122-NLR-NLR-V-53-THOMAS-Petitioner-and-WANIGASEKERA-Respondent.pdf
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KOSE C.J.—Christie t>. Mahomed Bhai
1981Present : de Silva J.
THOMAS, Petitioner, and WANIGASELKERA, Respondent
S. C. 932—Appeal under Local Authorities Elections Ordinance
Local Authorities Elections Ordinance, No. S3 of 1946—Sections 7 and 21—Decisionof Elections Officer—Need not state reasons—Meaning' of “ residence ”.
The Local Authorities Elections Ordinance does not require the ElectionsOfficer to give reasons for his decision on an; claim or objection relating to theelectoral listB of the wards of any area.
The " residence ” contemplated in Section 7 (1) of the Ordinance can beeither actual or constructive.
DK SILVA J.—Thomas v. Wanigasekera
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A.PPKAL from a decision of theAuthorities Elections Ordinance.
Elections Officer under the Local
H. V. Perera, K.C., with N. E. Weerasooria, K.C., and H. W. Jaye-wardene, for the petitioner.
S. Nadesan, with C. Manohara, for the respondent.
Cur. adv. vult.
May 11, 1951. de Silva J.—
This is an appeal from the decision of the Elections Officer, on an objec-tion taken by the appellant to the inclusion of the respondent’s name inthe electoral list for the Urban Council of Talawakele, Lindula.
An objection is taken to the appeal being entertained on the ground thatno appeal lies inasmuch as only questions of fact are involved and notquestions of law, in the decisions of the Elections Officer. The appealis preferred under the provisions of section 21 of Ordinance No. 53 of1946 (Local Authorities Elections). Section 21 (1) is as follows: —" If any claimant or objector or person in regard to whom an objectionhas been made is dissatisfied with the decision of any Elections Officer onany claim or objection, relating to the electoral lists of the wardsof any electoral area, he may, not later than ten days from the date ofsuch decision, appeal therefrom to the Supreme Court on any questionof law involved in such decision, but not on any other grounds.”
The question that was raised and decided by the Elections Officerwas whether or not the respondent had the requisite residential qualificationto have his name entered in the electoral list for this Urban Councilarea.
Section 7 of the said Ordinance lays down the qualification necessaryfor a parson to be included in the electoral list. Section 7 (1) (a) providesthat a person shall be entitled to have his name entered in the list ifsuch person on that date—(a) is resident within the limits of the wardto which the list relates and has been resident within the limits of thator any other ward of the area for a continuous period of at least sixmonths in the period of eighteen months immediately preceding thatdate, being either. .;., Ac.
The objector who is the appellant contended that the respondentwas not resident within the area as contemplated in the said section.Sections 18, 19 and 20 prescribe the procedure to be followedby the Elections Officer in the disposal of claims to have a person's nameentered in the list, and, in the disposal of objections made to the inclusionof such person in the list, &c. It is the duty of the Elections Officer todecide each claim or objection after such summary inquiry as he may deemnecessary.
The Elections Officer held the summary inquiry into the objectionsmade by the appellant in the presence of the objector and the respondent.Witnesses gave evidence besides the appellant and the respondent.He made his decision disallowing the objection. It is from that orderthat this appeal is taken.
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DE SILVA J.—Thomas o. Wanigasekara
It is argued by learned Counsel for the appellant that questions oflaw are involved in this decision and that an appeal lies. He submitsthat in this matter questions of law are involved in addition to factsin the determination of the elements constituting residence and, as the-.Elections Officer has misdirected himself in the application of the prin-ciples applicable, an appeal lies. He further contends that the ElectionsOfficer has not given his reasons for the decision he made.
Dias J. in Francis de Silva v. Wijenathan 1 has observed thus: —“ The word ' decision ’ as used in the Ordinance has not been defined.Stroud points out that ‘ decision ’ is a popular and not a technical term,and means little more than a concluded opinion. I would hold that the.word ‘ .decision ’ as used in section 21 means the determination of orJbhe ..verdict, on the questions at issue raised at the summary inquirybefore the Elections Officer, and which he has reached after consideringthe evidence and the arguments before him ’ ’.
Sonlft-cthe case under consideration the Elections Officer gave no reasonsfor– his decision. His decision conveyed to the parties immediately:after the inquiry is “ I disallow the objection ”. The Ordinance does notanywhpre require the Elections Officer to give reasons on which his decisionis bjased.
j Iatherefore hold that the Ordinance does not require the Elections Officer«to tgive^-reasons fpr his decision.
' The next 'question to be considered is whether an appeal lies from the'decision of the’ Elections Officer. I hold that an appeal lies from the
decision inasmuch as questions of law are involved in it, namely, what- eShsti tutes‘in-lawresidence ”.
~ Diak J.' in' Francis de Silva v. Wijenathan 1 has followed Soysa v.Cetera. 2 And Ford v. Drew 3. The principles laid down in these two-cases have been approved and followed by Dias J. who has observedthus—“ The ‘ residence ’ contemplated in Section 7 (1) can be eitheractuai or constructive/ – In order to constitute constructive residence two-’-elements must co-exist,1 viz., (a) intention to reside at a particulardiouse^br place,–and (b) unfettered power or ability at one’s own will andpleasure,'without committing a breach of any legal obligation, to go to that'house Or place and*take up residence there at any time ”.
The* record of the “proceedings taken by the Elections Officer rhas beenforwarded to this. Court, and I am of opinion that the Elections Officerlias hot'misdirected himself in the applications of the legal principles tothe facts‘ proved in the case.
'- •'-O'-■
The appeal therefore fails.'
The appeal ih dismissed with costs".
Appeal dismissed.
'A&94SF&49.* (1921) 22 N. L. B. 464.
» (1879) 49 L. J. G. P.(NJS.) 172