DRIEBERG J.—Fonseka v. Government Agent, Central Province.
1931Present: Drieberg J.FONSEKA v. GOVERNMENT AGENT, CENTRAL PROVINCE.
In the Matter of an Application for a Writ of Mandamuson the Chairman, Local Board, Hatton.
Local Board—Disqualification for membership—Holder of office of emolument
and election—Local Boards of Health and Improvement Ordinance,No. 18 of 1898, ss-.~ 6 find 8.
A person who holds an office of emolument under Government is not•entitled to have his name inserted in the lists of persons eligible forelection to Local Boards of Health and Improvement prepared undersection 8 (1) of the Ordinance.
An inquirer into sudden deaths holds an office of emolument underthe Government within the meaning of section. 6 of the Ordinance.
HIS was an application for a writ of mandamus on the Chairmanof Local Board, Hatton and Dikoya.
N. E. Weerasooria, for the applicant.
December 8, 1931. Drieberg J.—
This is an application by. the petitioner for a writ of mandamus onthe Chairman of the Local Board, Dickoya-Hatton, directing him toinclude the name of the petitioner in the list of persons qualified to beelected as unofficial members of the said Local Board prepared underthe provisions of section 8 (5) of the Local Boards Ordinance, No. 13 of1898.
The Ordinance provides for the preparation of lists of personsqualified to be elected and of persons qualified to vote three monthsbefore the date of a genetfkl election; provision is made for the hearingof claims for the insertion of names and for objections to names and therevised list has to be certified by the Chairman. The list so certifiedremains in force for the purposes of that election and any bye-election-
DRIEBEHG J.—Fonseka v. Government Agent, Central Province.
and until new lists are prepared for the next general election. Sub-section (6) of section 8 enacts that a person whose name does not appearin the certified list shall not be entitled to be elected or to vote, as theca6e may be. Section 9 provides for publication of notice of an electionand section 10 (2) provides that no one shall be entitled to be a candidatefor election unless nominated in writing and the nomination paper hasto be delivered at the office of the Local Board ten days before the meetingfor the election.
Section 6 of the Ordinance states that “ Every male inhabitant of anytown brought under the operation of this Ordinance, of the age of twenty-one years and upwards, who is possessed of immovable property situatetherein of the value of not less than one thousand rupees, and who doesnot hold any office of emolument under Government, and who has notbeen convicted of any infamous crime, shall be eligible ns an unofficialmember of the Board for such town ”.
The petitioner holds the office of inquirer into sudden deaths for theAmbegamuwa korale. He was appointed by the Governor and receivesfees for inquiries held by him. There is no evidence of this, butMr. Weerasooria concedes that this is so. The petitioner thereforeholds an office of emolument under -Government. The petitioner inhis affidavit of October 17 states that September 16 was the date appointedfor the Government Agent to hear all claims and objections regardingthe list; he claimed that his name should be inserted as a person qualifiedto be elected but that the Government Agent did not then decide hisclaim; section 8 (2) states that claims should be decided in a summarymanner and that the decision should be final and conclusive.
I have been embarrassed in the decision of this matter by there beingno counter-affidavit by the Chairman and by his not being representedat the hearing.
The petitioner says that the revised and certified list has not yetbeen exhibited at the office of the Local Board and it is contended forhim that the list has -not been certified. No copy has been producedof the decision of the Chairman on the petitioner’s claim to have hisname inserted in the list.
Mr. Weerasooria has given me from his brief the only material onwhich I can act. It is a copy certified by the Assistant GovernmentAgent of certain proceedings the date of which does not appear on it,but I understand that these were the proceedings when the nominationpaper of the petitioner was submitted. The presiding officer notedthat the petitioner’s name was not on the list as required by section 8 (6),and further that he was not a person entitled to be elected. He noted .that, as he was informed that notice had issued on this application,he would file the petitioner’s nomination paper and that if this courtdid not direct the insertion of the petitioner’s name on the list beforeDecember 16, the day of the election, the petitioner’s name would notbe accepted as that of a candidate for election.
If the Government Agent had decided on the petitioner’s claim asrequired by section 8 (2) and if the list revised thereafter had been dulycertified, the decision of the Government Agent being final and con-
12IH.A 99910 (8 (50)
DRIEBERG- J.—Abeytcardene v. Wijeysekere.
elusive, the petitioner's name being omitted from the list would renderhi™ not eligible for election. But Mr. Weerasooria contends thathis ineligibility is only for election and that the omission of his namefrom the list for the reason of his holding an office of emolument underGovernment does not bar him from being nominated for election. Hecontends that the list made under section 8 (1) is a list of persons qualified.,that not holding an office of emolument under Government is not a qualifi-cation, but rather that the holding of such office is a disqualificationwhich a candidate can free himself of at any time before election. Icannot accept this distinction which he seeks to draw between a quali-fication and a disqualification, and further it is clear that a candidateshould conform to the requirements of section 6 before the lists arecertified, for no person not on the list is entitled to be elected. Norcan I accept the distinction which is sought to be drawn between eligi-bility for nomination and eligibility for election, for nomination is butone stage in the course of election.
I therefore hold that if the list was duly certified the omission <xf thename of the petitioner renders him not eligible for election and con-sequently not eligible for nomination.
If the petitioner is not concluded by the omission of his name fromthe list by reason of its not being certified, as suggested by Kim, I holdthat he is not entitled to have his name inserted in it for the reasonthat he is the holder of an office of emolument under Government. Isay this for the reason that there has been no counter-affidavit denyingthe averments in the petition and because the respondent has not claimedthat the decision on the petitioner's claim was final and conclusive andhas not in the proceedings* I have referred to the possibility of thisCourt directing the insertion of the petitioner's name in the list.
„ The application is dismissed.
FONSEKA v. GOVERNMENT AGENT, CENTRAL PROVINCE