025-NLR-NLR-V-76-H.-M.-WILSON-Appellant-and-M.-SUMATHIRATNE-Respondent.pdf
130
WIMALARATNE, J.—Wilson v. Sumatkiraine
1972
Present: W im alaratne, J.
H. M. WILSON, Appellant, and M. SUMATHIRATNE, Respondent
Urban Council—Contract of tenancy between the Council and a member in respecof a house built by the Council for poorer classes—Whether it disqualifies themember from sitting and voting in the Council—Local Authorities ElectionsOrdinance (Cap. 262),ss. 9(l)(f), 10, 11—Urban Councils Ordinance (Cap. 255),ss. 129 (g), 227.
The accused-appellant sat and voted as a member of an Urban Councilwhen he was at that time the tenant of a model dwelling house which had beenconstructed and rented to him earlier by the same Council. The house belongedto a public utility service provided by the Council under section 129 of theUrban Councils Ordinance.
The accused was Charged with having committed an offence punishableunder section 11 of the Local Authorities Elections Ordinance. The Magistrateconvicted him because he took the view that by reason of the contract of tenancythe accused was a person who held or enjoyed a contract or agreement withthe Urban Council and was therefore disqualified under section 9 (1) (/) fromsitting and voting in the Council.
Held, that no -disqualification attaches under section 9 (1) (/) of the LocalAuthorities Elections Ordinance to a person who holds or enjoys a contractor agreement with an Urban Council for the provision of public utility services-which such a Council is empowered to establish and maintain under section129 of the Urban Councils Ordinance.
E. R. S. R. Coomaraswamy, with K. Devasagayam and S. C. B. Walgam-paya for the accused-appellant.
No appearance for the complainant-respondent.
August 30, 1972. Wimalarat:ne, J.—
The accused was the tenant of a model dwelling house constructedand rented out by the Urban Council of Gampola on a monthly rentalof Rs. 12 from 1st November, 1959. He was elected a member of thesame Urban Council on 1.1.68 and sat and voted at meetings of theCouncil held on 22.11.69, 21.1.70 and 25.1.70.
The complainant charged the accused with having committed offencespunishable under Section 11 of the Local Authorities Elections Ordinance(Chap. 262) . The learned Magistrate took the view that the accused wasdisqualified under Section 9 from sitting or voting as a member, that hisseat became ipso facto void under Section 10, and convicted and sentencedhim to a fine of Rs. 35 on each count.
S. C. 611/70—M. G. Gampola, 17947
Appeal
from a judgment of the Magistrate’s Court, Gampola.
Cur. adv. vult.
WIMALARATXE, J.—Wilson v. Sumathiratne
131
The disqualifying Section reads as follows :—.
“ 9 (1) No person shall, at any time, be qualified to be elected underthis Ordinance, or to sit or to vote, as a member of any localauthority, if such person at that time—
(/) directly or indirectly, himself or by any other personwhatsoever in trust for him or for his use or benefit oron his account, holds or enjoys, in the whole or in part, anycontract or agreement or commission made or enteredinto with or accepted from any person for or on accountof such authority :
Provided that nothing herein contained shall extendto any pension or gratuity granted by such authorityin respect of past service, nor to any contract, agreementor commission entered into or accepted in its corporatecapacity by any incorporated trading company inwhich such person may be a member or a shareholder. ”
The learned Magistrate held that by reason of the tenancy agriemeu bthe accused was a person who held or enjoyed a contract or agreement withthe Urban Council. He followed the reasoning in the decision in Sirimal v.de Silva 1—51 N.L.R. 42—that the object of Section 238 of the UrbanCouncils Ordinance (which is renumbered as Section 227 in Chap. 255)is obviously to prevent a conflict between interest and duty which wouldotherwise arise.
Section 227 of Chap. 255 reads as follows :—
“ (1) No member, officer, or servant of any Urban Council shall,whether directly or indirectly, be concerned or have any financialinterest in any contract or work made with or executed for theCouncil.
If any member, officer or servant of an Urban Council is conce rnedor has any financial interest in any contract or work made with orexecuted for the Council, he shall be guilty of an offence punishablewith a fine not exceeding five hundred rupees, and shall, as thecase may be, be disqualified from sitting as a member of theCouncil or from holding any office or employment under theCouncil . ”
In that case the Urban Council ordered, for the use of the Rest Housesmaintained by it, four dozen packets of Lux soap from a shop ownedby the Chairman of the Council. The bill was paid for on the express1 (1949) 51 N. L. II. 42.
132
WIMALARATNE, J.—-Wilson v. Sumathiralne
authority of the Chairman. Gratiaen J. held “ but with little enthusiasm ”that the evidence disclosed the commission of an offence prohibited bySection 227.
The learned Magistrate thought that a conflict between interest andduty would arise in the instant case too, if, for example the Councildecided to raise the rental or to give notice to the accused to quit thepremises. It was urged before the Magistrate that some limitationmust be put upon the general words of the section where the agreementrelates to public utility services provided by the Urban Council to itsinhabitants. In terms of Section 129 of the Urban Councils Ordinance,it is open to an Urban Council to establish and maintain for the benefitof. the inhabitants the following among other public utility services :—
(a) water supply;
(c) the supply of electric light or power ;
(g) the provision of housing accommodation for the poorer classes.
If the rule in Section 9 (1) (/) of Chap. 262 or in Section 227 of Chap. 255is strictly applied, then every member of a local authority who has anagreement with that authority for the supply of water or electricity willbe disqualified. But they are not disqualified for the reason that thoseagreements relate to the supply of public utility services establishedand maintained for the benefit of the inhabitants of the area. Why,then, should a person who has entered into a tenancy agreement for theoccupation of a dwelling house belonging to that authority on a rentalof Rs. 12 per month be disqualified ? The Magistrate thought that therewas no evidence that the accused was given the dwelling because hebelonged to the poorer classes, within the meaning of Section 129 (g).The evidence of Mohamed Sadikeen, a member of the Council from 1958,was that the building of these houses was a part of the Council’s SlumClearance Scheme. The rent of Rs. 12 per month itself suggests theinference that these dwellings were meant as accommodation for thepoorer classes.
I take the view that no disqualification attaches under Section 9 (1) (/)of the Local Authorities Elections Ordinance to a person who holdsor enjoys a contract or agreement with an Urban Council for the provisionof public utility services which such a Council is empowered to establishand maintain under Section 129 of the Urban Councils Ordinance.
The convictions and sentences are accordingly set aside and theaccused is acquitted.
Appeal allowed.