131-NLR-NLR-V-45-DE-COSTA-v.-ASSISTANT-GOVERNMENT-AGENT-COLOMBO.pdf
476
HEARNE J.—de Costa v. Assistant Government Agent, Colombo.
1944Present: Heame j.
DE COSTA v. ASSISTANT GOVERNMENT AGENT, COLOMBO
In the Matter of an Application for a Writ ofMandamus or Certiorari No. 306.
UrbanCouncil—Candidateforelection—Qualificationsofcandidate—Absence
of name from list of candidates—Urban Councils Ordinance, No. 61 of1938, ss. 8, 9, 11 (1).<
No objection can be taken to the nomination of a candidate forelection to an Urban Council on the ground that his name does notappear on the list,which is prepared undersection9, ofpersons who are
qualified to be candidates.
Section 11(1)merelyenacts that hemusthavethequalifications
mentioned in section 8.
Where objectionis takento a Candidatewhosenamedoesnot appear
on the list, it isfor theReturning Officerto decide whetherhe has the
qualifications.
T
HIS was an application for a writ of mandamus or in the alternativefor a writ of certiorari.
H. W. Jayawardene, in support.
T.S. Fernando, G.G., for respondent.
Cut. adv. vult.
July 17, 1944. Hearns J.—
Objection was taken to the nomination of the petitioner, a candidatefor election for the Dehiwala-M.t. Lavinia U. C:, on the ground that hisname did not appear in the list, prepared under section 9 of the relevantOrdinance, of persons who possessed the qualifications referred to insection 8. The Returning Officer, the respondent to this petition, up-held the objection and rejected the petitioner’s nomination paper.
It is clear from the provisions of section 11 (3) of the Ordinance thatobjection may be .taken to the nomination of a candidate on certain speci-fied grounds and that the absence of a candidate’s name from the list ofpersons who have the qualifications referred to in section 8, is not oneof those grounds. If a candidate who has those qualifications has dulydelivered a nomination paper that, is in order and has made the deposithe is required to make in the maimer and within the time prescribed,the Returning Officer would Rave no power to reject his nomination paper.No person is qualified to vote unless his name appears in the list preparedof persons possessing the qualifications referred to in section 7. (Thepetitioner’s name appears in that list.) But the Ordinance does not laydown that no person may be a candidate unless his name appears in thelist prepared under section 9 of those who have .the qualifications referredto in section 8. On the contrary section 11 (1) merely enacts that hemust have these qualifications.
Chand7asckere and Assistant Government Agent.
477
Section 9 (7) requires to be considered. It is as follows:—“ Tlie listscertified under sub-section (6) shall be final and conclusive and be thesole evidence of the due qualification of each of the 'persons whose names:are included' therein to vote or to be a candidate for election at the generalelection referred to in sub-section (1) or at any bye-election that may benecessary for the purpose of filling any casual vacancy in the Council atany time before the preparation and certification of new lists for thepurposes of the next succeeding general election
With reference to the list prepared of persons who possess the quali-fications referred to in section 8 it means, in my opinion, no more thanthis. If the name of a person appears in that list it is final and con-clusive of the fact that he has the. qualifications referred to in section 8.
t is £he sole evidence of the due qualification of. a person whose name-appears in that list. But “the section does not mean that a person whosename is not in the list has not, or is deemed not to have, the qualificationsthat are referred to in section 8. That is a question the ReturningOfficer must decide, on an objection being taken, in the case ofcandidates whose names do not appear in the list.
It is admitted that objection could not have been taken on any otherground. This is another way of saying that the petitioner was in everyway legally qualified to be a candidate. The respondent will, therefore,be ordered and required to accept the petitioner’s nomination paper anddeclare him to be a candidate for election.
Rule made absolute.