004-NLR-NLR-V-38-SARAVANAMUTTU-v.-CHAIRMAN,-MUNICIPAL-COUNCIL,-COLOMBO.pdf
Saravanamuttu v. Chairman, Municipal Council, Colombo.
21
1936Present; Macdoneil C.J. and Poyser J.
SARAVANAMUTTU v. CHAIRMAN, MUNICIPALCOUNCIL, COLOMBO.
S.C. (Irvty.) 4 of 1936.
Municipal Councils Ordinance—Order by Chairman erasing name of councillorfrom list of those qualified to be elected as councillors—Opportunity tocouncillor to show cause—Assessment of rateable property—Finality ofthe provisions of section 117(8)—Municipal Councils Ordinance,
No. 6 of 1910, s. 31.
The Chairman of a Municipal Council, before he makes an order undersection 31 of the Municipal Councils Ordinance erasing from the list ofpersons qualified to be elected the name of a councillor upon the groundthat he is disqualified, is bound to give the party affected an opportunityto show cause against the order.
Section 117 (8) of the Municipal Councils Ordinance which makes anassessment final for the purpose of the rate to be paid on a particular pieceof rateable property is not necessarily final for the purpose of section 31.
T
HIS was an appeal from an order of the Chairman of the MunicipalCouncil, Colombo, under section 31 of Ordinance No. 6 of 1910,
erasing the name of the appellant from the list of persons entitled to beelected to the Municipal Council.
22 MACDONELL C.J.—Saravanamuttu v. Chairman, Mun. Council, Colombo.
The ground assigned for erasing his name from the list was that at thedate of election the appellant was not possessed of all the qualificationsrequired, in that his qualifying property was not of the annual value ofRs. 500 (section 10 (3) (j) ).
H. V. Perera, for appellant.—Annual value is defined in section 3. Adistinction must be made between an assessment for the purpose ofrating and the annual value for the purpose of qualification undersection 10 (3) (j). (Cooke v. Butler) The assessment for the purposeof rating may be arbitrary. It is in the landlord’s interest to seethat it is as low as possible. The tenant is no party to it. For thepurpose of section 10 (3) (j) it should be open to the tenant to prove theactual rent paid. The Chairman has treated the assessment book asconclusive. It is not even evidence against the tenant. What is evidence,prima facie at least, is the revised list under section 42. The sectionitself makes the list final and conclusive. The appellant should at leasthave been given an opportunity of showing cause against the order.The affidavits which are not challenged show that the actual rent paid isRs. 50 per month.
A. E. Keuneman, for respondent.—Section 117 of the Ordinance makesthe assessment final for all purposes, not merely for the purposes of rating.The occupier is at liberty to inspect the assessment book and takeobjections. As a matter of fact the notice of assessment is under 117 (3)to be served on the occupier although the Council as a matter of courtesysends a copy to the landlord. If no objection is taken the assessment ismade final for the year. Under section 31 the appellant need not havebeen given an opportunity of showing cause. It has been proved to thesatisfaction of the Chairman by an inspection of the assessment bookthat the appellant was disqualified and he has given the necessary notice.
H. V. Perera, in reply.—Section 117 (8) merely enacts that if no objectionis taken to the assessment within a month it will thereafter not be possibleto take objections. It is final only in that sense and to that extent.
Cur. adv. vult.
March 18, 1936. Macdonell C.J.—
This was an appeal against an order of January 6, 1936, of the Chairmanof the Municipal Council of Colombo, under section 31 of Ordinance No. 6of 1910, erasing the name of the appellant from the list of persons entitledto be elected to the Municipal Council.
The facts were that the appellant had on November 7, 1935, beenelected unopposed a councillor for the Ward of St. Paul’s, Colombo, fora period of three years, January 1, 1936, to December 31, 1938. Theground assigned for erasing his name from the list of persons entitled tobe elected to the Council is given in the letter of January 3, 1936, writtenby the Chairman of the Municipal Council, the respondent, to theappellant, as follows : —
“ I have the honour to refer to the list of persons qualified to be
Municipal Councillors published in Gazette No. 8,142 of Friday, August
30, 1935, in which your name appears as qualified by reason of the fact
1 L.R. 8 C. P. 256.
MACDONELL C.J.—Saravanamuttu v. Chairman, Mun. Council, Colombo. 23
that you are the occupier of premises No. 344', Wolfendahl street, andto inform you that it has now been brought to my notice that theannual value of these premises is, and was on July 1, 1935, and duringthe preceding 6 months, Rs. 400 only, i.e., less than the minimumrequired by section 10 (3) (j) of Ordinance No. 6 of 1910, viz., Rs. 500.“I have therefore no alternative but to give you notice as requiredby section 31 of Ordinance No. 6 of 1910, that I propose to order thatyour name be erased from the list of persons entitled to be elected andthat you will thereupon cease to be a Councillor ”.
The appellant replied in a letter of January 4, 1936, (R 2) : —
“ In reply to your letter No. 1 of yesterday’s date, I have the honourto state that I engaged house No. 344, Wolfendahl street, on a monthlyrental of Rs. 50 from June 1, 1932. Owing to my spending Rs. 225for installing electric lights and lighting, I was paying Rs. 7.50 lessper month (i.e., Rs. 42.50) by arrangement with the agent of the ownerfrom whom I rented the house, until this of Rs. 225 was liquidated.From December, 1934, up to date I have been paying Rs. 50 per mensemas house rent.
“ 2. I applied to have my name inserted in the lists of those qualifiedto be Councillors in 1934. The Revenue Inspector told me that as myrent receipts at that time were only for Rs. 42.50 per mensem, myname could not be inserted. I then told the Revenue Inspector thatI would be paying Rs. 50 a month very soon, and that he should insertmy name at the next year’s revision of the lists. In 1935 when thelists were revised, the Revenue Inspector called and verified the houserent receipts and questioned the agent of the landlord to whom I payrent, and had my name inserted in the lists.
“ 3. Please be good enough to let me know whether you are holdingan inquiry into this matter before taking any action to order the erasureof my name from the lists, to enable me immediately to prepare andpresent an appeal to the Supreme Court ”.
The Chairman of the Council, the respondent, further replied in a letterof January 6 (R 3) : —
“ In reply to your letter of the 4th instant, I have the honour to pointout that in so far as the qualification of a Councillor as distinct from avoter is concerned, it is the annual value and not the monthly rentalof the premises occupied that is relevant in the absence of thealternative qualification of ownership.
“ 2. The erroneous inclusion of your name in the list of personsqualified to be Councillors is a matter that calls for inquiry and I haveasked for a report from the Department charged with the duty ofcompiling the lists.
“ 3. As I am satisfied that you do not possess all the qualificationsrequired in a Councillor I am unable to defer my order for the erasureof your name from the list of persons qualified to be elected and theorder has accordingly been made to-day ”.
24 MACDONEL.L C.J.—Saravanamuttu v. Chairman, Mun. Council, Colombo.
The appellant embodied his letter of January 4 in an affidavit whichwas before us, and supported it by an affidavit from his landlord.
The appeal before us' involves an examination of certain sections of theMunicipal Councils Ordinance, No. 6 of 1910. That Ordinance providesin section 40 that the Chairman shall in July of every year in which thetriennial elections are to take place (1935 was such a year) prepare newlists of persons duly qualified to be elected and of persons duly qualifiedto vote for each division in the Municipality. The same section saysthat such lists, when prepared, shall be published in the Gazette as near asmay be to the 31st of August. Section 41 provides the procedure bywhich names that have been omitted can be inserted, and names whichhave been inserted can be erased. Then comes section 42 which readsas follows : —
. “ The new and revised lists so prepared shall be certified under thehand of the Chairman during the last week of the month of October ofeach year, and when so certified shall be final and conclusive, and theonly evidence of the qualification of the persons and the companieswhose names appear therein to be elected or to vote respectively. Noperson or company whose name does not appear in such lists shall beentitled either to be elected or to vote at any election, and such newand revised lists, until the same are in turn superseded, shall supersedeand take the place of the lists previously in force ”.
The wording of section 42 is peremptory ; the lists when certified areto be final and conclusive and the only evidence of the qualification of aperson to be elected, the point in dispute here. As the appellant’s nameconfessedly was in the new list, certified in October, 1935, then undersection 42 it would appear that he was conclusively entitled to be elected.But we have to consider also the effect of section 31, which reads asfollows : —
“ If at any time it is proved to the satisfaction of the Chairman thatany Councillor was at the date of his election not possessed of all thequalifications required by this Ordinance in respect of persons entitledto have their names placed on the list of persons qualified to be elected,or at such date was under any of the disqualifications specified in thisOrdinance, or that such Councillor has since his election ceased topossess such qualifications, or become subject to any one of suchdisqualifications, the Chairman is hereby required after notice to suchCouncillor to order the erasure of the name of such person from the listof persons entitled to be elected, and the Chairman shall erase suchname from such list, and the Councillor whose name is erased shallthereupon cease to be a Councillor.
“ Provided, however, that every order of erasure so made by theChairman shall be subject to an appeal to the Supreme Court….. The Supreme Court shall also make such order as to costs
as it shall deem just ”.
■ These two sections then, 42 and 31, are not, on their wording, easy toreconcile. Section 42 says that the certified list shall be final and con-clusive, and as confessedly the appellant’s name was on that list it would
MACDONELL C.J.—Savavanamuttu v. Chairman, Mun. Council, Colombo. 25seem conclusive that he had a right to be elected- as has been said above,but section 31 at the same time gives the Chairman power to declare thata person elected ceases to be a Councillor on the ground that he was notat the time of his election possessed of all the qualifications required.These qualifications are to be found in section 10 of the Ordinance, andsub-section (3) (j) of that section gives as one of the qualifications thatthe person claiming to be elected “ Is on the 1st of July in such year, andhas been during the whole of the then last preceding six months, inoccupation of any house, warehouse, counting-house, shop or otherbuilding (in this section referred to as qualifying property) of the annualvalue of not less than five hundred rupees, within the division for whichhe desires to be elected ”, The respondent filed an extract from theassessment book showing that the qualifying property of the appellant,namely, 344, Wolfendahl street, was only assessed at Rs. 400 Thisassessment had been made under the provisions of section 117 of theOrdinance which provides how property should be valued for the purposeof rates, and, says sub-section (8) “ every assessment against which noobjection is made shall be final for the year
The first difficulty before us is to try and reconcile sections 42 and 31.As to this, there is the case Jayawickreme v. Cassim1, which is bindingupon us. In his judgment at page 355, Garvin J. says as follows:“ Section 42 does undoubtedly make the lists final and conclusive and theonly evidence of the qualifications of a person to be elected. Its effectand, I think, the only effect intended by the legislature was that anyquestion as to the right of a person to be elected was to be determined bythe simple test, is his name upon the lists or is it not. It definitelyexcludes evidence which is directed to show that notwithstanding thepresence of his name on the lists he was a person who in fact had not thequalifications required by the Ordinance before a person is entitled tohave his name placed upon such lists. It is not inconsistent either withthe terms of that section or with its purpose and effect that a powershould be vested in the Chairman to erase from the lists the name of aCouncillor who after election was proved to his satisfaction to have beenunder a disqualification at the date of his election, whether that dis-qualification arose subsequent to the time his name was entered upon thelists or whether it existed at the time when the lists were being prepared.Section 42 does not say that the lists shall be final and conclusive and theonly evidence in the case of a Councillor of the possession by him of thequalifications required to have his name entered in such lists or of thepresence or absence of circumstances which the law declares to be adisqualification to his name being entered upon such lists. All it doessay is that the lists shall be conclusive of his right to be elected. Indeed,section 31 assumes that he has been lawfully elected, for throughout thesection a language is used which implies that the person concerned is aCouncillor duly elected and hence it is that the section specially providesthat ‘ the Councillor whose name is erased shall thereupon cease to be aCouncilor’. No question of his right or ‘qualification to be elected’arises, the question for determination being whether or not such aCouncillor was at the date of his election possessed of all the qualifications
> 34 N. L. ft. 352.
26 MACDONELL C.J.—Savavanamuttu v. Chairman, Mun. Council, Colombo.
required in respect of persons entitled to have their names placed upotithe list of persons qualified to be elected or at such date was under any ofthe disqualifications specified in the Ordinance. The provision vestingin the Chairman the right to remove from the list of persons entitled to beelected the name of a Councillor who at the date of his election is shownto his satisfaction to have been a person who was not entitled to havehis name upon such list is not in my opinion inconsistent with the otherprovision which makes the list the sole evidence of his qualification to beelected. His election remains a good election. The mere erasure of hisname from the list of those entitled to be elected does not involve adeclaration that his election was bad or unlawful. The consequencewhich the law attaches to the erasure is that he ceases to be a Councillor.It is impossible to give section 31 any other meaning than that which isimplicit in the plain language employed by the legislature.
“ The appellant has been clearly shown to have been suffering froma disqualification at the date of his election. The Chairman wastherefore right in erasing his name from the list. The consequencewhich the law attaches to such erasure is that the appellant ceases to bea Councillor. ”
In this particular case then the claim of the respondent is that grantedthe name of the appellant was on the final and conclusive list certified inOctober, 1935, section 42, still the Chairman, having discovered that atthe date of his election, November 7, 1935, the appellant was “ notpossessed of all the qualifications required ” in that his qualifying propertywas not of the annual value of Rs. 500, section 10 (3) (j), was justified inerasing the appellant’s name from the list of persons entitled to be elected.As has been said, the decision in 34 N. L. R. 352 is binding upon us, andthe only remaining question is whether the Chairman (respondent) properlyexercised the powers vested in him by section 31, which are the powershe purports to have used in this matter.
It was argued to us very strenuously that we must follow implicitlythe words of section 31, and that that section requires only that it mouldbe “ proved to the satisfaction ” of the Chairman that the person inquestion was not at the date of his election possessed of all the quali-fications required, that the Chairman is under no obligation to hold aninquiry at which the person to be affected by his order would be present,and that all that is needed when it has been proved to the satisfaction ofthe Chairman, as above, is to give notice to the person affected andthereafter to make the erasure of his name. Admittedly the Chairman(respondent) has done this thing. He has declared that it is proved to hissatisfaction that the appellant was not at the date of his election possessedof all the qualifications, he has given notice to the appellant and thenmade his order.
We cannot accede to this interpretation of section 31. That sectionvests in the Chairman powers which may fairly be called judicial powers.The fact has to be proved to his satisfaction, and proof means evidence,with an opportunity to the person to be affected himself to lead evidence,and we do not see anything in the words of the section which would take
MACDONEL^, C.J.—Savavanamuttu v. Chairman, Mun. Council, Colombo. 27
away this right from the person affected or would give to the Chairmanthe confessedly arbitrary and unusual power of determining the wholematter without giving the person to be affected a chance of being heard.True, the section may not be very happily worded, but the requirementsin it that a certain matter must be proved to the satisfaction of theChairman and that he is required to give notice to the person to beaffected, are best interpreted as meaning that whatever proof the Chair-man may have received ex parte, still, after he has given notice to theperson to be affected he should then give that person the opportunity toshow cause against the prima facie case that has been made against him.In this case the appellant did ask for an inquiry by the Chairman beforetaking action, though he somewhat precipitately said that he made thatrequest to enable him to prepare and present an appeal to the SupremeCourt. Still he did ask for an inquiry.
For the respondent it was strongly urged upon us that the provision insection 117 (8), “every assessment against which no objection is madeshall be final for the year ”, deprived the appellant of any right to contestthe assessment for St. Paul’s Ward in which assessment his qualifyingproperty appears as of the annual value of Rs. 400 only. We are doubtfulof this argument and incline to the view that since section 117 is in thatpart of the Ordinance which deals with rates and taxes, and is itself asection dealing with the same subject, a section providing how the Chair-man shall enter up each year the annual value of each piece of propertyto be rated, of how notice of that annual value is to be given to the partyto be rated, of how objections to that annual value may be raised anddecided upon, section 117 (8) makes the assessment final for the purposeof the rate to be paid on any particular piece of rateable property but notnecessarily final for the purpose of section 31. As has been said above,the Chairman of the Municipal Council, acting under section 31, must,after notice to the person to be affected, give that person the opportunityto state his case.
We were invited by the appellant to declare that he had proved that,the annual value of his premises was Rs. 500 and over. The materialsbefore us are quite insufficient to justify us in making any pronounce-ment on that disputed fact. We prefer to make on this appeal thefollowing order.
The order of the respondent, dated January 6, 1936, is set aside pro-forma, and the matter is returned to the respondent for him to determine,after notice to the appellant, on the materials now before the Court andon any other materials that may be brought forward pro and con, as tothe question whether at the time of his election the appellant waspossessed of all the qualifications required.; We would at the same timedraw the attention of the respondent to the case Cooke v. Butler1 whereBovill C. J., at page 257 draws a distinction between “ rateable value of£ 12 or upwards ” and “ rated at £ 12 ”.
The appellant, having substantially succeeded, must have the costs ofthis appeal.
Poyser J.—I agree.Order set aside.
1 L.B. 8 C. P. 236.
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