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February 12.Present : Mr. Justice Wendt.
In the matter of a Mandamus on the Chairman op theMunicipal Council, Galle.
Municipalelection—Mandamus—Refusalto acceptnomination of a duly
qualifiedcandidate—Conclusive nature ■ of certified lift—Default in
payment oftaxes—Disqualification.—MunicipalCouncils’ Ordi-
. nance (No. 7 of 1887). ss. 9 (e), 13-19, 22, 40-43, 128, 145, and146.
Held, by Wendt, J.—
'(1) That if the officer presiding at an election refuses to acceptthe nomination of a duly qualified candidate, so that thevoterspresentare precludedfromrecording theirvotes
in his favour, the election of any other candidate isnecessarily void.
(2) That section 43 of Ordinance No. 7 of 1887, which enactsthat “ the new list so prepared as aforesaid, subject tosuch insertions and erasures as shall have been orderedand made therein as aforesaid, shall be certified under thehand of the chairman during thelast week of October
following, andwhen so certifiedshallbe final and con-clusiveevidenceof the qualificationof the personsnamed
thereinto beelected or tovot6respectively. Andsuch
new lists, until the same are in- turn ‘'superseded, shallsupersede and take theplace ofthe lists previously in
force," is conclusive of the qualifications of – the personsmentioned in the lists,and thatno objection to such
qualification could thereafter be entertained.
<3) That the saidsection, whileit makes the list conclusive
evidence in favour of persons named in it, does not renderthat list the sole evidence of qualification. 1
(1) (1905) 8 N. L. R. 325.
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<i) That section22of Ordinance No. 7 of1887,which enacts
that “if at any such election any question shall arise asto the identity or right of any person claiming to bequalified to be elected or to vote, the president shall havepowerto inquire into thesame,and, if itappears expe-dienttohim, to administer an oathoraffirmation to
any person present at each meeting whom he shall thinkfit to examine with reference to such claim. Any personsgiving false evidence' on oath or affirmation at such inquiryshallbeliable to be prosecuted undertheprovisions of
the Ceylon Penal Code. The decision of the presidenton any such claim shall, for the purpose of the said meet-ing,andnofurther, be final,”—refers„onlyto persons
whosenames do not appear inthe settledlist, and is
intended to permit of a person taking part in the electionwho has acquired his qualification subsequent to thecertifying of the list.
Where oneof the objections toa candidate’s qualification to be
elected a Councillor was that he was in arrears for more than twoquarters in respect of taxes due on certain horses and vehiclesowned by him; . and where it appeared that such candidate's namewasnot inthe list of personsliableto the taxin question,
and that he had not been served with Form I under section 146 orwith Form J under section 145 of Ordinance No. 7 of 1887,—
Held, that the non-payment of taxes under the circumstancesabove-mentioned did not amount to a disqualification under section9 (e).
Wendt, J.—Considering the serious consequences under section9(s) of the non-payment of taxes, there must be some distinct
and definite default in the payment of some ascertained sum ofmoney. A person cannot be said to be in default in paying atax until he has been fixed with notice of the sum which he hasto pay and been called upon to pay it within some definite timefixed by the Chairman.
PPLICATION for a writ of mandamus bn the Chairman of theMunicipal Council directing him to call and hold a meeting
for a new election.
The facts are fully set out in the judgment.
W. Pereira, K.G., for the petitioner.
Domhorst, K.C., for the elected member.
A. St. V. Jdyewardene, for the Chairman.
Cur. adv. vult.
12th February, 1906. Wendt J.—
In this matter the petitioner, who was the sitting Member of theMunicipality of GaUe for Ward No. 5, obtained, a notice upon thefirst respondent, the Chairman of the Municipal Council, and thesecond respondent, Mr. Abeyawardena (who had at an election heldoft the 4th December, 1905, been declared duly elected for that ward
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February 12Wendt J.
for the three years beginning with 1906), to show cause why a writof mandamus should not issue directing the first respondent to calland hold a meeting for a new election. A number of grounds wereput forward to show that the meeting had been irregularly held,but in the view which I take of the matter it is unnecessary to gointo them.
The application is based on the ground that the petitioner waaduly qualified to be elected a Councillor for the Ward No. 5, andthat his rejection by the Chairman at the meeting after he had beenduly nominated on the ground that he was disqualified, rendered,the election null and void. It seems to me clear that if the officerpresiding at an election refused to accept the nomination of a dulyqualified candidate, so that the voters present were precludedfrom recording their votes in his favour, the election of any othercandidate must necessarily be void.
The facts bearing upon the petitioner’s qualifications as disclosedin materials before me are as follows. He has sat as Councillor forWard No. 5 since 1st January, 1900, and his name appears in thelist of persons qualified to be elected as Councillors, made and pub-lished in October last under the hand of the Chairman, as requiredby section 43 of the Ordinance. Section 13 provides for the pre-paration of this list, section 14 for its publication, sections 15 to 18for its revision subject to appeal to the Supreme Court; section 19makes the list certified under the hand of the Chairman conclusiveevidence of the due qualification of the persons named in it. Thesesections primarily apply to the first election held after the Ordinancecame into operation. For the purpose of subsequent electionssection 41 requires the Chairman in the first quarter of every yearto revise the list by removing therefrom the name of any person notentitled to be entered therein and by adding the name of any qualifiedperson, and further requires him every third year, in the monthof September, to prepare a new list, and directs that suchlist when prepared shall be published and open to inspection in thesame manner as provided in section 14. Section 42 applies theprovisions of sections 15 and 16 to the new list, but substitutes anapplication to the Magistrate for the appeal to the Supreme Court.Then follows section 43, which requires the new list to be certifiedunder the hand of the Chairman during the last week of October,and which declares that the list when so certified shall be final andconclusive evidence of the qualification of persons named thereinto be elected. In view of the fact that section 40 fixes the first weekin December for the election, I think the mention of the last weekof October indicates the desire, in view of the final character of the
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certified list, to keep that list open to as late a date as practicable. IBM*There is in my opinion nothing in section 22 which detracts from ^'ebruar^ 12'the conclusive effect given to the list by section 43. Section 22 gives Wendt J.to the President at the election the power .to inquire into and deoideany question arising as to the right of any person claiming to bequalified to be elected. This section in my opinion refers only topersons whose names do not appear in the settled list, and is designedto permit of a person taking part in the election who has perhapsacquired his qualification subsequent to the certifying of the list.
Section 43, while it makes the list conclusive evidence in favour ofpersons named in it, does not render that list the sole evidence ofqualification. I think therefore that the Chairman was wrong inentertaining any objection to the petitioner’s qualification to beelected.
It is unnecessary to go further, but as the question of the peti-tioner’s disqualification' was argued I am prepared to express myopinion on it. The objection was that the petitioner was obnoxiousto section 9 (e), which requires that a candidate must “ not be inarrears for more than two quarters in respect of any municipal ratesand taxes," inasmuch as he had not at the moment when he wasnominated paid the taxes due by him for the half of the year 1905 inrespect of certain vehicles arid horses owned by him (although hepaid them immediately after the objection was taken and before thevoting began). It was admitted that the tax had not been paid, but itwas contended that section 9 (e) contemplates taxes payable quarterly,whereas the tax in question was' payable half-yeanly. I am of a differentopinion. The mention of two quarters, equivalent to a half-year,has to be considered in connection with taxes as well as rates whichare payable quarterly. The section merely means that the defaultshall have continued for more than half a year. But it was nextargued that the petitioner was, not “ in arrears ’’ with this tax, andwith that view I agree. Section 128', which empowered the Muni-cipal Council to levy an annual tax on all carriages, horses, &c., directsfnat such tax ‘‘ shall be payable at such times as the Chairman shalldirect, and shall be assessed and levied in the manner hereinaftermentioned and, or by any by-law provided." Section 43 of theOrdinance makes the tax payable half-yearly in advance for eachhalf of the year. Section 145 requires the Chairman to cause to beprepared a list of the persons liable to the payment of the taxes,which list is to be open to the inspection of any persons interestedtherein. For the purpose of preparing it section 146 authorizesthe Chairman to serve persons with a schedule to be filled up withinformation respecting the vehicles and animals kept by them.
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February 12.Wbnst J.
Section 149 directs that if the amount of any tax shall not be pcudinto the Municipal Office “ within such time as the Chairman shalldirect ” a warrant may issue for its recovery. The form of warantprovided, Form E, recites that the defaulter has been rated (or taxed'as the case may be) at the sum stated and has made default in thepayment of the said sum and the said sum it still due and owing,
“ although notice demanding payment of the same was served onthe said person. ” The Municipal Council of Galle, in pursuanceof the powers conferred on it by the Municipal Councils’ Ordinance,has made by-laws relating to this tax—such by-laws as section 128contemplates. Chapter XI., by-law 2, prescribes a form of schedule(Form I) to be used under section 146. By-law 8 enacts that theSecretary shall from time to time whenever directed by the Chairmancause a copy of the said Form I to be served on every owner, resi-dent or occupier, of all houses, buildings, and lands within theMunicipality. By-law 4 provided that “ after the completion ofthe list of taxpayers mentioned in section 145 of Ordinance No. 7 of1887 the Secretary shall cause a notice in Form J thereunto annexedto be served on each of the persons therein metioned in the mannerprovided by section 269 of the Odinance, and such notice shallcontain the list of vehicles and animals in respect of which the taxis payable and the amount of the tax, and shall also state the timeand proportion in which the tax shall be paid. Any person desirousof objecting to the list shall be entitled to do so at any time in writingby letter delivered to the Secretary during the ten days followingservice of the notice, after which no objections shall be entertainedagainst the same. ” Form J informs the person liable that the Coun-cil “ have ordered you to be assessed in respect of the under-men-tioned vehicles and animals for the year 190—, and the followingsums are due therein ” (sec). Then follow detailed particulars andunder the heading “ Time of payment ” is specified “ on the 1st day of
Feburary, 190—, Rs.on the 1st day of August, 190—, Rs.”
and the form winds up: “You are hereby required to pay the amountof the above taxes into this office on or before the dates before-men-tioned, in failure whereof a warrant will be issued by the Chairmanfor the recovery thereof with costs.” By-law 5 enaqts that a personwho after having filled up and sent in the Form I acquires a carriage,&c., not mentioned in the form, shall send written notice thereofwithin two weeks to the Secretary. It was admitted that the peti-tioner’s name did not appear in the list of persons liable to the taxin question; that he had not been served with the Form I, ana ofcourse had not returned it; and that he had not been served withthe Form J demanding payment of the tax.
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Now, considering (he serious consequences entailed by the appli- 1006.cation of section 9 (e), amounting to a forfeiture of the right to be February 12.elected a Councillor owing to the non-payment of what may only Wendt, J.be a trifling sum (petitioner could only owe Rs. 13.25 for the half-year) there must be some distinct and definite default in the paymentof some ascertained sum of money.
In view of the provisions of the Ordinance and of the by-laws whichI have cited, I cannot hold that the appellant was in default of pay-ing the tax (which is what is meant by being “ in arrears ”), or eventhat an action could have been maintained against him, until he hadbeen fiveH with notice of the sum which he was required to pay andbeen called upon to pay it within some definite time fixed by theChairman. Petitioner was not therefore disqualified from beingelected at the meeting in question. It follows for the reasons I havealready given that the election held on the 4th December, 1905,was null and void. A writ of mandamus will issue, directing theChairman of the Municipal Council of Galle forthwith to give thenotice required by the law and thereafter to hold an election of aCouncillor for Ward No. 5.
In the matter of a Mandamus on the CHAIRMAN OF THE MUNICIPAL COUNCIL GALLE