Present; Dalton J.
In the Matter of an Application for a Writ of Quo Warranto.MURUGESU v. MUTTUCUMARU.
of proof—Village Communities Ordinance, No. 9 of 1924, s. It (b).
Evidence of constructive inhabitancy may be given in proof ' ofresidence within the meaning of section 18 (b) of the VillageCommunities Ordinance.
Where there has been no actual inhabitancy during part of theperiod, the onus is on the claimant to prove a constructive residenceand in order to discharge that onus there must be an intention ofreturning after a temporary absence and a power of returning atany time without breach of any legal obligation.
PPLICATION for a writ of quo warranto in respect of the
office of Chairman of the Village Committee of Karainagarsubdivision. Petitioner, who was a resident of the division, contendedthat the respondent was not legally qualified for election as acommittee member, and therefore as chairman.
H. V. Perera (with A. Gnanaprakasam), for petitioner.
Hayley- K.C. (with Nadarajah and Ramachandram),for
February 13, 1930. Dalton J.—
The petitioner asks that the respondent vacate his office aschairman and as member of the Village Committee of Karainagarand that a fresh election of such chairman and member be ordered.Petitioner is a resident of Karainagar, an elected member of theVillage Committee, and an unsuccessful candidate for the position ofchairman. In support of his petition he urges first, that respondentis nob legally qualified for election as a committee member and•therefore as chairman, and secondly, even if he be qualified, hiselection as chairman was irregular and null and void.
It is provided by section 18 (b) of Ordinance No. 9 of 1924 (TheVillage Communities Ordinance) that a person shall be disqualifiedto be elected or to be member of any committee unless he has beenresident in the subdivision for a period of one year immediatelyprior to the date of his election.
, The date of election of the Committee was June 11, 1929; thedate of the meeting of the Committee at which the respondent waselected as chairman was July 4, 1929.
With regard to the first point raised, petitioner urges thatrespondent was not a resident of the subdivision of Karainagar fora period of one year immediately prior to June 11, 1929. In support
of this allegation affidavits have been filed, and have been replied toby affidavits on behalf of the respondent. The facts I find provedby those affidavits are as follows: —
Respondent was a public servant who retired from Governmentservice after 42 years’ service in January, 1929. From 1922 to thedate of his retirement he was employed as Chief Clerk, Fiscal's Office,Jaffna. Whilst so employed he rented a house, where he lived withhis wife and children at Vannarponnai, a suburb of Jaffna and about14 miles from Karainagar. During this time, and previously, heowned a house, fields, and gardens at Karainagar, his ancestralhome, so it was stated, to which he went during convenient weekends, during all holidays, and when he was on leave, to reside thereand .to look after the cultivation of his fields and gardens whichare stated to be fairly extensive- He remained there permanentlyafter his retirement on pension in January, 1929. The house inJaffna was occupied as a matter of convenience to himself, since itwould have been possible, so far as the performance of his dutieswere concerned, for him to have travelled the 14 miles to and fromKarainagar daily-
Affidavits were filed by the petitioner to support his contentionthat respondent did not reside at Karainagar at all in 1927 or 1928.One deponent, who from his position as a manager of a cigarfactory should be a responsible person, actually states that petitionerwas living in a house to the south of his at Vannarponai in 1927 upto January, 1929, “ all the days of the week and all the months ofthe year.” If he means that respondent was actually there atthose times, as I gather he doe^ mean, I am quite satisfied theaffidavit is untrue. If it means he has a residence there, then it isnot in any way inconsistent with petitioner’s story.
Another affidavit filed by the petitioner by an inhabitant ofKarainagar West is to the effect that in 1927, 1928, up to January,1929, respondent did not live in his house at Karainagar, that itwas unoccupied for some months and was also rented to a school-master and subsequently to a tea boutique-keeper who stored tobaccothere. A further affidavit definitely states " this house was rentedfor the last two or three years to a schoolmaster and then to aboutique-keeper who stored tobacco there during the year 1928.”If this evidence is reliable then it seems to me respondent retained•no place of residence in Karainagar in 1928. But I am satisfiedit is untrue. In addition to the evidence of the respondent I havean affidavit from the schoolmaster himself, the truth of which Ihave no reason to doubt. Respondent’s premises consist of ahouse with four rooms, a kitchen, three verandahs, and a largecompound. From November, 1927,- to August, 1928, he wasallowed, he says, by the respondent the use of one room, the kitchenand a verandah free of charge ; that respondent reserved two rooms
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for his own use, and rented out a fourth room for temporarilystoring tobacco. During this period, of which two months onlyfall within the material twelve months, he states that respondentfrequently returned to the house with his family and stayed there.These frequent visits are corroborated by the evidence of a residentof Jaffna and neighbour of the respondent who took charge ofvaluables left in Jaffna and who put one of his servants to sleepon the premises there. There is ample reliable evidence to supportrespondent’s contention.
The- question to be decided is whether the facts constituteresidence at Karainagar within the meaning of section 18 of theOrdinance. The principles to be applied in such a case have beenset out in Soysa v. Per era 1 and the authorities there cited. Actualinhabitancy during every one of the days of the period is ■ notnecessary, but it is sufficient if a constructive inhabitancy be madeout. If there was in fact no actual inhabitancy during part of thetime, as is admitted here,the onus is on the claimant to prove a
constructive residence, andin order todischargethatonus there
must be an intention of returning after a temporary absence and apower of returning at anytime withoutbreach ofanylegal obliga-tion. There is no doubthere of thatintentionandpower being
proved. It is not denied that a man may have several residencesand, without referring to the numerous cases on the point dealt within Rogers on Elections, I might mention Stanford^ v. Williamswhich is similar to the case before me in several respects. Uponthe facts proved here I have no doubt that respondent has shownthat he was resident within the • subdivision of Karainagar duringthe material twelve months.
The second allegation made by petitioner is to the effect thatrespondent’s election as chairman on July 4 is null and void.The chair at that meeting was taken by Mr. Nagalingam, one of thefifteen elected members, he having been nominated at the meetingon June 11 as convener of the member’s meeting to be held for theelection of chairman. In support of the alleged irregularitypetitioner first of all states that Mr. Nagalingam acted as chairmanwithout the sanction or approval of any of the other members andwithout authority. He then alleges that when the names of threecandidates for the post of chairman, of whom he was one, wereproposed and seconded, the acting chairman allowed every memberto vote for more than one candidate, and as a result of this “ pluralvoting, ” as he calls it-, the respondent was elected chairman. Thepetitioner then goes on to allege that the acting chairman secretedthe document in which the votes and proceedings of the meetingwere recorded and sent a different, and therefore entirely false,report of the proceedings to the Government Agent.
i 22 N. L. R. 464.« 80 L. T. 490:
D ALTOV J.
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It is somewhat difficult to understand from petitioner's affidavitwhat was the method of voting that he alleges was made use of.
I infer, however, that he means that each proposal was put to themeeting separately, and Jie alleges that respondent received twelvevotes, another candidate five, and himself only four. He then addsthese together and says there were more votes than voters. If theproposals, were put forward separately and voted upon separately,petitioner cannot add the total number of votes on the severalproposals together and call that plural voting. It is possible ofcourse that he does not mean that, but his affidavit as to what-actually took place is difficult to understand. It is supported in'exactly the same words (the two affidavits being in identical termsthroughout) by one other member present at the meeting.
Against these allegations I have a certified copy of the minutes ofthe proceedings from the! acting chairman, and in addition anaffidavit from him as to what took place. Petitioner, it must be'noted, has not suggested any reason why Mr. Nagalingam shouldsecrete the alleged true minutes of the proceedings and fabricate.entirely false minutes. It could hardly be done secretly as alleged,for all the persons present, members and others, must be in thesecret. The certified minutes confirm petitioner’s statement thatthree names were proposed and seconded, first that of respondentand then petitioner and another. The latter two proposals arein the minutes called amendments of the first proposal. The twoso-called amendments were first put to the meeting and lost.The minutes do not record the number of votes. Then the originalproposal was put, and carried by a large majority.. Again thenumber of votes is not recorded, but from the affidavit of the actingchairman one gathers that the election of the respondent wascarried by eight votes to five ; the large majority referred to in theminutes is therefore three. Only thirteen of the fifteen membersvoted, and the deponent denies that there was any plural voting atall. He also denies that he secreted any document relating to thefheeting. This version of the votes obtained by respondent issupported by the affidavit of the member who proposed the name ofthe respondent.
It is subject for remark that petitioner at the meeting on July 4never objected to the name of' respondent being put forward aschairman, as being a person not qualified to be a member of thecommittee. There is evidence to. show that he was fully awareeven before June 11 that respondent’s name was going to be putforward for election to the Committee. He purports to explain theabsence of any objection to respondent on July 4 by saying that .thatwas not the proper place to take such an objection, as the respondenthad in fact been elected a member of the committee. But peti-tioner’s affidavit and actions show he is not such a stickler for legal
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niceties as that. Disappointment at his own defeat, in my opinion,is the correct explanation of his subsequent act in seeking to upsetthe election of. his opponent. That disappointment has furjbher in.my opinion led him on to make false charges against the actingchairman. He has failed to substantiate his charge that theelection of respondent as ohairman was irregular. Failing thus onboth points the order nisi must be discharged with oosts against thepetitioner.