062-NLR-NLR-V-65-S.-I.-GUNASEKERA-Petitoner-and-G.-D.-J.-WIJESINGHE-Respondent.pdf
WEERASOOKTYA, S.P.J.—Gunasekera v. Wijesinghe
303
1983Present: Weerasooriya, S.P.J.S. I. GUNASEKERA, Petitioner, and G. D. J. WIJESINGHE,
Respondent
S. C. 191 of 1962—Application for a Writ of Quo Warranto onMr. G. D. J. Wijesinghe, Member of Peliyagoda Urban Council
Local Authorities Elections Ordinance {Gap. 262)—Section 8 (b)—Meaning of word“ resident ”—Quo warranto.
A man’s place of business is not per se his residence also for the purpose ofconferring on him the residential qualification required under seotion 8 (6) ofthe Local Authorities Elections Ordinance for membership of a ward.
.AlPPLICATION for a writ of Quo Warranto to have the electionof the respondent as member for Ward No. 1 of the Urban Councilof Peliyagoda declared null and void.
A. de Silva, for the petitioner.
Prins Gunasekera, with If. T. M. Sivardeen, for the Respondent.
Cur. adv. vuU.
March 5,1963. Weerasoobtya, S.P.J.—
This is an application for a writ of Quo Warranto to have the electionof the respondent as member for Ward No. 1 of the Urban Council ofPeliyagoda at the poll held on the 13th January, 1962, declared null andvoid. Prior to the respondent's election as such he had unsuccessfullycontested the seat for Ward No. 4 of the Wattala-Mabole Urban Councilat the poll held on the 6th January, 1962. Both the Wattala-MaboleUrban Council and the Peliyagoda Urban Council electoral areas arewithin the Parliamentary Electoral District No. 5 (Wattala).
Section 8 of the Local Authorities Elections Ordinance (Cap. 262)sets out the qualifications which a person who is not disqualified undersection 9 must possess in seeking election as a member for any ward ofan electoral area. It is common ground that the respondent is not aperson who is disqualified under section 9, and that the date on whichthe respondent should have possessed the qualifications stipulated inparagraphs (o) and (5) of section 8 is the 24th June, 1959. It is alsocommon ground that on that date he possessed the qualification underparagraph (a) of section 8. The question in issue is whether on thatdate he possessed the qualification under paragraph (6) of that sectionfor election as a member for WardNo. 1 of the Urban Council of Peliyagoda.In terms of paragraph (6), in order to be qualified for election as a memberfor Ward No. 1, it was essential that he should have been, on the 24th
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WEERASOORIYA, S.P.J.—Chmaatketa v. Wijwinghe
June, 1959, resident in that or any other ward of the electoral area of theUrban Council of Peliyagoda. The petitioner’s case is that the respondentwas not so resident.
The respondent admits that on the 24th Jane, 1959, he had a residenceat No. 116/5, Telangapatha Road, in Ward No. 4 of the Wattala-MaboleUrban Council area, where also his wife, children and servants resided. Itwas by virtue of his residence there that be was qualified for election asa member for Ward No, 4 of the Wattala-Mabole Urban Council, atwhich election he was, as stated earlier, unsuccessful According tohis affidavit filed on the 5th July, 1962, he commenced the business of atimber depot at No. 985, Kandy Road (which is within the PeliyagodaUrban Council electoral area) in 1942, and since then be has been residingthere and also at No. 116/5, Telangapatha Road. He described No. 985,Kandy Road, as bis “ business cum residential address
That the respondent carried on business at No. 985, Kandy Road,from 1942 up to about 1948 or 1949 is not disputed. Thereafter, thepetitioner states, the respondent gave up the business and left the place.The respondent’s position is that he carried on the timber business on alarge scale at No. 985, Kandy Road, up to 1952 when his business dwindledto one of very small proportions. But even after 1952, and up to thepresent time, he continued to carry on the business in the same premiseswhere he also has an office room. According to the petitioner, afterthe respondent had ceased to carry on business at 985, Kandy Road,the timber depot was converted into five tenements which were givenassessments numbers 985-989, that at a later stage these tenementswere demolished and replaced by a garage bearing the assessment number990 and that as a result of these changes premises bearing No. 985 nclonger exist.
Even if it is conceded that the respondent has, since 1952, been carryingon the timber business (“ on a very small scale”, as stated by him) atpremises No. 985, the main question is vvhether he was “ resident ”there within the meaning of that word in section 8 (6) of the Local Authori-ties Elections Ordinance. No definition of “ resident ” is to be foundin that Ordinance. <c Residence ”, in its ordinary sense, is synonymouswith dwelling place, abode or home, but not with a place of business.In Fernando v. Grero1, which counsel for the respondent relied on, it washeld that a place where a medical man had his dispensary, in which wasalso a sleeping apartment where he spent three or four nights each week,was as much his residence as the place where his family lived, and hetoo lived on the other days in the week. That case does not, however,help the respondent very much as the question whether the dispensaryconstituted a residence had to be decided with reference to section 2 (2) (a)of the Colombo Municipal Council (Constitution) Ordinance, No. 60 of1935, which provides that “ a person shall be deemed to reside in, or to beh resident of, any place, if he has, and from time to time uses, a sleepingapartment in any dwelling house therein ”.
*(J938) 40 N. L. B. 270.
WEERASOORIYA, S.P.J.—Gunaselcera v. Wijesinghe
305
It is also to be noted that in the case just referred to, as the dispensarybad a sleeping apartment which was regularly occupied for three or fournights each week, the question whether a place of business per se constitut-ed a residence did not arise for decision there. But in an English case,where the facts were somewhat similar, in that a person carried on a.business at certain premises and regularly lived for three or four dayseach week in a part of the premises which had been specially fitted forbis residence, it was held that his living there, being entirely subservientto the purposes of his business, and that alone, he must be consideredas not having dwelt there and that his dwelling place was where his wife,family and servants lived and where he too lived when he was not athis place of business—Kerr v. Haynes1. This decision was followed inthe local case of Mendis v. Per era 2, where the question that arose was themeaning of the word “ resides ” in section 9 of the Civil ProcedureCode.
That a person’s place of business, as such, is not his place of abode orresidence was held in The Queen v. Hammond3. There are, on the otherhand, cases which have taken the view that the expression residence,in the absence of a technical meaning, may be construed as including aplace of business—see The King v. Braithwaite and others 4 and the authori-ties discussed there. But such a construction was held to be an excep-tional one and was adopted in that case on a consideration of the purposeof the particular Statute in which the word occurred. I am not preparedto regard the respondent as resident at No. 985, Kandy Road, merelyon the basis that he has a business there. No submission to that effectwas made by learned counsel for the respondent, and, in any event,there is nothing in the Local Authorities Elections Ordinance whichappears to justify a construction that a man’s place of business is per sehis residence also.
As for the contention that No. 985, Kandy Road, in addition to beingthe place where the respondent has his timber business, is also his residence,I have to consider what material has been placed before the Court insupport of it. The burden is on the respondent to prove that he wasresident at No. 985, Kandy Road, on the material date. One featureof this case has been the multitude of affidavits filed by both parties.Tor the respondent there are affidavits from the chairman and a memberof the Peliyagoda Urban Council, a retired village headman, an ayurvedicphysician and a school teacher, among others, stating that the respondenthas been residing at No. 985, Kandy Road, while the very opposite isasserted in the affidavits from persons of equal standing which have beenfiled by the petitioner. In this welter of contradiction I hesitate to acton any of these affidavits, unsupported as they are by other material.
No. 985, Kandy Road, is said to be only a little over one mile fromthe respondent’s admitted residence at No. 116/5, Telangapatha Road.Apart from the circumstance that the business carried on by the respondentat No. 985, Kamdy Road, has been on a very small scale since 1952, it is
1 (I860) 29 L. J. Q. B. 70.3 (1852) 17 Q. B. 77*.
s (1909) 13 N. L. R. 41.4 (1918) 2 K. B. 319.
306
Nagaaamy t>, Agjjasfcuro*
•difficult to understand why he found it necessary to have a separateresidence there in such close proximity to No, 116/5, Telangapatha Road.This difficulty the respondent sought to meet in an affidavit dated tile6th September, 1962, wherein he explained that bis house at No. 116/5,Telangapatha Boad, is a four-roomed on©, that his wife and childrenlived there, and as he was also having a few boarders there in order tosupplement his income, he and one of his school going sons went to liveat No. 985, Kandy Boad. The names of three of the boarders appear in theextract marked F from the electoral list of Ward No. 4 of the Wattala-Mabole Urban Council for the year 1980 showing the persons entitledto vote in that ward and residing at No. 116/5, Telangapatha Boad.There is no document of a similar nature in respect of the year 1959.Apart from that, the position taken up by the respondent in his subsequentaffidavit seems to be different from that stated in the affidavit filed byhim on the 5th July, 1962, according to which in 1959 he was residingat No. 985, Kandy Road, " as well as No. 116/5, Telangapatha Boad ”.Even if in 1960 the respondent was, for the reasons given by him, compelledto reside exclusively at No. 985, Kandy Road, the explanation doesnot appear to bold good for the period prior to 1960.
In my opinion the respondent has failed to prove that on the 24thJune, 1959, he was resident at No. 985, Kandy Road. In the result Ihold that he was disqualified from seeking election as a member forWard No. 1 of the Urban Council of Peliyagod?. His election is, therefore,declared null and void. The respondent will pay the petitioner’s costsof these proceedings, which I fix at Rs. 157 ■ 50, exclusive of the costs ofthe hearing on the 24th August. 1962, which the respondent has alreadybeen ordered to pay.
Application allowed.