. adv. vult.
November 29, 1961. T. S. Fernando, J.—
This application involves an interpretation of section 9 of the LocalAuthorities Elections Ordinance, No. 53 of 1946, as amended by ActNo. 25 of 1953, a provision of law which is of practical interest to personsseeking election as members of a local authority. This section as inforce at present reads as follows :—
“Every person who is not disqualified as provided by section 10shall be qualified at any time for election as a member for any wardof an electoral area if—
he was, on the date of the commencement of the preparation
or revision of the parliamentary register for the time being inoperation for any electoral district in which that electoralarea or any part thereof is situated, qualified to have his nameentered in that register ; and
he was, on the date aforesaid, resident in that ward or any other
ward of the same electoral area ”.
T. S. .FERNANDO, J.—Herath Banda v. Dissanayake
The respondent and the petitioner were candidates for election as themember for Ambanpola ward (ward No. 9) of the Ambanpola VillageCommittee at an election held on June 15, 1961. The respondent waselected as the member for that ward by a majority of 24 votes and wasthereafter elected Chairman of the Village Committee at a meeting heldon July 20, 1961. It is not disputed that the respondent has sinceperformed duties as Chairman of the Village Committee.
The petitioner contends that at the time of his election as member forAmbanpola Ward the respondent was not qualified for election as requiredby section 9 aforesaid in that
(a) he was not, on the date of the commencement of the preparationof the Parliamentary register for the time being in operationfor the electoral district of Yapahuwa in which the electoralarea of Ambanpola is situated, qualified to have his nameentered on that register ; and
(&) he was not, on the date aforesaid, resident either in AmbanpolaWard or any other ward of the electoral area of the AmbanpolaVillage Committee.
Section 4 of the Ceylon (Parliamentary Elections) Order in Council, 1946,which enumerates some of the circumstances in which a person becomesdisqualified to have his name entered or retained in any register of electorsin any year enacts, inter alia, that a person shall be so disqualified if hehas not, for a continuous period of six months in the eighteen monthsimmediately prior to the first day of June in that year resided in theelectoral district to which the register relates.
In regard to the residence of the respondent, while it is not denied thatthe respondent had been resident in the Ambanpola Ward till the year1952, it is conceded that in 1952, as a result of the respondent who wasa teacher in a Government school being transferred as a teacher to aschool at Gothatuwa in the Colombo district, the respondent took upresidence along with his wife at Gothatuwa and resided there until heretired in January 1960 from service under Government. Gothatuwais situated in the electoral district of Kolonnawa. It was not until 1stJuly 1960 that the respondent again took up residence in his nativevillage of Ambanpola. The respondent has stated in his affidavit present-ed in this case that during the time he was teaching at Gothatuwa schoolhe made frequent visits to Ambanpola and took up periodic residencethere during the school vacations. Learned counsel who appeared forhim sought to obtain for him, in regard to the qualification to have hisname entered in the Parliamentary register for Yapahuwa, the benefit ofsection 4 (2) of the Ceylon (Parliamentary Elections) Order in Council,
1946, which is in the following terms :—
“ For the purposes of this Section, continuity of residence in anelectoral district shall not be deemed to be interrupted by reason onlyof absence in the performance of any duty accruing from or incidentalto any office, service or employment held or undertaken by any personotherwise qualified to have his name entered on any register.”
T. S. l'ERNANBO, J.—He rath Banda t;. Dissanayahe.
This sub-section can be of little avail to the respondent on the presentapplication as, unfortunately for him, not only do the names of his wifeand himself appear on the register of electors of the Kolonnawa electoraldistrict certified on December 15, 1960, but their names appear alsoon the electoral list for the ward (Ward No. 15) of Ambatalen PahalaVillage Committee, that being the ward in which they were residentwhile the respondent functioned as a teacher at the Gothatuwa school.In this state of the facts it is not open to the respondent to maintain thecontention that he was resident also at Ambanpola prior to 1st July 1960so as to qualify him to be on the electoral register for Yapahuwa.
Yapahuwa being one of the new electoral districts created followingupon the 1959 delimitation of Parliamentary electoral districts, | it. hasnot been disputed that the Parliamentary register in operation on June 151961 was the unrevised register which had been first prepared and certifiedfollowing upon the new delimitation of districts. The first revision couldhave commenced in terms of section 16 of the Parliamentary ElectionsOrder in Council only on 1st June 1961. It is also not disputed that ifthe date on which the qualifications required by section 9 had to existwas 1st June 1961 the respondent had the necessary qualifications.
The point requiring determination on this application therefore narrowsdown to the meaning of the expression “ on the date of the commence-ment or revision of the parliamentary register for the time being in opera-tion ” appearing in section 9 of the Act. If the date is in the present case1st June 1961 this application must fail, while if the date is the date ofcommencement of the preparation of the parliamentary,register in question(which it is agreed is some date anterior to January 31,1960) the applica-tion must succeed.
The parliamentary register that is contemplated in section 9 is theregister for the time being in operation. Section 22 (2) of the Parliaznen-.taiy Elections Order in Council declares that the certified register (i.e. theregister certified by the registering officer in terms of section 20 of theOrder in Council) shall come into operation on the date of publication inthe Government Gazette of the notice of certification. The register inoperation on 15th June 1961, as I have stated already, was the registerthat had been first certified and not the register the first revision of whichcommenced only on 1st June 1961. At the date of the AmbanpolaVillage Committee election on 15th June 1961 the Yapahuwa parlia-mentary register which had been first certified was still in the process ofrevision. Although at first I was inclined to the view that the date ofthe commencement of the revision (viz. 1st June 1961) was the datecontemplated, it became clear to me on reflection that the crucial datecan be fixed only with reference to the register that is in operation asdefined by law. I may add that, as pointed out by counsel, a person isrequired by section 9 to be qualified to have his name entered “ in thatregister ”, i.e. the register that is for the time being in operation. Theconclusion to which one is therefore compelled is that the respondent
Molunned Sahib v. Commissioner for Registration of307
Indian and Pakistani Residents
fco this application was required1 to have been qualified to have had hisname on the register on the date on which the register that was in opera-tion on June 15, 1961 commenced to be prepared or revised, as the casemay have been. That register being an unrevised register, the crucialdate is the date on which the preparation of that register commenced ;if it had been a revised register, then the crucial date would have beenthe date on which its revision commenced. The underlying intention ofthe legislature appears to be not to disqualify a person who was qualifiedto have his name included in the certified register although his name mayfor sonic reason or other have escaped inclusion.
The respondent was not in my opinion qualified on the date of thecommencement of the preparation of the parliamentary register forYapahuwa to have his name entered in that register. ]S[or was he onthat date resident within the Ambanpola Village Committee area. Forboth these reasons the rule nisi that has already issued has to be madeabsolute and the election of the respondent as member for Ambanpolaward (Ward No. 9) of the Ambanpola Village Committee has to bequashed. I make order accordingly.
The respondent will pay to the petitioner the taxed costs of thisapplication.
Rule made absolute.
G.M. HERATH BANDA, Applicant, and P.S. DISSANAYAKE, Respondent