> 32 N. L. I?. 10-
GARVIN S.P.J.—Jayawickreme v. Cassim.
The certification of the list (in accordance with section 42) is an.executive act. The doctrine of res judicata is not applicable to anexecutive act. Section 31 presupposes the validity of an election as aCouncillor, but not the right to remain as a Councillor.
F*. A. Hayley, K.C., in reply.
February 14, 1933. Garvin S.P.J.—
The appellant was elected a Councillor for the Third Division of theMunicipal Council of Galle, on December 7, 1932, for the period January 1,1933, to December 31, 1935. The election proceeded upon the revisedlists certified on October 31, 1932, and the appellant’s name appearedupon the list of persons qualified to be elected. Shortly after the electiona petition dated December 19, 1932, was addressed to the Chairmanin which it was alleged that the appellant had not the necessary propertyqualification which is necessary before a person’s name can be placedupon the list of those entitled to be elected Councillors. An inquirywas then held in the course of which a further allegation was made tothe effect that the appellant was an adjudicated insolvent and had notyet received a certificate and whose adjudication has not been annulled.In due course, the Chairman on January 13, 1933, recorded that he wassatisfied that at the date of his election the appellant had not thenecessary property qualification and also that he was at that datedisqualified in that he was an insolvent who had not obtained a certi-.ficate of conformity. He, thereupon, after notice to the appellant,ordered the erasure of his name from the list of persons entitled to beelected. The effect given to such an erasure by section 31 of theMunicipal Councils Ordinance is that the Councillor whose name iserased ceases to be a Councillor.
It was not necessary to enter into the question of the value of the propertyin respect of which this Councillor’s name was placed upon the list ofpersons qualified to be elected, nor were we invited to revise the Chair-man’s finding upon that point, for it is quite clear that at the date of hiselection the appellant was suffering under a disqualification by reasonof his insolvency. Section 10 (4)(c) enumerates among'the persons
disqualified to have their names entered upon the list of persons qualifiedto be elected a person who “is an uncertificated bankrupt or undis-charged insolvent ”. The phraseology is not happy since, in Ceylon, theexpressions “ uncertificated bankrupt ” and “ undischarged insolvent ”do not occur in the Ordinance in which our. law of insolvencyis to be found. There can, however, be no question that the languageplainly indicates the intention of the legislature that a person who falls',within the description of an uncertificated bankrupt is disqualified.The term “ uncertificated bankrupt ” may, of course, mean an insolventwho has not obtained a certificate in fact either because his certificatehas been refused or because the insolvency proceedings have not yet-reached the stage of the certificate meeting. It is, I think, in this latterand wider sense that the expression is used in the Municipal CouncilsOrdinance. This conclusion is supported by the language of section 29
12J. N. B 16GS1 (4/52)
GARVIN S.P.J.—Jayawickreme v. Cassim.
in which are enumerated a number of cases in which a Councillor becomesdisqualified from continuing to be a Councillor, one of these being whenhe “ becomes bankrupt or insolvent Further support is lent to thisview by the provisions of section 30 by which it is declared that any)Councillor who becomes “ bankrupt or insolvent ” ipso facto ceasesto be a Councillor. Since a Councillor who has been duly elected ceasesipso facto to be a Councillor immediately he becomes insolvent or bank-rupt, there could be no purpose in placing upon the list of personsentitled to be elected Councillors persons who at that date are bankruptor insolvent. There is, therefore, ample indication that a personadjudicated an insolvent and who has not obtained a certificate at thedate of the preparation of the list is an uncertificated bankrupt withinthe meaning of section 10 (4) (c) and is disqualified.
It is provided by section 31 that “ if at any time it is proved to thesatisfaction of the Chairman that any Councillor was at the date of hiselection not possessed of all the qualifications required by this Ordinancein respect of persons entitled to have their names placed on the list oflpersons qualified to be elected, or at such date was under any of thedisqualifications specified in this Ordinance or that such Councillorhas since his election ceased to possess such qualifications or becomesubject to any one of such disqualifications, the Chairman is (hereby)required after notice to such Councillor to order the erasure of the nameof such person from the list of persons entitled to be elected, and theChairman shall erase such name from such list, and the Councillor whosename is erased shall thereupon cease to be a Councillor ”. Inasmuch asthe appellant was suffering from the disqualification of being an insolventat the date of his election his case would seem to come within the pro-visions of this section. The appellant having been adjudicated aninsolvent as far back as June 24, 1921, he was suffering from this dis-qualification at the time at which his name was placed upon the list ofpersons qualified to, be elected. It was then urged that inasmuch asthe lists upon which his name appeared are by section 42 made “ finaland conclusive and the only evidence of the qualification of the personsand companies whose names appear therein to be elected or to voterespectively ”, section 31 must be given a restricted interpretationlimiting the powers created by section 31 to the case of a disqualificationwhich arose subsequent to the certification of the lists but before thedate of election. The language of section 31 is too clear to admit of sucha construction being placed upon it in accordance with the ordinaryrules of interpretation. The condition which must exist to entitle theChairman to exercise this power to erase the name of a Councillor fromthe list of persons entitled to be elected is that at the date of the electionhe was not possessed of all the qualifications required by the Ordinancein respect of persons entitled to have their names placed upon the listof persons qualified to be elected or at such date was under any of the-’disqualifications specified in the Ordinance. The appellant clearlywas under a disqualification at the date of his election and there is nothingin the section which says that the powers conferred upon the Chairmanwere not to be exercised unless such disqualification arose subsequentto the preparation of the lists.
GARVIN S.P.J.—Jayawickreme v. Cassim.
It was argued to us that unless section 31 be given the restrictedmeaning contended for there would be a conflict between the provisionsof section 31 and those of section 42. But if the provisions of section 42be interpreted as debarring all inquiry into the qualifications of aCouncillor to have his name upon the lists at any time after his electionthen it seems to me that it would apply with equal force to the case of adisqualification which occurs between the preparation and certificationof the lists and the election. But I cannot accept the contention that theprovisions of section 31 and of section 42 are necessarily at conflict orthat they are irreconcilable. Section 42 does undoubtedly make thelists final and conclusive and the only evidence of the qualifications of aperson to be elected. Its effect and, I think, the only effect intendedby the legislature was that any question as to the right of a person to beelected was to be determined by the simple test, is his name upon thelists or is it not. It definitely excludes evidence which is directed toshow that notwithstanding the presence of his name on the lists he wasa person who in fact had not the qualifications required by the Ordinancebefore $ person is entitled to have his name placed upon such lists. It isnot inconsistent either with the terms of that section or with its purposeand effect that a power should be vested in the Chairman to erase fron^the lists the name of a Councillor who after election was proved to hi$satisfaction to have been under a disqualification at the date of his election,whether that disqualification arose subsequent to the time his name wasentered upon the lists or whether it existed at the time when the lists werebeing prepared. Section 42 does not say that the lists shall be final and.conclusive and the only evidence in the case of a Councillor of the posses-sion by him of the qualifications required to have his name entered insuch lists or of the presence or absence of circumstances which the lawdeclares to be a disqualification to his name being entered upon suchlists. All it does say is that the lists shall be conclusive of his right to beelected. Indeed, section 31 assumes that he has been lawfully electedfor throughout the section a language is used which implies that theperson concerned, is a Councillor duly elected and hence it is that thesection specially provides that “ the Councillor whose name is erasedshall thereupon cease to be a Councillor ”. No question of his right or“ qualification to be elected ” arises, the question for determinationbeing whether or not such a Councillor was at the date of his electionpossessed of all the qualifications required in respect of persons entitledto have their names placed upon the list of persons qualified to be electedor at such date was under any of the disqualifications specified in theOrdinance. The provision vesting in the Chairman the right to removefrom the list of persons entitled to be elected the name of a Councillorwho at the date of his election is shown to his satisfaction to have beena person who was not entitled to have his name upon such list is not inmy opinion inconsistent with the other provision which makes the listthe sole evidence of his qualification to be elected". His election remainsa good election. The mere erasure of his name from the list of thoseentitled to be elected does not involve a declaration that his election was
Jamaldeen v. Hajira Umma.
bad or unlawful. The consequence which the law attaches to the erasureis that he ceases to be a Councillor. It is impossible to give section 31any other meaning than that which is implicit in the plain languageemployed by the legislature.
The appellant has been clearly shQwn to have been suffering from adisqualification at the date of his election. The Chairman was thereforeright in erasing his name from the list. The consequence which the lawattaches to such erasure is that the appellant ceases to be a Councillor.
It seems hardly necessary to refer to a subsidiary point taken byCounsel for the appellant. It was urged that the appellant thoughelected to be a Councillor did not become a Councillor till January 1and not being a Councillor at the time this inquiry commenced it is saidthat the proceedings were irregularly taken. It must, I think, beconceded that there is to be found in the language of section 31 somesupport for the contention that the word “ Councillor ” is used in thesense of a person who having been elected a Councillor has become oneby the commencement of the period for which he is elected to be aCouncillor, in particular, the provision which declares that upon theerasure of his name he ceases to be a Councillor ; but there is also muchto be said for the opposite view. The section does not lay down anystrict rules of procedure. All that it says is that the Chairman mayexercise the power vested in him if it is proved to his satisfaction thatat the date of his election the Councillor had not the qualifications requiredby the Ordinance or laboured under any of the disqualifications specifiedtherein. The inquiry was held shortly before January 1, 1933, andthe Chairman’s order and act of erasure were not made till January 13,1933. It is not suggested that the fact that this inquiry commenced afew days before January 1 has in any way prejudiced the appellant.I am not prepared to hold that in the circumstances of this case therehas been such an irregularity as vitiates the proceedings or the act of theChairman.
The appeal is dismissed with costs.
Maartensz A.J.—I agree.
Appeal dismissed.