In the Matter of the Petitions of D. M. DE S. ABHAYANAYAKE of Kandy

021-NLR-NLR-V-28-In-the-Matter-of-the-Petitions-of-D.-M.-DE-S.-ABHAYANAYAKE-of-Kandy.pdf


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Present: Schneider A.C.J.
In the Matter of the Petitions of D. M. de S.Abhayanayake of Kandy.
Municipal Couticils Ordinance—Residence icUhin a Municipal town—Permissive occupation of furnished rooms—Ordinance No. 0 of1010, 8S. 0 (2) and 11 (2) (c).
Where the question was whether a temporary occupation ofsleeping apartments, within Municipal limits, was sufficient toconstitute residence within the meaning of section 0 (2) of theMunicipal Councils Ordinance, and where the fuctt disclosed atthe inquiry indicated a pci-missive use of the apartments us guest,or an absence of the liberty to return to them at any time.
Held, that such an occupation of apartments was insufficient toconstitute legal residence.
A
PPEAL from an order of the Chairman of the MunicipalCouncil of Kandy declaring three persona to be duly qualified
voters and to be entitled to have their names retained in the listof voters.
The facts appear from the judgment.
V. Perera (with him Ameresehere), for petitioner.
K.E. Weerasooriya, for respondent.
November 8, 1926. Schneider A.C.J.—
In these appeals the appellant is the same person. They raisethe same question of law. They have been numbered in theRegistry of this Court as connected appeals. They can convenientlybe disposed of in one judgment.
The appellant objected to the names of the respondents appearingin the list of persons duly qualified as voters, published as a supple-ment to the ” Ceylon Government Gazette ” of September 3, 1926,on the ground that they did not satisfy the requirement in section11 (2) (c). The Chairman of the Municipal Council held that theydid. Against that holding these appeals are preferred under theprovisions of section 16 (1) of the Municipal Councils Ordinance,1910,1 which grants an appeal to the Supreme Court “ on anyquestion of law involved in the adjudication but not on any otherground.”
1986.
1 {No. 6 of 1910.)
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1986.^ The question of law is stated clearly in the petitions of appeal
Schneider "hksh have been carefully drafted. It is that the evidence regardingA.C.J. “ residence ” is insufficient to satisfy the requirement in sectionPetitions of ^ (2) (c). It becomes necessary therefore to ascertain “ what the
D.M.de evidence is,” which the Chairman had accepted as proving residence.8. Abhaya-
nayake jn appeal No. 659 the respondent is M. B. Panabokke. Hegave evidence at the inquiry and stated that he was the owner of/certain premises within the Municipal town; that he had leasedthem to an Association which ran a hostel in them; that he had notreserved any portion of the premises for his own use but that theSecretary, by arrangementbetween them, allowed himthe useof a
room and that theroomwas furnished with a bedin which he
slept whenever he came to Kandy, which was three or four timesin a month. Butundercross-examination he saidthat hehad
occupied the roomaboutthree times since the Associationhad
taken possession under the lease about six months before the dateof the inquiry. The date of the inquiry was September 80, 1926.
In appeal No. 659a the respondent is R. Divitotawela. He didnot appear at the inquiry, but was represented by a Proctor whocalled one witness. This witness stated that he knew the respondentto own property within the Municipal town; that the respondentusually resided in Uva, but whenever he came to Kandy he wentto the house of his mother-in-law which was within the Municipaltown; that he had a room of his own there furnished by himself;that there was a bed in that room; and that during the six monthspreceding the inquiry the respondent had come to Kandy three orfour times, and on each occasion had stayed about a week. He alsostated that the respondent was “ not a mere guest.”
In appeal No. 659b the respondent is B. Ratwatte. He toodid not appear at the inquiry or give evidence, but was representedby the same Proctor who represented the other respondents. Forhim, too, the same witness gave evidence. The witness said thatthis respondent was his brother and was a Ratemahatraaya livingat Balangoda, but that whenever the respondent came to Kandy,which was once every two or three months, he lived at his mother’shouse, within the Municipal town; that he had his own set of roomsthere, and regarded his mother’s house as his own; that wheneverhe came to that house he brought his wife and family with himand stayed one or two days, and sometimes even a month at a time.
The question for decision is whether on this evidence each of therespondents can be held to have been residing within the Municipaltown of Kandy at the time the list was prepared. According tosection 40 the list should have been prepared in July, 1926. Asthis question is of wide and practical importance it has to beconsidered carefully. Section 11 (2) (c) enacts that a person shallnot be entitled to have his name placed on the list in any year unless
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he “ resides within the Municipal town.” The inquiry, consequent 19S&upon any objection taken to the name of any person appearing in Schneiderthe list, should therefore be directed to ascertain whether the A.C.J.person whose qualification is called in question had that qualifi- p^iona ofcation not at the date of the objection, but at the time the person D.M. declaimed to have his triune placed on the list. The word “ reside ” S'^^a'should be construed in the light of the explanation to- be foundenacted in section 9 (2) of the Ordinance. 'It is:—
“ For the purposes of this section and of the following sectionsin this part, a person is said to ‘ reside ’ in any dwelling inwhich he sometimes uses a sleeping, apartment, althoughhe does not use it uninterruptedly, or has elsewhere adwelling where he has, and sometimes uses, another suchapartment. A person does not, for the purposes aforesaid,cease to reside in a dwelling where he has such an apartmentmerely because he is absent from it, if there is the libertyof returning at any time and no abandonment of theintention to return at pleasure.”
This explanation is of considerable assistance, the more so asit embodies almost word for word the principles laid down inElliott on Registration 1 which Earle C.J. adopted in the leadingcase of Powell v. Quest 2: —
" In order to constitute residence, a party must possess at theleast a sleeping apartment, but an uninterrupted abidingat such dwelling is not requisite. Absence, no matterhow long, if there be the liberty of returning at any time,and no abandonment of the intention to return wheneverit may suit the party’s pleasure or convenience so to do,will not prevent a constructive legal residence. Butif he has debarred himself of the liberty of returning tosuch dwelling by letting it for a period, however short,or has abandoned his intention of returning, he cannotany longer be said to have even a legal residence there.”
In Powell v. Guest (supra), and the other cases to which T shallpresently refer, the Judges interpreted the meaning of residencewith , reference to a period of time, such as six months, required byStatute law. Our Ordinance makes no mention of residence for agiven period of time, but this difference between the EnglishStatutory law and our Ordinance does not cause any difficultyin our adopting and following the decisions of the English Courts,because our Ordinance has in express terms adopted-those principles.
Section 9 (2) appears to have been intended for cases of “ residence ”such as that of the respondents, where for much the greater part of
1 2nd Ed., p. 204.
* {1864) 18 0. B. N. S. 72 ; N. <b P. 149 ; 34 L. J. C. P. 62.
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im
SCHKBIDKB
A;C.J.
Petitions ofD. if. d*8* Abhaya*nayedee
the period of time, which should be taken into consideration indeciding the question of residence, the claimants have been livingand sleeping and doing all that constitutes residence in the ordinarysense elsewhere than in the Municipal town. In Powell v. Guest(supra) it was decided that Guest had not resided for six calendarmonths within a Borough, because he was for a portion of thattime detained in a jail situated beyond a fixed distance from theBorough under a sentence of imprisonment without the option ofpaying afine. It was held thathe had debarred himselfof the
liberty ofreturning when he was guiltyof a criminal act byreason
of whichthe laws of his countryhadtaken away from him the
power ofreturning. In the samecaseByles J., who wasone of
the Judges, said: —
‘'It is wot necessary or convenient to lay down any universalrule on the subject, but I think the fair result of theauthorities is that legal inability caused by the criminaland voluntary act of the party, and not from misfortune,breaks the residence and destroys the qualification/'
In Ford v. Hart,1 it was held that in the case of a Military Officersubject to the will and pleasure of the Queen, and therefore notsui juris, there could not be such an intention of returning as toconstitute a constructive residence, although when he obtained leaveof absence, which he usually did for three months in the year,he used to reside in the house of his mother occupying apart-ments there which were always reserved for his use. Keating J.said:—
“ I am by no means disposed to say that in ordinary cases aresidence such as existed in the present case, even thoughit is in some sense permissive may not be a sufficientresidence for the purpose of entitling a free man tovote."
Brett J. said: —
“ Not by crime, but by the voluntary acceptance of a duty, therespondent has incapacitated himself from returning tothe city of Exeter."
In Ford v. Pye,2 it was held that there wus a break of residencewhich prevented the claimant from being duly qualified, becausehe entered into an arrangement with another person by whichthey agreed to exchange duties and residences for a certain periodfor the purpose of obtaining relaxation and a change of scene, and inpursuance of this arrangement had left his house and resided for a
»(1873) L. R. 9, C. P. 273.
* 43 L. J. 0. P. 21.
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portion o! the qualifying period in the house of the other person whocame and resided during the same period in the claimant’s house.Keating J. said:—
tmi
SkrcmKjDpK-
A.d.J;
“ The respondent had voluntarily given up the possession of hishouse for good consideration to another person for thatperiod, but whether the transaction amounted to a demise.of the house seems to me to be immaterial. He hadauthorized another to occupy it for a certain definiteperiod, and he himself not only did riot return or residethere during such period, but he never contemplateddoing so.”
Petitionaof
D.MtfiV
Sf*
In Durrani v. Carter,l it was decided that there was no residenceby a claimant. The claimant was entitled to the occupation byhim o£ a house, but had been absent from it under the followingcircumstances. He arranged with another person to do his workduring his absence and it was required of this person that he shouldreside in the house. Upon the claimant’s departure this persontook up his abode in the house. By arrangement between himand the claimant three rooms 'in the house were retained by theclaimant and kept locked up, the key being left in the possessionof a servant who had been employed by the claimant but wasduring his 'absence, employed by the other person. The claimantadmitted that he could not have returned to reside in the housewithout providing some other residence for the other person.Keating J. said:—
“ One test would be this: Could Mr. Carter have given permissionto any other person to use the house during the periodof his absence? I apprehend, clearly not. How thencan it be said that there was a residence in the house byMr. Carter? ”
What is the effect when the rule of law with regard to residenceto be derived from these authorities is applied to the eases of therespondents?
In the case of M. B. Panabokke (Appeal No. 649) there can be nodoubt that he is disqualified. He had debarred himself of theliberty of returning by leasing the premises. He had therefore nolegal residence there. The Chairman’s order in regard to him mustbe set aside.
The case of Divitotawela is not quite as clear as that of Panabokke,and presents some difficulty. I am unable to understand thestatement in the evidence that he was not a mere guest. Theevidence seems to me to indicate that he was only a guest of hismother-in-law upon all those occasions when he is said to have-visited Kandy. Bis residence was clearly permissive, but that of
43 L. J. C. P. IT.
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1926.
SCKNBXDEB<
A.GX
Petitions ofi>; M~deS. Abhaya-nayafce
itseli would not destroy the qualification. His mother-in-lawmight have withdrawn her permission at any time, but the evidenceis that the permission did in fact exist at all times material forconstituting the required residence. But, on the other hand, theeffect of the evidence is that he had been received merely as a guest.His visits were at long intervals. The evidence suggests no morethan that he was allowed to use a room which had been furnished byhimself. This room was not reserved for his use. His claim tohave resided is not even as 6trong as one that might be made by operson who comes to Kandy occasionally and occupies a room in ahotel. The only feature which distinguishes his claim from thatof such a person is that he had furnished the room in the houseof his mother-in-law. In his case, too, I must hold that he didnot reside in the Municipal town of Kandy.
There remains the case of Ratwatte. It presents no difficulty.As a Ratemahatmaya he had taken upon himself the performanceof certain duties attached to his office which necessitated hisresidence at Balangoda, and thereby voluntarily incapacitatedhimself from returning to his mother's house at his own pleasure.The reasoning in Ford v. Hart {supra) is clearly applicable to hiscase. As a public servant he would no doubt be entitled to leave,but might under some circumstances have none at all. He is nolonger sui juris. The adjudication of the Chairman in his case alsomust be set aside.
I accordingly direct that the names of the three respondents beerased from the list, and that each of them do pay to the appellanthis costs of the inquiry, and of this appeal.
Appeal allowed. .