The Municipal Commissioner v. Per era.
1940Present: Howard C.J.
THE MUNICIPAL COMMISSIONER v. PERERA.
658—M. M. C. Colombo, 60.
Municipal Council (Constitution) Ordinance, s. 108 (2) (Cap. 194)—Qualifica-tion of voter—Residence within limits—Having or tising a sleepingapartment—Question of fact.
A labourer, who sleeps on a mat in the premises of the Labour head-quarters, after office hours, cannot be regarded as having or using asleeping apartment in the building so as to constitute residence withinthe meaning of -section 108 (2) of the Municipal Council (Constitution)Ordinance.
It is open to the Municipal Magistrate to consider the grounds ofopposition of those who opposed the application under section 23 (6).
A. PPEAL from an order of the Municipal Magistrate of Colombo.
Labourers who work in the Harbour and who belong to the LabourParty were in the habit of sleeping at the Labour Headquarters at CanalRow, Fort. They slept on mats in the open verandahs and office premisesat night after the office work was over. They claimed that they wereresidents in Fort and entitled to a vote. The sitting member opposedthe application and called himself an objector. He asserted they werenot residents and not entitled to a vote in the Fort Ward. The MunicipalMagistrate upheld the objection.
V. Ranawake (with him Dodwell Goonewardena), for appellant.—The sitting member is not an objector, and he has no status in this pro-ceeding. Section 23, sub-section (2) , defines an objector. He is merely anopposer. Section 24, sub-section (1), gives a right of appeal only to anobjector or an opposer.
Section 108 (2) of the Ordinance defines residence: “ A person isresident if from time to time he uses a sleeping apartment in anybuilding ”. Absence from it sometimes provided there is animusrevertendi does not deprive the privileges of residence. A man may haveseveral residences. In Fernando v. Grero a person may have aresidence for the specific purpose of qualifying for a vote.
H. V. Perera, K.C. (with him M. Tiruchelvam), for respondent.—Undersection 23 (5) (b) any person may oppose a person from getting a vote.Such persons are called opposers. Under section 23 (6) the MunicipalMagistrate is empowered to adjudicate on the application. It would bedangerous to allow artificial ideas of residence to apply to businessareas like Fort. These are questions of fact and not of law. The caseFernando v. Grero (supra) could be distinguished. There a doctorhad two residences, one his dispensary and the other his home, and hewas entitled to have a vote in the ward in which he had his dispensary.
Cur. adv. vv.lt.
1 40 N. L. R. 275.
HOWARD C.J.—The Municipal Commissioner v. Perera.
September 2, 1940. Howard C.J.—
This is an appeal under section 24 (1) of the Colombo Municipal Council(Constitution) Ordinance, Chapter 194, from a decision of the MunicipalMagistrate refusing to put the appellant’s name on the electoral roll. Apreliminary objection was taken by Mr. H. V. Perera that no appeal layinasmuch as an appeal to the Supreme Court can only be made on aquestion of law involved in the adjudication of the Municipal Magistrate.He argued that this was an appeal on a question of fact only.
Before the Municipal Magistrate could place the name of the appellanton the electoral roll he had to be satisfied by the appellant that the latterwas in receipt of a monthly income of Rs. 15 and also was resident withinthe limits of the particular ward of the Municipality and had for a conti-nuous period of at least six months from a period of eighteen monthsimmediately prior to the said date resided within the limits of this wardof the Municipality. A definition of “ residence ” is given in section108 (2) of the Ordinance. This sub-section provides that a personshall be deemed to reside in nr to be a resident of any place if he hasand from time to time used a sleeping apartment in any building therein.In my opinion it was a question of fact for the Municipal Magistrateto decide as to whether the appellant was resident within this particularward of the Municipality. It could have been a question of law if theMunicipal Magistrate had given some definition to the word “ residence ”which was not warranted by law, but I cannot find anywhere in thejudgment that he has given the word “ residence ” such an unwarranteddefinition. Before he could place the appellant on the roll of electorshe had to be satisfied that the latter had a sleeping apartment in a build-ing in the ward. He has carefully considered the evidence of such asleeping apartment and has come to the conclusion for the reasons thathe has given, that the appellant was not resident within the limits of theparticular ward of the Municipality. Quite apart as to whether this is aquestion of law or a question of fact, I have come to the conclusionthat he was right in his decision.
A further objection was taken by Counsel for the appellant to thedecision of the Municipal Magistrate on the ground that two personswho objected to the name of the appllant being placed on the electoralroll had no status. They were described in the proceedings as “ objectors ”but it is obvious that they were not “ objectors ”, but persons whoopposed, under section 23 (5) (b) and it was open to the Municipal Magis-trate to consider the grounds on which they opposed the applicationunder section 23 (6). Section 24 which provides for the appeal to theSupreme Court does not contemplate their appearing in the SupremeCourt as respondents. In these circumstances, although, they havebeen made respondents to this appeal, the objection to their appearanceand raising opposition before the Municipal Magistrate is immaterial.
For the reasons I have given, the appeal is dismissed. The 1strespondent is entitled to his costs of the appeal.
THE MUNICIPAL COMMISSIONER v. PERERA