Pelpola v. Goonesinghe.
Present: Poyser S.P.J.
PELPOLA v. GOONESINGHE.
500—M. C. Colombo, No. 3.
Colombo Municipal Council (Constitution) Ordinance, No. 14 of 1938—Qualifi-cation of voter—Residence in toord—Interpretation Ordinance, s. 5 (3).
The appellant, a voter whose name was on the list of voters for theColpetty Ward of the Colombo Municipality, was resident in that wardand later moved to a house in the Cinnamon Gardens Ward. Objectionwas tnkpn to his name being on the list for the Colpetty Ward on theground that he was not resident there. It was claimed on his behalfthat m view of the amending Municipal Council (Constitution) Ordinance,No. 14 of 1938, he was entitled to have his'name inserted in ColpettyWard by virtue of his income qualification alone, apart from his residence.
Held, that a person claiming to be registered as a voter under section14(2) of the Municipal Council (Constitution) Ordinance must be registeredas a voter for the ward in which he resides (except the owners of quali-fying property who are not resident within the Municipality).
The words “ action, proceeding, or thing pending ” in section 5 (3) (c)of the Interpretation Ordinance must mean something in the nature ofproceedings, which are of a judicial or quasi-judicial nature.
A notification by the Municipal Commissioner in terms of section 21(1) (e) of the Municipal Council (Constitution) Ordinance intimating thecommencement of the revision of the voters’ list on a particular day isnot an “ action, proceeding, or thing ” within the meaning of section 5 (3)of the Interpretation Ordinance.
Held, further, the Supreme Court has power to order the transfer of aname from one list to another under section 25 of the Ordinance onlywhere there is a claim for transfer.
HIS was an application by the respondent to expunge the appellant’sname from the list of voters for the Colpetty Ward in the Colombo
Municipality on the following grounds : (1) that he was not resident inthe ward on May 1, 1938 ; (2) that he was not the tenant of qualifyingproperty situated within the ward.
The Municipal Magistrate on a reference by the Commissioner directedthat the appellant’s name be expunged from the list of voters for ColpettyWard.
Hayley, K.-C. (with him C. V. Ranawake, D. D. Athulathmudali, andV. F. Gooneraine), for appellant.—Change of residence from one ward toanother does not disqualify a voter so long as his name appears in the listof voters—section 14 refers to a “ list ” and not “ lists ”, and thereforecontemplates one list of all the voters.
The law applicable for the determination of the question is the law asamended by Ordinance No. 14 of 1938, which came into operation beforethe revision of voters’ lists started on May 1, 1938. This is the datespecially provided for in section 21 (1) (b).
The learned Magistrate was wrong in holding that the law which appliedwas the Ordinance as it stood before the amendment of 1938 inasmuchas there had been a notice intimating the commencement of the revisionof voters’ lists which notice was published before the amending Ordinancecame into force.
POYSER S.P.J.-—Pelpola v. Goonesinghe.
The revision of voters’ lists is not an “ action, proceeding, or thing ”within the meaning of section 5 (3) of the Interpretation Ordinance.Counsel referred to Stroud and Hood-Barrs v. Cathcart *.
If the law as amended applies then the appellant has the right to havehis name on the list of voters by reason alone of the income qualificationof Rs. 15 a month. See section 3 (1) (b) (3). The question of residenceis immaterial.
In any event under section 25 of the Ordinance the Supreme Court canupon the ascertained facts direct the transfer of the appellant’s name tothe appropriate list.
H. V. Perera, K.C. (with him J. E. M. Obeyesekere and M. M. I.Kariapper), for respondent.—The amending Ordinance cannot apply assection 5 (3) of the Interpretation Ordinance suspends its operation. TheOrdinance .provides for a notice which sets in motion the work of revisionof voters’ lists and from that time the matter must be deemed to bepending. Our Ordinance is wider in its application than the EnglishStatute dealt with in Hood-Barrs v. Cathcart (supra). Even if the amendingOrdinance applies still under section 14 (6) it is necessary for the appellantto have his name entered in the list prepared for the ward in which he isresident, for the Ordinance contemplates a separate list for each ward.(Naha Kannu v. Lebbe Marikar ) The new law has not repealed thissection. Under section 25 the Supreme Court can direct the transfer tothe appropriate ward of the name of only a claimant. The appellant isnot a claimant.Cur. adv. vult.
October 7, 1938. Poyser S.P.J.—
The respondent, a registered voter in the Colpetty Ward of the ColomboMunicipality, objected to the appellant being included in the list of votersfor the said ward on the following grounds : (a) that he was not residentat 324, Colpetty road ;(b) that he was not the tenant of qualifying
property situated within the said ward ;(c) that he was not resident in
Colpetty Ward on May 1, 1938. The Commissioner referred this objectionto the Municipal Magistrate and. the latter .held that the objection wassound and entitled to succeed and directed that the appellant’s name beexpunged from the list of voters for Colpetty Ward. It is against thatorder that this appeal is lodged.
The following are the facts : The appellant, on May 22, 1936, appliedfor registration as a voter (O 1) by virtue of his tenancy of “ Shanklin ”,Colpetty, house No. 324. He was duly registered as a voter and hasremained so registered up to the date of the Magistrate’s order. At theend of June, 1936, the appellant left “ Shanklin ”, Colpetty, and went toreside at “ Fern Lodge ”, Rosmead Place, which is in the CinnamonGardens Ward. The appellant did not, prior to May 31, 1938, apply tohave his name transferred to another list in accordance with the provisionsof section 21 (1) (f) of the Colombo Municipal Council (Constitution)Ordinance, No. 60 of 1935. He did on July 2 of this year make an appli-cation for the alteration of his address, but such application was refusedby the Commissioner on the ground that it was out of time. Whetherthe Commissioner was correct in his decision ©r not did not arise on thisappeal but was the subject of another application to this Court, namely,
' (J8.«W) 03 L. J. Ch. 793.= 7 C. L. W. 71.
POYSER S.PJ.—Pelpola v. Goonesinghe.
Application by A. E. Goonesinghe for a Writ of Mandamus on the MunicipalCommissioner, Colombo. Such application has been granted by■de Kretser J. and under these circumstances, it would be unnecessary todeal with all the points that have been raised, but for the fact that similarpoints arose in another appeal, and it was agreed that such appeal shouldhe determined in accordance with my finding in this appeal.
At the hearing of the objection the appellant, while admitting that heno longer resided in Colpetty Ward, contended that he was entitled to beregistered as a voter in such ward, not by virtue of residence therein, butby virtue of the amendment to section 14 of the principal Ordinanceeffected by Ordinance No. 14 of 1938, which came into force on April 12,1938. The amendment which he relied on is contained in section 3 (1) (6)
and the effect is that a person possessing an income of not less thanRs. 15 a month is entitled to be registered as a voter. It is admittedthat the appellant had an income of over Rs. 15 a month, but the Magis-trate rejected this contention on the ground that the publication of thenotice (O 6) on April 8, 1938, in accordance with the terms of section 21
(e) of the Ordinance was a step in the matter of the revision of the lists,that such revision was pending at the date when the amending Ordinancecame into force and that in view of the provisions of section 5 (3) of theInterpretation Ordinance only the provisions of the principal Ordinancecould be considered in dealing with this objection.
The material part of section 5 (3) is as follows : ■—“ Whenever anywritten law repeals either in whole or part a former written laiw, suchrepeal shall not, in the absence of any express provision to that effect,affect or be deemed to have affected : —
… . r
Any action, proceeding, or thing' pending or incompleted when therepealing written law comes into operation, but every such action,proceeding, or thing may be carried on and completed as if there had beenno such repeal ”.
In view of this finding and as it was admitted that the appellant hadno residential qualification, the Magistrate upheld the objection.
On appeal Mr. Hayley argued as follows: (1) that the Magistratewas wrong in holding that the amending Ordinance was inapplicable tothe case as the notice (O 6) was not an “action, proceeding, or thingpending ” ; (2) that as the appellant had an income qualification, hisname should have remained on the Colpetty Ward list and his place ofresidence was immaterial; (3) in the alternative, that the Magistrateshould, on ascertaining the facts, have transferred his name to theCinnamon Gardens list; (4) that the Supreme Court under the provisionsof section 25 of the Ordinance should direct such a transfer.
I am in agreement with Mr. Hayley’s argument on the first point as Ido not consider the notice (O 6) is an “ action, proceeding, or thingpending ” when Ordinance No. 14 of 1938 came into operation. Thewords “ action, proceeding, or thing pending ” must mean something inthe nature of proceedings which are of a judicial or a quasi-judicial nature.
124POYSER S.P.J.—Pelpola v. Goonesinghe.
The notice in question was only a notification that the revision of the listsof persons qualified to vote and to be elected as Councillors wouldcommence on May 1', 1938. The action, proceeding, or thing that we arenow dealing with was the objection lodged by the respondent on July 1,1938. I think it is unnecessary to deal with all the arguments that wereadduced on this point for I have come to the conclusion that the appel-lant’s name should be erased from the list of voters for Colpetty Ward,whether the amendments effected by Ordinance No. 14 of 1938 are takeninto account or not.
It is interesting, however, to note that my brother, de Kretser, inApplication by A. E. Goonesinghe for a Writ of Mandamus on the MunicipalCommissioner, Colombo, came to a similar conclusion on this point. I willtherefore decide this appeal as if the provisions of Ordinance No. 14 of1938 applied.
To deal with the other points that Mr. Hayley raised, the amendmentto section 14 (2) of the Ordinance providing for an income qualificationdoes not specifically lay down anything in‘regard to residence. Section14 (6) of the principal Ordinance, however, is as follows :—“ Thename ofany person who in any year is qualified to vote under the provisions of thisOrdinance shall be entered in the new or revised list of persons qualifiedto vote prepared for the ward in which that person is resident on the dateof the preparation or revision, as the case may be, of such list for thatyear ”. The amendment to- this sub-section effected by the amendingOrdinance does not in any way modify these clear directions. I thinktherefore that a person who is entitled to be -registered as a voter by virtueof his income qualification must be entered in the list prepared for theward in which he is resident. In the case of Mahakannu Meeranpillai v.Asby Lebbe Marikar', the Chief Justice held that the person who canobject that a voter is disqualified must be a j/oter in the same ward.
I respectfully agree with that finding, and a fortiori, a person claimingto be registered as a voter under the provisions of section 14 of the Ordi-nance (except the owners of qualifying property who are not resident inthe Municipality, section 14 (2) (g) (iv) ) must be registered as a voter forthe ward in which he resides.
In regard to the other points raised by Mr. Hayley, I do not considerthat this Court can under section 25 of the Ordinance direct the transferof the appellant’s name to the list for the Cinnamon Gardens Ward.Section 25 only gives the Court power to make such an order where thereis a claim for a transfer. ^
In this matter there was no such claim. I do not either think theMagistrate had the power to effect such a transfer under section 21 (1) (i)..The matter before him was the respondent’s objection not the preparationor revision of lists.
The appeal will accordingly be dismissed. The respondent is entitledto the costs of the inquiry and of the appeal.
1 7 Cey. Law Weekly 71.
PELPOLA v. GOONESINGHE