POYSER S.P.J.—Fernando v. Grero.
1938Present: Poyser S.P.J.
FERNANDO v. GRERO.
554—M. C. Colombo, 1.
Residence—Place used as a sleeping apartment—Right to create residence foracquiring qualification—Municipal Council (Constitution) Ordinance,No. 60 of 1935, s. 2 (2) (a).
A place which a person uses as his sleeping apartment three or fourtimes a week may be deemed to be his residence within the meaning ofsection 2 (2) (a) of the Colombo Municipal Council (Constitution)Ordinance, No. 6D of 1935.
A person is entitled to constitute a place as his residence in order togive him a qualification as a voter.
PPEAL from an order of the Municipal Magistrate of Colombo.
H. V. Perera, K.C. (with him Shelton de Silva and H. A. Chandrasena),for the appellant.
N. E. Weerasooria, K.C. (with him J. E. M. Obeyesekere and M. M. I.Kariapper), for the objector, respondent.
Cur. adv. vult.
October 3, 1938. Poyser S.P.J.—
In this case-the objector-respondent objected to . the appellant beingincluded in the list of voters for the Modera Ward on the ground that hewas not resident on May 1, 1938, at No. 205, Modera street, or in- anyother qualifying property in the Modera Ward. Th'e facts are as follows:—The appellant's wife and family reside in Mayfield lane, Kotahena, which
POYSER S.P.J.—Fernando v. Grero.
is in another Ward. The appellant however has a dispensary at No. 205,Modera street, in winch locality his practice principally is and he has asleeping apartment at the dispensary and spends three or four nights aweek there. The Magistrate considered that the appellant’s residenceat No. 205, Modera street, was not bona fide. To use his own words, hesays, “ It was a colourable residence of three or four nights out of theweek for the mere purpose of gaining a qualification ”. I am unable toagree with the Magistrate. A person may have more than one residence.Many persons do. Under the Colombo Municipal Council (Constitution)Ordinance, No. 60 of 1935, section 2 (2) (a) “ a person shall be deemed toreside in, or to be a resident of, any place, if he has, and from time to timeuses, a sleeping apartment in any dwelling-house therein ”, I havealready in S. C. No. 573—M. C. Colombo, No. 2, expressed the opinion thata dwelling house means a house in which any person or persons dwell andthat the house need not be one that is used exclusively for residentialpurposes. The appellant, the Magistrate finds, used the sleeping apart-ment at No. 205, Modera street, three or four times a week, that is asmuch or more than he uses the sleeping apartment in his ' otherhouse.
In regard to the Magistrate’s opinion that the respondent’s residenceat No. 205, Modera street, is not bona fide but a colourable residence,I would refer to the case of Ether-ington v. Wilson'. In that case a persontook a house temporarily and became a parishioner with the object ofqualifying his son for admission to a certain school. Vice-ChancellorMalins held that the person in question was not a bona fide householderand parishioner and his qualification as such was colourable. It washeld on appeal, reversing this decision, that if the law enabled a man toqualify for any particular thing he was entitled to do so and that noCourt had the right to attach any condition or modification of such quali-fication, and if it was intended to put any restriction upon suchqualification, that restriction must be put by special enactment or byother special provision. James L.J. in the course of his judgment pointedout that a man constantly acquired qualifications for voting. Heinstanced the case of d'man who buys a 40s. freehold for the sole purpose—the undisguised purpose—of giving himself a vote in a county with whichhe has not and does not mean to have any other connection whatever.Another passage in this judgment which is material in this case is asEollows : —“ A man has a right to give himself, if he can, a qualification.If he does so, then he is qualified, and there is no equity to deprive a manof that qualification which the law entitled him to get”. In regard tothe use of the word “ colourable ”, this word was used by Vice-ChancellorMalins in his judgment and James L.J. considered that the fallacy ofthat judgment arose from the use of. that word. He pointed out that ifa man never did take a house but only got some person to put up his nameover the door or something of that kind, then his occupation would havebeen colourable as it*would have been a sham. In this case I think thereis a simliar fallacy in the Magistrate’s order. The appellant only didwhat the law permits him to do. If for any purpose he wishes to bequalified as a voter in any particular ward, he is entitled to obtain such
* (1875) 1 Ch. Dio. 160.
Mutlucarpen Chettiar v. Velupillai.
qualification and it is immaterial for what purpose he does so. I thereforeconsider the Magistrate was wrong in upholding the objection to theresidential qualification of the appellant.
On appeal a further point' was raised that the appellant was not atenant within the meaning of section 14 (3) of the Ordinance. The pointappears to have been raised before the Magistrate but the latter in hisorder has not dealt with such point. The grounds in support of thisother objection are that there was evidence that the appellant was not atenant but a sub-tenant. The appellant in his evidence before theMagistrate stated that the landlord of the Modera street house wasMr. K. S. Fernando. The objector in his evidence stated that the latterperson had transferred this property to a certain Dr. de Silva andDr. de Silva had leased the same premises to Mr. K. S. Fernando fromNovember 1, 1937. However that may be, I do not think that on appealone can go into a question of the ownership of any qualifying propertywhen such question has not been adjudicated on by the Magistrate. Inthe absence of such adjudication it must be assumed that the appellantpaid the rent of the premises in question to the owner.
I would further add that in this case, as in S. C. No. 573—M. C. Colombo,No. 2, the Magistrate held that Ordinance No. 14 of 1938, which amendedthe Colombo Municipal Council (Constitution) Ordinance, No. 60 of 1935,was not applicable as the proceedings were initiated before such amendingOrdinance came into force. If the provisions of the amending Ordinancewere applicable, it is conceded that on the latter point there would be nogrounds for upholding the objection. As I think that the appellant isentitled to be registered as a voter for this ward under the principalOrdinance, it is unnecessary to consider whether the Magistrate’s viewwas correct or otherwise.
1 allow the appeal and set aside the order of the Magistrate deletingthe appellant’s name from the list of voters for Modera Ward.. Theobjector-respondent will pay the appellant the costs of the inquiry andof the appeal.
FERNANDO v. GRERO