Somasunderam v. Kotalawala.
Present: Koch J.
SOMASUNDERAM v. KOTALAWALA
In the Matter of the Election for the BadullaElectoral District
Election petiton—Lease of house by elected member to Medical Department—Contract for or on account of the public service—Time of election—Cey-lon (State Council) Order in Council, 1931, Article 9 (d) and 72.
Where the respondent at the time of his election to the State Councilwas the owner of premises which were hired on a monthly tenancy bythe Director of Medical and Sanitary Services as an office for the MedicalOfficer of Health,—
Held, that the respondent was holding a contract entered into with theDirector of Medical and Sanitary Services for or on account of the PublicService within the meaning of Article 9 (d) and that he was disqualifiedfor election as a member of the State Council.
Held, further, that the time of election contemplated by Article 72 (e)may be either nomination or election day but not the day on which theresult of the election is published in the Government Gazette.
HP HE respondent was nominated as a candidate for the BadullaElectoral District on January 15, 1936. The poll was held onFebruary 27. On the following day the respondent was declared electedand the result was announced in the Government Gazette of March 10.
The respondent was the owner of. the premises “ Bridge View ”, whichwas engaged by the Director of Medical and Sanitary Services as an officefor the Medical Officer of Health, Badulla. The tenancy lasted fromJanuary 1, 1930, to March 31, 1936. The rent for March, 1936, was notaccepted by the respondent.
The petitioner alleging the above facts prayed that the election bedeclared void on the ground that the respondent was disqualified to be amember of the State Council under Article 9 <d) of the Ceylon (StateCouncil) Order in Council, 1931.
Somasunderam v. Kotalawala.
H. V. Perera (with him R. L. Pereira, K. C., and N. Nadarajah), for thepetitioner.—Under Article 42 (e) of the Ceylon (State Council Elections)Order in Council, 1931, if at the date of the election, it is void, that wouldbe sufficient to render the election void. An election commences with thenomination. It is not necessary to ascertain the precise time.
The principle underlying Article 9 (d) of the Ceylon (State Council)Order in Council, 1931, is that there should not be any conflict of interest.The evidence shows that the respendent directly held a contract enteredinto with the Director of Medical and Sanitary Services. It is immaterialwhether the former waived the rent for March, 1936. It is not necessaryto discuss the effect of monthly tenancies as the tenant occupied thepremises till March, 1936.
The contract considered in Cooray v. Zoysa1 is not so definite as thisone.
The building was utilized in connection with the anti-malaria campaignand it clearly falls within the category of contracts entered into “ for oron account of the public service ”.
Under the old Order in Council a person was not disqualified on thisground but was liable to a penalty. Counsel cited Ford v. Newth ’; Harfordv. Lynskey
N. E. Weerasooriya (with him C. W. Perera and T. S. Fernando), forthe respondent.—The authorities cited are not applicable as the EnglishAct is not identical with the Ceylon Order in Council.
The “time” in Article 74 (e) of the Ceylon (State Council Elections)Order in Council does not mean the time of the poll, but it refers to thepublication in the Gazette under Article 47. Judicial notice of the resultof the election can be taken under section 57 (7) of the Ceylon EvidenceOrdinance, 1895. There may be other acts as the declaration of thenumber of votes after the poll by the Returning Officer, but the time ofelection refers only to the publication in the Gazette and never refers tothe declaration by Returning Officer.
Article 9 (d) of the Ceylon (State Council) Order in Council has not beeninterpreted anywhere. Cooray v. Zoysa (supra) deals with an entirelydifferent case.
It is submitted that the respondent had a contract with the MedicalOfficer of Health and not “ for or on account of the public service ”. Theburden is on the petitioner to prove this conclusively as the prceedingsare quasi-criminal—see Lateef v. Saravanamuttu'. The question of proofin election cases has been dealt with in 12 Halsbury (2nd ed.) p. 439, s. 854;and by Martin B. in Warrington (1896) 1 O.M. & H. 42 at 44; Lichfield’scase (1880) 3 O.M. & H. 136.
It is the right of every citizen to vote or represent a constituency. Ifthat right is removed it must be done in clear and express terms as heldin Royse v. Birley“.
Even if the contract was entered into “for or on account of the publicservice”, the article 9 (d) does not contemplate contracts of this nature.
3 (1699) 1 Q. B. D. 852.
* (1932) 34 N. L. R. 369.
5 C. L. w: 111.
(1901) 1 Q. B. 683.
* (1869) 20 T. 786 at 792.
Somasunderam v. Kotalawala.
The proviso to that article cannot, control the main article. It contem-plates a person who holds or enjoys a commission. The words “ contractor agreement” must be consistent with the word “commission”. Theword “commission” is defined by Abbot C.J. in King v. Dudmen'. Incertain cases it may amount to a contract. Contracts and agreementsare distinguished in Anson (13th ed.) pp. 2 and 3. These words arenecessary to include certain kinds of commissions. The words used inthe English Act would include a contract of this nature but not the wordsused in the present article.—See Ystradyfodwg and Pontypridd MainSewerage Board v. Benstead *.
[Koch J.—Why should not each word be given its full meaning?]
They must be judged by their associates.
The English Act. 22 Geo. III. c. 45, s. 1, was intended to disqualifypeople who contracted to supply goods. During the long period when thisAct was in force, there was not at single case where it was held that alandlord was disqualified. In the Ceylon Order in Council many wordshad been omitted so that the remaining words are more appropriatefor commissions. The proviso is also consistent because it deals withthe pensions of officers. It is in the nature of a commission. Further,the duty of the Medical Officer of Health is not to engage offices. Hencethis contract would not be “ for or on account of the public service, The nature of the contract is a monthly tenancy. At the end ofthe month there is a renewal of the contract. Once possession hadbeen given by the respondent in 1930, his part of the contract was over.There was no evidence that he had to do any thing further. The-positionof the respondent was merely that, of a creditor who had to receivemoney. Theoretically the landlord may have certain duties to perform,but there were none in this case. Here, there is contract which, is notcontinuous. The article does not contemplate such a contract. InRoyse v. Birley the goods had been delivered and there was only paymentto be made. As far as the landlord was concerned it was an executedcontract. See Thomson v. Pearce'.
S. J. C. Schokman, C. C. (with him M. W. H. de Silva, Deputy Solicitor-General) as amicus curiae.—There is no English case where a contractof tenancy was considered; but during the war, private premises wererequisitioned for war purposes and a special Act, 7 and 8 Geo. V. c. 25, s. 9,was passed to remove the disqualification.
H. V. Perera.—A creditor is not a contractor. The duties of a landlordare specified in Wille on Landlord and Tenant, p. 253. Once this is takeninto a account, the landlord is not merely in the position of a creditor. Thecontract of tenancy is a continuing contract. Akbar J. interpreted themeaning of the “ time ” of the election in Cooray v. Zoysa.
N. E. Weerasooria, in reply.—No one knows under what circumstancesthe English Statute, 7 and 8 Geo. V. c. 25, was enacted. Counsel citedYstradyfodwg and Pontypridd Main Sewerage Board v. Bensted “(supra) ;Tranton v. Astor Rogers on Elections, vol. 2, p. 24.
Cur. adv. vult.
» 4 B. <t C. 850 at 854.
2 (2907) A. C. 264 at *68.» <2869) 20 L. T. 786.
‘ (1819).1 B. A B. 25.
5 (1936) 5 C. L. W. Ill at p. 124.• (1917) 33 T. L. R. 383 at 385.
208KOCH J.—Somasvmderav}, v. Kotalawala.
September 30, 1936. Koch J.—
The petitioner and the respondent were candidates for election at theState Council election held on February 27, 1936, for the Baduulla ElectoralDistrict. The respondent was declared by the Returning Officer dulyelected on February 28, 1936. He had polled 15,795 votes as against thepetitioner who only polled 7,000 odd. The nomination day was fixed forJanuary. 15,1936, when the petitioner and the respondent stood nominatedfor the electoral district and the election was adjourned in order to enablea poll to be taken on February 27, 1936. The result of the polling wasduly announced in the Government Gazette on March 10, 1936. Withintwenty-one days of this announcement the petitioner on March 27, 1936,filed his election petition and complied with the necessary formalities andrequirements prescribed by the Ceylon (State Council Elections) Order inCouncil of 1931.t
In this petition the petitioner states that the election was void underArticle 74 (e) of the aforesaid Order in Council as the respondent was atthe time of his election a person disqualified for election as a member.This disqualification the petitioner avers was due to the fact that therespondent was at the time of his election holding a contract or agreementmade and entered into with the Director of Medical and Sanitary Servicesor the Medical Officer of Health in Uva Province, for or on account of thepublic service, and that the contract or agreement referred to was acontract of tenancy by which the said respondent let for hire the premisescalled “ Bridge View ” situate in Badulla town for the purpose of provi-ding office accommodation for the Medical Officer of Health, Uva, and hisstaff. He further avers that this tenancy began in January, 1930, andwithout interruption continued up to the date of his petition and was stillcontinuing.
1 am satisfied that on the evidence led by the petitioner the premises“ Bridge View ” in Badulla town was engaged by the Director of Medicaland Sanitary Services as an office for the .Medical Officer of Health,Badulla, on a monthly tenancy renewable from month to month as fromJanuary 1, 1930, at a rental of Rs. 55 per month. I am also satisfiedthat this tenancy continued uninterrupted up to March 31, 1936, subjectto the qualification that owing to the depression the monthly rental wasreduced in 1931 to Rs. 45. I am further satisfied that this reducedmonthly rental was paid to and accepted by the respondent up to the endof February, 1936.
The evidence clearly shows that the monthly rental was payable at theend of each' month and that , the procedure adopted (which is the usualprocedure) was for the respondent to receive these rents at the end ofeach month as they fell due by signing a voucher that was prepared andperfected for the purpose at the office of the Medical Officer of Health,Badulla. This practice was regularly followed up to the end of February,1936, but on March 29, 1936, the respondent gave notice to the Directorof Medical and Sanitary Services terminating the tenancy on April 30,1936, with the request that he would feel obliged if the tenancy could beterminated-earlier as he had been declared elected member of the StateCouncil for Badulla on March 28, 1936. The Director in pursuance -ofthis request made immediate arrangements for the shifting of the office
KOCH J.—Somasunderam v. Kotalawala.
of the Medical Officer of Health from “ Bridge View ” to another bungalowand “Bridge View” was vacated at the end of March. The March rentfor “ Bridge View ” was sent from the head office at Colombo of theDirector of Medical and Sanitary Services in March to the Medical Officerof Badulla for payment to the respondent but the respondent had failedto attend and sign this voucher and to receive this rent. This rent wasreturned by the Medical Officer of Health to the head office. The reasonwhy the respondent was not specially called upon by the Medical Officerof Health (Dr. Ferdinands) to sign the voucher and receive payment wasdue, he says, to the fact that he learnt that the respondent having beendeclared elected on February 28, 1936, was averse to receiving the rentfor the month of March. This sum of Rs. 45 though returned by theMedical Officer of Health to the head office has been and is still availableto the respondent who undoubtedly is entitled to this sum, and can atany time hereafter legally claim the same so long as it is not prescribed.The fact that the rent for March, 1936, had not been received by therespondent into his hands cannot obviously affect the continuance of thecontract of tenancy up to March 31, 1936, as a contract of tenancy canonly be legally terminated by the giving of due notice or by mutualconsent. On the facts established I have no hesitation in holding that-the respondent in the capacity of landlord was a party to a contract oftenancy in respect of premises “Bridge View”, Badulla, and that thiscontract of tenancy commenced on January 1, 1930, and continued up toMarch 31, 1936.
Now who is the other party to this contract? The respondent’sCounsel first contended that this other party was ho other than theMedical Officer of Health, Badulla. He argues that the Medic^ Officerof Health was the actual tenant as he himself was in occupation and asthe various vouchers signed by the respondent were typed in the officeof the Medical Officer of Health by an officer of his and signed by theMedical Officer of Health himself. I am not in the slightest degreeimpressed by this argument as the test to be applied as to who the otherparty to the contract was is not dependent on circumstances such as thsserelied on by the respondent but on the identity of. the actual party withwhom the contract of tenancy was actually entered into. There can beno doubt whatsoever on the evidence of Dr. S. T. Gunasekera, ActingDirector of Medical and Sanitary Services, and the evidence of DoctorsDissanayake and Ferdinands supported as it is by the documents PI.toPI 5 that this contract of tenancy was entered into by the respondentwith the Director of Medical and Sanitary Services for the purpose ofproviding office accommodation for the Medical Officer, of Health, Badulla.It is true that the evidence discloses that “ Bridge View ” was selected bythe then Medical Officer of Health of Badulla, Dr. Dissanayake, but thatwas on instructions from the Director because the Medical Officer ofHealth happened to be on the spot and perhaps was the best judge as towhether the building would suit him as an office. The fact that theselection of the premises was left to the agent of a principal is no reasonfor inferring that the contract of the landlord was with that agent. I amclear in my mind that on the evidence there can f)e no question that thiscontract of tenancy was between the respondent and the Director of the40/18
KOCH J.— Somasunderam v. Kotalawala.
.Medic©! and Sanitary Department. In fact the respondent’s Counsel,Mr. Weerasooria, later in his argument felt contrained to admit that thiswas so.
The-ground as I have stated bofore on which the petitioner relies is thatthis contract which was entered into with the Director of Medical andSanitary Services was for or on account of the public service, a require-ment that is set out in Article 9 (d) of the Ceylon (State Council) Order inCouncil of 1931. On this point I am satisfied that the Department ofMedical and Sanitary Services is one of the Departments of the Public^Service and therefore a part of that service, and that this contract wasentered into by the Director not for his own private purposes but for andon account of the public service. There is the evidence of the Acting■Director on this point and there is also his evidence that the rents werepaid from public funds. This evidence is supported by the evidence ofMr. J. P. de Vos, Assistant Accountant of the Department of Medicaland Sanitary Services, and Mr. D. A. Fernando, Audit Examiner, as wellas the documents produced relevant to that point. Even assuming thatthis contract was entered into with the Medical Officer of Health, Badulla,and not with the Director of Medical and Sanitary Services, I cannot seehow this will make any difference as I am firmly of opinion that theMedical Officer of Health in thus contracting was acting not in his personal- capacity or for his personal benefit but for and on account of the Depart-ment of Medical and Sanitary Services of which he was a member andtherefore for and on account of the public service. No authority has beencited by respondent’s' Counsel to satisfy me that a contract made by aperson with the public service should be entered into by that person withsome particular specified officer of the public service, and so far as I amaware there is no such provision in any of our Ordinances unlike the■ special provision in section 456 of the Civil* Procedure Code which saysthat all actions by or against the Crown shall be instituted by or againstthe Attorney-General.
The evidence called' by the petitioner and the documents relied oh byhim clearly proved that the intention of the respondent in entering intothe contract of tenancy was to do so with the public service, through itsrepresentative, the .Director of Medical and Sanitary Services. In factthe respondent in his letters P 1, P 6 and P 13, refer to his bungalow beingrequired and used for the purposes of the Anti-Malarial Campaign. InRoyse v. Birley Brett J. referring to the corresponding section in theEnglish Statute (22 George III. C. 45) says, “ I think that to render itsprovisions applicable a contract must be entered into with the knowledgethat it was with the agent of the Government”. I have no hesitation insaying that the Director of Medical and Sanitary Services was acting inrespect of this contract as the agent of the Government and that therespondent was well aware that the Director was acting as such agent.
Counsel for the respondent stoutly maintain that granted- the respond-ent entered into a contract of tenancy and granted that that contractwas with the Director of Medical and Sanitary Services and granted thatthe premises leased were put to public use, nevertheless the position fallsshort of such a contract having been entered into with a person for or on1 (1869) 20 Law Times Reports 786 at p. 792.
KOCH J.—Somasunderam. v. Kotalaioala.
account of the public service. He contends that' contracts “ for or onaccount of the public service” are contracts which contemplate thatsomething should be done under that contract by the other party (in thiscase the respondent) for the benefit or the use of the public service,and that the acts contemplated do not therefore include the mere lettingout of the premises on a contract of tenancy no matter whether such'premises were intended to be used for the public service. He says thatthe other parties contemplated are persons such as Government contractorsand public contractors. He cites Rogers on Elections, vol. 2, 20th ed.,pp. 21 to 25 and 21 Halsbury, Old ed., p. 658, s. 1177. I do not find hereanything that definitely defines the particular nature of the act that theother party should do for the use and benefit of the public service'so as tobring that act within the meaning of the words- “ for and on account ofthe public service”. I find that the passages and the cases therein re-ferred to deal only with contracts under which goods, wares, merchandise,and commodities are supplied without any pointed reference to the factthat it is such type of contract and such type only that can be said to be“for or on account of the public service”. There is however sufficient- material there to show that contracts made with Commissioners of theTreasury or the Navy or the victualling officers or generally on accountof the public service disqualify the other party from being elected orsitting which would rather indicate that contracts made with the head ofa Government department for the benefit of the public service are rightlymade with the recognized authority.
Assuming that Mr. Weerasooria is right in maintaining that thecontract contemplated necessarily involves the doing of an act for theuse and benefit of the public service, I am of opinion that the letting of ahouse to the head of a department of the public service and maintainingit in a habitable condition during the period of occupation amounts tothe doing of an act for the use and benefit pf the public service. Thisidea is sustained by my brother Akbar J. in his judgment in Cooray v.De Soysa He there says, “ Any contract for or on account of the-public'service would include any contract which will help or further the object*for which this public service was established ”. Surely the letting out ofthe premises in question in order that it might be used as an office for theMedical Officer of Health, Badulla, is a contract which will help andfurther the object for which the public service was established. More-over my brother in differentiating between contracts that could not besaid to be “ for or on account of the public service ” (such as a contract ofconveyance entered into by a passenger by buying a railway ticket or acontract for the establishment of a telephone in a person’s house) andcontracts which can be rightly said to be “for or on account of the-publicservice ” instances the following as coming under the latter head, viz., acontract by which on payment of a rent a person allows the telephoneauthorities to fix an erection in his premises for the convenience of thetelephone authorities. If my brother is right in the instance he has given(and my opinion is that he is right) is there any difference between thatinstance and the case under review? In -the case instanced by my
i 5 C. L. W. Ill at p. 118. .
KOCH J.—Somasunderam v. Kotalawala.
brother the premises were let under contract to the telephone authoritiesto fix an erection for the convenience of the telephone authorities. Inthe case under review the premises were let under contract to the Medicalauthorities to fix an office for the convenience of the Medical authorities.
I am therefore of opinion that the contract in question was entered intoby the respondent “ for or on account of the public service ”.
The next point raised by Counsel for the respondent is that under theArticle setting forth the disqualification, viz., 9 (d) of the Ceylon (StateCouncil) Order in Council, 1931, a contract of tenancy cannot be includedunder the words “ any contract or agreement or commission ”. Hisargument is that the word “ commission ” controls the words “ contractor agreement ” and that the words contract and agreement must be readmerely as explanatory of the words “ commission ”. He continues theargument by insisting that the one word to be considered in 9 (d) is theword “ commission ”, and that before the petitioner can succeed, he mustbring this contract of tenancy within the word “ commission ”. Hecontends that the petitioner has failed to do so because the word “com-mission ” in this context means a trust or authority and as tenancy is nota trust or authority it cannot be brought within the legal meaning of theword “ commission ”. I may be disposed to agree • that the word“ commission ” implies what Mr. Weerasooria says it does but I find thegreatest difficulty in subscribing to his argument that the word “com-mission” is the only word to be considered in 9 (d) and that the words“ contract or agreement ” haye been inserted as purely explanatory ofthe word “ commission ”. In the first place the words “ contract oragreement ” precede the words “ or commission ” and to my mind thisorder of arrangement would rather suggest that if the question of. oneword controlling another can be introduced at all the earlier word wouldcontrol the later and not the later, word the earlier. The words as theyappear are “ any contract or agreement or commission made or enteredinto It will be seen that there is the disjunctive “ or ” between eachof these words “ contract “ agreement ”, or “ commission ” which tomy mind in connection with the rest of the context has been advisedlyinserted by the draftsman with the object of setting out these words asdefinite and separate words each to be taken and read by itself and legaleffect given to each on that footing. I have given full consideration tothe very ingenious argument of Mr. Weerasooria and the cases he hascited on this point. But I regret that I am firmly convinced that hisargument cannot prevail. To uphold it will be to drive a coach and fourthrough the express words “ contract or agreement ”, for, I cannot bringmy mind to agree that these words were inserted purely for the purpose ofexplaining the word “ commission ” which has a definite legal meaningand does not require any assistance from words such as contract or agree-ment to make one aware of what that meaning is. On the contrary myopinion is that if the words contract or . agreement are to be considered asbeing merely explanatory I fear that far from the meaning of the word“commission” being thereby clarified, the effect would be to mystify it.Nothing could have been easier for the draftsman if he intended to limit -the holding or the enjoying in whole or in part to “ commission ” only
KOCH J.—Somasunderam v. Kotalawala.
to use the word “ commission ” only without any reference to contractor agreement and to explicitly define that word in Article 4 where anumber of terms and words are defined.
It is hardly likely that the proviso “ nothing herein contained shallextend to any pension ” would have been inserted in this connection wereit not for the fact that otherwise it might be reasonably construed thata person enjoying a pension does so as the result of a contract express orimplied. This proviso would not have been necessitated if the identityof the word “ contract ” was lost in the word “ commission ”.
The next argument of respondent’s Counsel was that assuming thatcontract agreement and commission were each differently and seperatelycontemplated under Article 9 (d) it was not intended that the words“ contract ” or “ agreement ” should include a contract of tenancy. Hispoint was that the words contract or agreement referred to in this Articleonly contemplated contracts to supply. He says that the words in ourenactment have been chipped off from section 1 of 22 George III, c. 45and that being so the implications of that section only should be adoptedin our section. The section in the English Statute runs as follows : —
•* Any person …. who shall undertake, exercise, hold orenjoy in the whole or in part any contract, agreement or commissionmade or entered into with under or from the Commissioners of HisMajesty’s Treasury or of the Navy or of the Victualling Olfficer or withthe Master Generator the Board of Ordinance or with any one or moreof such persons whatsoever for or on account of the public service. ”
Mr. Weerasooria contends that the words “or with any other personor persons whatsoever ” must be read eiusdem generis with the personsspecified previously in that act and as the contracts contemplated withsuch persons were limited by decisions of Court to supplies only, the samelimitations should apply to our Article. In this connection I am notprepared to say that it is clear that the words “ with any person or personswhatsoever ” are eiusdem generis of the persons previously mentioned. Isay so because the statute 21 George V. C. 13 which became law on March27, 1931, was passed to remove any such doubt.
I do not see that the cases cited by him on this point actually limit suchcontracts to those for supplies only, although it is true that every one ofthe cases he refers to deals with contracts for supplies. The principle ofeiusdem generis which it is argued does apply to the English Statutecannot apply to our statute because there are no such “ preceding ’’persons specified and there is therefore no room for the introduction ofthis principle into our statute. I have only to ascertain therefore whetherthe word contract appearing in our Article read in connection with thecontext is wide enough to include a contract of tenancy. The words are“ any contract ” which must mean any contract whatsoever in the absenceof any words limiting the range of such contracts, and there does. notappear any such limiting word in our Article.
I am indebted to Mr. Schokman, Crown Counsel, who appeared asamicus curaie for a very helpful authority. He drew my attentionamicus curiae for a very helpful authority. He drew my attentionto Courts (Emergency Powers) Act, 1917, c. 25, s. 9 (1)(7 & 8
George V.). This statute was expressly passed during the war to prevent
' KOCH J.—Somasunderam v. Kotalawala.
any prejudice being created against a sitting member of the House ofCommons who by reason of the emergencies of the Great War may havebeen required to supply property or permit the use thereof by a Govern-ment department for purposes connected with the war. This statute insection 9 (1) expressly set forth that none of the provisions of the Houseof Commons Disqualification Act of 1782 (which has been previouslyreferred to in this judgment as 22 George III.) shall be construed so as toextend to a contract or agreement entered into during the Great War asto the price of compensation to be paid for any property so requisitionedor taken. To my mind it is perfectly clear that the relevant provisionin that statute refers to any property of whatsoever description movableor immovable. If 22 George 111. c. 45, s. 1, was confined only to commo-dities or supplies, there would have been no necessity for that provisionto have been couched in such general terms as to include immovableproperty. After careful consideration therefore of opinion that thethe words “ any contract ” are wide enough to include a contract oftenancy.
Mr. Weerasooria next very strongly pressed his contention that thetenancy of “ Bridge. View ” for and during the month of March, 1936, was,.from a contractual* point of view and so far as his client the respondentwas concerned, an executed contract. That what only remained for hisclient to do was to receive the rent which fell due at the end of that monthand that this amounted only to a right to payment and did not involveany obligation whatsoever on his part towards his tenant; in short thatthe respondent was purely a creditor and nothing more. Proceeding onthis footing Mr. Weerasooria cited in support the Manchester ElectionPetition case of Royse v. Birley (1869) already referred to. He relied onthe decision there that the words holding or enjoying a contract made foror on account of the public service within the meaning of 22 George 111.c. 45, s. 1 (previously referred to) required that such contract must at thetime of the election be an executory one ; that therefore under a contractfor the supply of goods where the goods had been delivered to and accepted'by the Government before the election and at the time of the electionnothing remained to be done under the contract except for the Govern-ment to pay the price which previously had become ascertained and waspayable, the contractor in that case was held not to be disqualified inas much as at the time of the election the contract was executed. He alsocited the case of Tranton and Astor (1917) 33 Times Law Reports 383.This case concerned the insertion of an advertisement in the newspapercalled the Observer, the proprietor of which was Major Astor.. This wasdone as the result of an alleged order given by a Government departmentfor the insertion of a Government advertisement. Major Astor was atthe time sitting and voting in the Commons House of Parliament and itwas sought by Tranton to recover a large sum by way of penalty againstthe defendant for having so sat and voted when he was disqualified fromdoing so. Justice Low who decided that case was of opinion that theadvertisement was inserted., as the result only of a Government order andthat there was ho evidence that the order was ever accepted except byreason of the insertion. . He was therefore of opinion that the momentthe advertisement was inserted the contract was executed and that all
KOCH J.—Somasunderam v, Kotalawala.
that remained to be done was for the defendant to receive payment. Inthese circumstances he was of opinion that the sitting or voting whichwas proved to have taken place between the insertion and the actualpayment was not penalized under the Act. In the course of his judgmenthe dealt with the case of Royse v. Birley (supra) and expressed his approvalof the decision in that case. Justice Low was further of opinion thatthe Act was not intended to include casual or transient transactionsalthough they may be the subject of contracts, and that the kindof contract intended was of a continuing and lasting character andwould not include for instance ordinary sales or purchases across the,counter.
Another case cited by Mr. Weerasooria was Thompson v. Pearce where it was held that every dealer who had a" relation to the publicsendee however remote is not disqualified from sitting in Parliament.In this case the dealer had supplied articles of clothing specified in anorder issued to him by a Colonel for the use of his regiment and the factsshowed that the order had been executed and that the Colonel wasdebited in the defendant’s books to the amount of the order. All thatremained under the contract to be done was payment. There can bevery little doubt that where a contract has been wholly performed by theparties to it and all that remains is a matter of payment the contract canrightly be said not-to be executory but actually executed and would notbe such as is contemplated by the statute. The same principle, I admit,would apply to our Article 9 (d). The difficulty however in the way ofMr. Weerasooria is that the contract of tenancy in the present case hadat no period of time prior to March 31, 1936, been executed. For, atenancy contract unlike a contract for the sale of goods is a contract of acontinuing nature until the final day of its determination and during theperiod of its continuance involves several mutual rights and obligationsof a landlord towards his tenant and of a tenant towards his landlord.These mutual rights and obligations ate well known. The landlord hasto protect the tenant in his occupation of the building and to see that hehas peaceable possession of it as long as the tenancy continues. He hasfurther to keep the premises in a habitable State of repair so that the tenantmay have the use of them for the purposes for which they .were, let to him.He would also be responsible to pay compensation to the tenant for anyloss caused to the tenant through defects in the property leased and alsoan obligation on the termination of the tenancy to permit the tenant toremove movable property brought in by him and also in certain cases topay compensation for improvements effected by the tenant. On theother hand the tenant is under obligation to use the premises' only in theway that it was intended he should use it when the contract was enteredinto. He should also while occupying cause no damage to the premises.He should further effect such minor repairs as would be necessary fromtime to time and as were not intended that the landlord should effect andshould further pay the rent agreed upon as it fell due. These mutualrights and obligations undoubtedly existed through the month of Marchand up to the end of the last day of that month. I therefore cannot seehow it can be seriously argued that all that remained to be done during
% (1829) Broderip and Bingham's Reports, vol. I, p. 25.
KOCH J.—Somasunderam v. Kotalawala.
the month of March was, so far as the landlord was concerned, to receivethe rent and thus bring this contract within the principle of the judgmentsjust dealt with.
I may further say that the respondent’s Counsel argued that underArticle 74 (e) of the Ceylon (State Council Elections) Order in Council of1931, the time of his election meant the time when the Retuming=Officerunder Article 47 caused the name of the member elected to be publishedin the Government Gazette and not the time when he was either nominatedor declared duly elected by the Returning Officer. I regret I cannotagree with this contention. Firstly, because this very Article states that“ the Returning Officer shall without delay report the result of theelection to the Legal Secretary ”. The “ result of the election ” can onlybe reported when the election is over. Secondly because the date ofpublication of the result of an act cannot reasonably be considered to bethe date of the act unless there is special provision to that effect and thereis no such provision here. Thirdly in Article 31 it is stated that if onlyone candidate stands nominated on nomination day the Returning Officershall declare that candidate elected and report the result to the LegalSecretary. This would show that the election was over in those circum-stances on nomination day. Finally in Article 32 (1) there is provisionthat if more than one candidate stands nominated on that day theReturning Officer “ shall forthwith adjourn the election ” to enable a pollto be taken. This provision can only reasonably mean that the electionwhich commenced on nomination day will be concluded when the pollhas been taken. I am therefore of opinion that the time of his electionmay be either nomination day or election day or any time between thesetwo days but not by any means the day of publication in the GovernmentGazette of the result of the election.
Moreover even if the date of publication in the Government Gazette,namely, March 10, 1936, is regarded as the time of the respondent’selection I fail to see how this can help the respondent as the contract oftenancy in question was existing at this date and continued to exist forthree weeks later.
Mr. Weerasooria relying on Warrington’s case (1869) 1 O’m & H 42and Anson v. Dyott (1869) and the judgment of Drieberg J. in Peris v.Saravanamuttu pressed upon me that I should view this trial not as acivil proceeding but rather in the character of a criminal or quasi-criminalproceeding and that therefore before upsetting this election I ought to besatisfied beyond all reasonable doubt that the election is void. I thinkMr. Weerasooria was right and I have therefore adopted the principle setout in these judgments in coming to a decision as to whether the electionis void or not.
I have no doubt whatsoever that for the reasons I have given theelection of the respondent is void on the ground that he was disqualifiedat the time of his election under Article 9 (d) of Ceylon (State Council)Order in Council, 1931, and that the prayer of the petitioner shouldsucceed. The petitioner will be entitled to the costs of this trial.
Election declared void.
i $3 N. L. B. 229.
SOMASUNDERAM v. KOTALAWALA