W. A. SUNDARA BANDA, Petitioner, and A. G. D. D. PATHIRANA, Respondent

023-NLR-NLR-V-73-W.-A.-SUNDARA-BANDA-Petitioner-and-A.-G.-D.-D.-PATHIRANA-Respondent.pdf


106
Sundara Banda v. PalhiranU
1970 Present : Siva Supramanlam, J., and Samerawickrame, J.W. A. SUNDARA BANDA, Petitioner, and A. G. D. D. PATHIRANA,>Respondent
S. C. 69/1969—Application for a Mandate in the nature of a Writ of QuoWarranto under s. 42 of the Courts Ordinance
Village Council—Qualification for membership—“ Ordinarily resident ”—Election of acandidate who is not “ ordinarily resident ”—Whether such election can bedeclared void—Quo "warranto—Local Authorities Elections Ordinance (Cap. 262as amended by Acts Nos. 9 of 1963 and IS of 1965), ss. 8, 9, 10, 11, 24', 28 (1),28 (2), 32, 65,69.
The expression “ ordinarily resident ” in section 8 (6) of the Local AuthoritiesElections Ordinance, as amended by Act Ho. 15 of 1965, should be given itsusual and ordinary meaning. It connotes residence in a place with some dogreoof continuity and apart from accidental or temporary absences.
Where a candidate who is not “ ordinarily resident ” within the meaning ofsection 8 of the Local Authorities Elections Ordinance has been elected as amember for any ward of a local authority after his nomination papor wasaccepted by a returning officer, there is no provision in the Ordinance for' thoquestion of his qualification under section 8 to be canvassed thereafter, oxccptperhaps when there are circumstances which enable the validity of the electionto be attacked under section C9.
SIVA SUPRAMAJIIAM, J.—Sundara Banda v. Pathirana
101
Application for a writ of quo tvarranlo.
J. W. Subasinghe, with J. F. P. Deraniyagala, for the petitionex'.-
Felix R. Dias Bandaranaike, with Dharmasiri Senanayake, for therespondent.
Car. adv. t «/t.
February' 25, 1970. Siva Suframaxiam, J.—
This an application by the petitioner for the issue of a mandate in thenature of a writ of quo wananto calling upon the respondent to showcause by what authority he has assumed the office of a member for wardNo. 14, Pcnthcnigoda, in the Village Council ofNarammalaand foradeclaration that the election of the respondent as member for the aforesaidward is void. It is common ground that at a general election of membersof the Village Council of Narammala held under the provisions of theLocal Authorities Elections Ordinance (Cap. 2G2 as amended by ActsNos. 9 of 1963 and 15 of 1965, hereinafter referred to as “ the Ordinance”)held on Gth December 190S, the respondent received the greatest number ofvotes for ward 14 (Penthenigoda) and was declared elected as the memberfor the said ward in terms of S. 65 of the said Ordinance. He assumedoffice as a member of the said Council at a meeting held on 13th January1969 and was elected Chairman of the said Council and has continued tofunction in that capacity up to date.
The ground on which the present application is made is that therespondent was not qualified for election as a member for the said wardunder S. S (b) of the Ordinance in that, on the relevant date, namely,the 1st day of Juno 1967, he was not “ ordinarily resident ” in the saidward or in any other ward of the electoral area of the Narammala VillagoCouncil. It is averred in the affidavit filed by the petitioner (and thisis not denied in the counter-affidavit filed by the respondent) that therespondent’s name did not appear in the electoral lists of the NarammalaVillage Council in force at the said general election.
In 1960 a part of the electoral area of the then existing NarammalaVillage Council was separated off and the Narammala Town Councilwas established as the local authority in respect of that area. Therespondent was at that time the Chairman of the Narammala VillagoCouncil and was residing at No. 345, Kuliyapitiya Road which wassituated within the ward of which he was the member of the Council.On the establishment of the new Town Council, the area where he wasresiding fell whithin the electoral area of the Town Council. The respon-dent’s name was included in the electoral lists of the Town Council andat the first general election of members of the Town Council he was acandidate for Ward No. 2 but was defeated on a. contest. Therespondent still continues to reside at No. 345, Kuliyapitiya Road.
JH3C0 (6/70)
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SIVA SUPRAMAXIA.M, J.—Sundara Banda v. Pa'.hirana
Iii paragraphs 4 and 5 of his affidavit the respondent has averred asfollows :—
“ 4. For the purpose of protecting and safeguarding my village
Council scat of PcnthinigodaI decided to establish . an
ordinary residence in Penthcnigoda village and for this purpose Imade arrangements with Kiri Banda Abeyratne of Penthcnigoda whois my wife’s cousin brother to set apart a building having two roomsfor my exclusive use as and when required bv me from and after themonth of December 1965. I have been using one of these rooms asan office and on a few days in each year I have occupied the otherroom and sfajed the night there, sometimes accompanied by my wifeand had our meals with my wife’s cousin brother, for the purpose ofestablishing an ordinary residence within Penthenigoda village inthe Narammala Village Council area.
5. I admit that my wife and I dwell for the larger part of the yearat our house at No. 345, ICuliyapitiya Road. ”
The respondent’s contention is that, on the aforesaid facts, he had two“ordinary residences " and he was therefore qualified under S. S (b) ofthe Ordinance to be elected as a member of the Village Council. Thefirst question for determination is whether, on the facts stated above,the respondent can be said to have been “ ordinarily resident ” in thePenthenigoda ward on the relevant date.
The expression " ordinarily resident ” has been the subject of Judicialinterpretation. In the case of Gout v. Cimitian1 the Privy Councilin considering the proper interpretation to be placed on the said. expression contained in a provision of an Order in Council whichdeclared that “ any Ottoman subject who was ordinarily residentand actually present in Cyprus on November 5, 1914 ” should be deemed 'to have become a British subject, said :“ The appellants contended
that in construing the Order we ought to apply the same considerationas in determining the case of domicil, but their Lordships are of opinionthat the words “ ordinarily resident ” cannot bo interpreted by suchconsiderations and must be given their usual and ordinary meaning ”.In S. 8 (6) of the Ordinance too the expression “ ordinarily resident ”
Is not used in any technical or special sense and should therefore begiven its usual and ordinary meaning. The question of “ ordinaryresidence ” is primarily one of fact and the “ intention ” or “ motive ”with which a person takes up residence is notr material. The word“ reside ” is defined in the Oxford English Dictionary as meaning “ todwell permanently or for a considerable time, to have one’s settled orusual abode, to live in or at a particular place In Levene v. InlandRevenue Commissioners 2 Viscount Cave L. C. said : “ The expression
* ordinary residence ’connotes residence in a place with some
degree of continuity and apart from accidental or temporary absences. ”
./ » (1922) 1 A. C. 105.. -*(1928) A. G. 217.
SIVA S U PRAMANIAM, J.—Bundaro Banda v. Palhirana
10S
I am unable to agree that on the facts averred by the respondent hewas *' ordinarily resident ” in the Penthenigoda village on the relevantdate. He was accordingly not qualified under S. 8 for election as amember for Ward 14—Penthenigoda.
The next question that rises is whether the absenco of qualificationunder S. S on the part of the respondent entitles the petitioner to awrit of quo warranto to have the election declared null and void. Toanswer this question, it is necessary to consider the scheme of theOrdinance.
S. 9 sets out certain disqualifications for membership and providesthat a person subject to those disqualifications is not qualified to boelected or to sit or to vote as a member of any local authority. S. 10 (1)provides that where any member is disqualified under any of the provisionsof S. 9 from sitting or voting as a member, hi6 scat shall ipso facto becomevacant. Under S. 10 (2) provision is made for the filling up of thevacant seat as if such member had resigned his seat. Under S. 11 apenalty attaches to a person who acts in the office of a member after hisseat has become vacant under Si 10 . It is significant that the absenceof qualification under S. 8 is not treated as a disqualification under S. 9disentitling a member from sitting or from voting. Nor does S. 10 (1)apply to a case where a person is not qualified under S. 8 to be electedas a member. There is no other provision in the Ordinance in terms ofwhich the seat of a person who is not qualified to be elected under S. 8ipso facto becomes vacant. The Legislature does not therefore appearto have regarded nonqualification under S. 8 as a ground on which anelection should be declared void or the seat rendered vacant ipso facto.
Under S. 24 " every general election of the members….. . shall beheld in the manner hereinafter provided by the Ordinance ”. UnderS. 28 (1) it is only a person who is qualified under the Ordinance for.election as a member that may be nominated as a candidate for election.
A nomination paper tendered under S. 28 (2), in order to comply withthe provisions of the Ordinance, should therefore nominate one who isqualified under the Ordinance for. election as a member. Under S. 32 (1)objection may be lodged against a nomination paper of a candidate forelection if, inter alia, the nomination paper does not comply with theprovisions of the Ordinance. Under S. 32 (2) “ no objection shall beentertained bj' the returning officer unless it is lodged during tho hour ofnomination and the half hour, immediately succeeding the hour ofnomination.on nomination day”. Under 8. 32 (5) the decision of thereturning officer on an objection is final and conclusive. Once an orderhas been made by a-returning officer, after hearing any objections,accepting the nomination paper of a candidate, there is no provision inthe Ordinance for the question of the qualification of the candidate
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SIVA SUPRAMAXIAM, J.—Sundara Banda v. Path i ran a
under S. 8 to be canvassed thereafter, except perhaps when there arecircumstances which enable the validity of the election to bo attackedunder S. G9.
S. 69 reads as follows :—“ No election 6hall be invalid by reason ofany failure to comply with the provisions of this Ordinance relating toelections if it appears that the election was conducted in accordance .with the principles laid down in such provisions, and that such failuredid not affect the result of the election
As was stated by His Lordship the Chief Justice in the DivisionalBench judgment in Martin Perera v. Madadombe 1 section 69 implies that“ if there is in the case of any election a failure to comply with any ofthe provisions of this Ordinance relating to elections and if it appearsthat the election was not conducted in accordance with the principleslaid down in such provisions, and if it appears that thereby the resultof the election was affected, the election shall be invalid
His Lordship further stated : “ As for a candidate, it may in a limitedsense be proper to say that he participates in the conduct of an election.The term election in the present, context means ‘ choosing by vote ’,and the conducting of an election is accordingly the conducting of theprocess by which electors are able to cast their votes. It is a necessarystep in this process that persons should offer themselves for the electorsto make their choice. To this extent the submission of a nominationpaper by a candidate may be regarded as part of the conduct of theelection ”.
If, therefore, acceptance of the* nomination paper of a candidate whowas not qualified under S. 8 is regarded as a failure to comply with theprovisions of the Ordinance, such failure can invalidate the electiononly if (1) such election was not conducted in accordance with the princi-ples laid down in such provisions, and (2) it affected the result of theelection. In tho instant case, it was not the contention of the petitionereither that the election was not conducted in accordance with theprinciples laid down in the provisions of the Ordinance or that the resultof the election was affected by the failure to comply with those provisions.Indeed, the contention of learned Counsel for the petitioner- was thatS. 69 had no application at all to the facte of this case.
For the foregoing reasons I am of opinion that a writ of quo warrantodoes not h'e in this case and I dismiss the application with costs fixedat Rs. 105.
Samebawickba me, J.—I agree.
Application dismissed.
*11969} 73 V. R. 25.