Reyal v. Assan.
1938Present: Poyser S.P.J.
REYAL v. ASSAN.
573—M. C. Colombo, 2.
Dwelling house—Meaning of term—Exclusive use for residential purposes,unnecessary—Tenancy of qualifying property—Colombo MunicipalCouncil (Constitution) Ordinance, No. 60 of 1935, ss. 2 (2) (a) and 14(3) (c) and 14 15).
To constitute a dwelling house within the meaning of section 2 (2) (a)of the Colombo Municipal- Council (Constitution) Ordinance it is notnecessary that the house should be- used exclusively for residentialpurposes. It would be sufficient if some person dwells in the house.
Under section 14 (3) (c) of the Ordinance all tenants of a qualifyingproperty are qualified to be registered as voters.
^^PPEAL from an order of the Municipal Magistrate of Colombo.
H. V. Perera, K.C. (with him J. E. M. Obeyesekere and M. M. I. Kari-apper), for the objector, appellant.
L. A. Rajapakse (with him J. E. A. Alles), for the respondent.
40/22Cur. adv. vvlt.
POYSER S.P.J.—Reyal v. Assart.
October 3, 1938. Poyser S.P.J.—-
The appellant, a registered voter in the San Sebastian Ward of theColombo Municipality, objected to the respondent’s name being includedin the list of voters for that ward on the grounds that he was not atenant of qualifying property situated within the limits of that wardand that he was not resident in such ward on the material date. TheCommissioner referred this objection to the Municipal Magistrate andthe latter on August. 27 last, held that the objection was unsound anddismissed it.
The facts are as follows : The respondent was the tenant of the premisesNo. 130, Hulftsdorp street, with the exception, of two rooms used asoffices. He slept there and had his meals there. The premises in questionsatisfy the provisions of section 14 (3) of the Colombo Municipal Council(Constitution) Ordinance, No. 60 of 1935, for they are assessed at Rs. 600a year. The respondent was residing in these premises on the materialdate, namely, May 1, 1938, and had beeni residing there since May, 1936.
On behalf of the appellant it was contended (1) that the respondentdid not reside in a dwelling house as contemplated by section 2 (2) (a) ofthe Ordinance, (2) that assuming he did, he was not responsible to theowner for the payment of the rent of the qualifying property within themeaning of section 14 (3) (c) of the Ordinance as there was more than onetenant of the qualifying property but no joint tenancy as contemplatedby section 14 (5).
I do not think there is any’ substance in the first contention that wasraised ; in fact, it was not pressed. A dwelling house is not defined inthe Ordinance. Under certain English Acts there is such a definition,for example, in section 5 of 41 & 42 Victoria, chapter 26, it is defined asincluding any part of a house separately occupied as a dwelling. In myopinion to constitute a dwelling house some person must dwell in the houseand it is not necessary that the house should be used exclusively forresidential purposes. A number of houses can be used and are usedpartly for business purposes and partly for residential purposes, as thesepremises were, and I can see nothing in the Ordinance which lays down,or from which it can bq inferred, that “ dwelling-house ” means a housewhich is exclusively used for residential purposes. For these reasons theappellant is not, in my opinion, entitled to succeed on this ground.
In regard to the second point, .the Ordinance in my opinion contem-plates both separate and joint tenancies of qualifying property. Whensection 14 (3) (c) and section 14 (5) are read together I do not think therecan be any doubt on this point. It was argued that the words in section14 (5) “ be deemed to be a tenant of the qualifying property^- notwith-standing the fact that the qualifying property is jointly tenanted ”.indicated that the Ordinance only contemplated a person wh^ was the' sole tenant of the qualifying property or was a joint tenant. 1 do not; think this is so dr that it was intended to restrict the operation of thissection to persons who were joint tenants as recognized under the Englishlaw, that is who had an interest in real property passed by the sameconveyance or claim. I think the Ordinance contemplated, subject tothe provisions of section 14 (5), that all tenants of any qualifying propertyshould be qualified to be registered as voters.
POYSER S.PJ.—Fernando v. Grero.
The appeal will therefore be dismissed. 1 would, however, add that ifthe provisions of Ordinance No. 14 of 1938, which amended the principalOrdinance, were applied these objections could not arise, for in section 2the word “ building ” is now substituted for the word “ dwelling-house ”and the definition of “ tenant ” in section 14 (b) is amended and it nowincludes any person in possession or occupation of any qualifying propertywhether as lessee, sub-lessee, tenant or sub-tenant. The amendingOrdinance came into force on April 12, 1938. The. Magistrate howeverconsidered that this objection was unaffected by the amendmentsintroduced by the amending Ordinance as the matter of the revision ofthe lists was a pending matter when such amending Ordinance came intoforce and consequently,- having regard to the provisions of section 5 (3)of the Interpretation Ordinance, 1901, had to be carried on and completedas if no such amending Ordinance existed. Because I am upholdingthe Magistrate’s decision, it must not be assumed that I agree with hisdecision on this latter point. For the purpose of this appeal I think theobjection fails if only the principal Ordinance is taken into account andit is therefore unnecessary to consider whether the amending Ordinancecan be applied or not.
The appeal is dismissed. The appellant will pay the respondent thecosts of the appeal and of the inquiry before the Magistrate.
REYAL v. ASSAN