SOERTSZ J.—Wijeyratne and Silva.
1943Present: Soertsz J.
WIJBYBATNE, Appellant, and SILVA et al, Respondents.
758—M. M. G. Colombo.
Colombo MunicipalCouncil (Constitution)Ordinance (Cap. 194)-—Preparation
of Voters’ Lists—Residence in ward at date of preparation and revision—Crucial date—s. 14(2) and (6).
Where, in the course of preparation and revision of voters’ lists underthe Municipal Council (Constitution) Ordinance a resident’s name comesup to be entered on a separate list for a ward the date of entry shall bethe date of preparation or revision of the list vis-d-vis that resident,within the meaning of sub-section (6) of section 14 of the Ordinance.
A PPEAL from an order of the Municipal Magistrate of Colombo.
N. Nadarajah, K.G. (with him E. B. Wihremanayake and J. L.
Fernando), for appellant.
V. Perera, K.C. (with him U. A. Jay asunder e and P. Malalgoda)r
for objector, respondents.
October 6, 1943. Soertsz J.-—
This is an appeal preferred under section 24 of the Colombo Municipal
Council (Constitution) Ordinance (Cap. 194) against an order made by th&
SOERTSZ J.—Wijeyratne and Silva.
Municipal Magistrate under section 23(6) on objection taken by the-
respondent under section 23 (2) expunging the name of the appellantfrom the separate list which the Commissioner acting in compliance with-section 21 (d) had caused to be made for the Ward of Modera.
The respondent’s objection to the appearance of the appellant’s name-on that list was advanced inter alia on the ground that, in order to enable-a voter to have his name entered on the list for any ward, the law requiresthat he should be resident in that Ward on May 1 of the relevant yearand the respondent alleged that in fact the appellant was not so resident-although he claimed to have been. On appeal the appellant’s submissionwas that his residence within the Ward from June 5 as found by theMagistrate was sufficient to justify the appearance of his name on the listfor the Ward.
On the evidence adduced by the parties the Magistrate found that theappellant was not resident in the Modera Ward on May 1 this year and.adopting part of the interpretation which the respondent contended for,he made the order in question now.
For the purpose of examining the cases put forward by the appellantand by the respondent, section 14 and particularly sub-section 14 (2) and14 (6) must be interpreted by reading them with section 21.
Section 14 deals with the qualifications and disqualifications of voters^It provides by sub-section (1) that—
" no person shall be qualified to vote …. unless the name of.such person appears in the new or revised list of persons dulyqualified to vote, certified as hereinafter provided and in forcefor the time being ”.
Sub-section (2) goes on to say—
“ No person shall be entitled to have his name placed on such listin any year as a person duly qualified to vote unless such person on the-date of the commencement of the -preparation or revision as the case may beof such list for that year ”, has the qualifications and is free from thedisqualification enumerated in the subsequent part of that sub-section.
Sub-section (2) paragraph (/) says that—
‘ ‘ except in the case provided for in paragraph (g) (iv) of this sub-section, is resident within the limits of any ward of the Municipalityand has for a continuous period of at least six months in the period ofeighteen months immediately prior to the said date resided within the-limits of any ward of the Municipality.”
It will be observed that in regard to all these qualifications and dis-qualifications their existence or non-existence is determined with;reference to a definite date, namely, the May 1 of the relevant year.That is the date fixed by section 21, sub section (1), paragraph (a) and
which enact that—
“ On the 1st day of May in the year in which a general election is.required, the Commissioner shall commence thee
preparation of the new lists ”.
SOEBTSZ J.—Wijeyratne and Silva.
(6) On the first day of May in every year other than a year in which ageneral election is to be held, the Commissioner shall commencethe revision of the lists. Those provisions are followed byparagraph (c) which says—
“ the said first day of May shall in each case be deemed to be the dateof commencement of the preparation or revision of the list
The purpose of this paragraph appears to be to obviate any case in whichby oversight, inadvertence or neglect the Commissioner does not complywith the requirement of paragraphs (a) and (b) and does not commencethe preparation of the lists on the date appointed in those clauses. Theobject of the Legislature appears clearly to be to secure that there shall beone date with reference to which the question of the qualification ordisqualification of a citizen to be a voter shall be determined.
Once the matter of the right to be a voter has been so determinedthe Legislature goes on to enact that these eligible voters shall beallocated to the different Wards into which the Municipality has beendivided and by sub-section 14 (6) it provides that:
“ the name of any person who in any year is qualified to vote underthe provisions of -this Ordinance shall be entered in the new or revisedlist of persons qualified to vote prepared for the Ward in which thatperson is resident on the date of the preparation or revision as the casemay be of such list for that year ”.
As the words stand they make it quite clear that the Legislature is hereadopting not a fixed artificial date as it does in sub-section 14 (2) for thepurpose of determining qualification or disqualification, but an actualdate which may vary as between Ward and Ward and may even varywithin the same Ward in relation to the residents of that Ward theactual date being “ the date of the preparation or revision as the casemay be of such list for that year This difference between sub-section14 (2) and sub-section 14 (6) in the selection of a crucial date is quiteunderstandable if the different purposes of the two sub-sections are bornein mind.
But it is contended that the words “ on the date of the preparation orrevision ” contemplates a single date and that it is not possible to assignsuch a date to a process whether of preparation or revision which exnecessitate rei must extend over a period and upon that contention it isargued that for those words there should be substituted the words “ onthe date of the commencement of the preparation or revision But,if we did that, we should be legislating and not interpreting. Nor do Iencounter any temptation urgent enough to lure me into such a coursefor the supposed difficulty of assigning a single date to a process such asthis can be surmounted in virtue of the Interpretation Ordinance byreading “ dates of the preparation or revision ” for “ date of preparationor revision ’ ’.
In that way we find that this sub-section provides that in the course ofthe preparation and revision of lists the date on which a resident’s namecomes up to be entered on the separate list for a ward shall be the date ofpreparation or revision vis-a-vis that resident.
DE KBETSEB J.-—Coder and Karunaratne.
For these reasons, I am of the opinion that no case was made out fordepriving the appellant of his right to be a voter in the Modera Ward andE accordingly set aside the order of the Magistrate and direct that theappellant’s name do remain on the list.
In regard to costs, section 25 provides for an order as to the payment ofthe costs of the inquiry. There is no provision in regard to the costs ofappeal. I, therefore, direct that the respondent do pay to the appellantEs. 52.50 as costs of the inquiry. I limit the costs in this way for thereason that the appellant protracted the inquiry unduly by endeavouringto show what was not true in fact—that he was in premises 205, Moderastreet, on the 1st of May.
WIJEYRATNE, Appellant, and SILVA et al., Respondents