In the matter of a Mandamus on the CHAIRMAN OF THE MUNICIPAL COUNCIL, GALLE.

Present : Mr. Justice Wendt.

In the matter of a Mandamus on the CHAIRMAN OF THE
MUNICIPAL COUNCIL, GALLE.

Municipal election-Mandamus-Refusal to accept nomination of a duly qualified candidate-Conclusive nature of certified list-Default in payment of taxes-Disqualification.--Municipal Councils' Ordinance (No. 1 of 1887), ss. 9 (e), 13-19, 22, 40-43, 128, 145, and 146.

Held, by WENDT, J.-

(1) That if the officer presiding at an election refuses to accept the nomination of a duly qualified candidate, so that the voters present are precluded from recording their votes in his favour, the election of any other candidate is necessarily void.

(2) That section 48 of Ordinance No. 7 of 1887, which enacts that " the new list so prepared as aforesaid, subject to such insertions and erasures as shall have beer ordered and made therein as aforesaid, shall be certified under the hand of the chairman during the last week of October following, and when so certified shall be final and conclusive evidence of the qualification of the persons named therein to be elected or to vote respectively. And such new lists, until the same are in turn superseded, shall supersede and take the place of the lists previously in force," is conclusive of the qualifications of the persons mentioned in the lists, and that no objection to such qualification could thereafter be entertained.

(3) That the said section, while it makes the list conclusive evidence in favour of persons named in it, does not render that list the sole evidence of qualification.

(4) That section 22 of Ordinance No. 7 of 1887, which enacts that ''if at any such election any question shall arise as to the identity or right of any person claiming to be qualified to be elected or to vote, the president shall have power to inquire into the same, and, if it appears expedient to him, to administer an oath or affirmation to any person present at such meeting whom he shall think fit to examine with reference to such claim. Any persons giving false evidence ' on oath or affirmation at such inquiry shall be liable to be prosecuted under the provisions of the Ceylon Penal Code. The decision of the president on any such claim shall, for the purpose of the said meeting, and no further, be final,"-refers only to persons whose names do not appear in the settled list, and is intended to permit of a person taking part in the election who has acquired his qualification subsequent to the certifying of the list.

Where one of the objections to a candidate's qualification to be elected a Councillor was that he was in arrears for more than two quarters in respect of taxes due on certain horses and vehicles owned by him; and where it appeared that such candidate's name was not in the list of persons liable to the tax in question, and that he had not been served with Form I under section 146 or with Form J under section 145 of Ordinance No. 7 of 1887,-

Held, that the non-payment of taxes under the circumstances above-mentioned did not amount to a disqualification under section 9 (e).

WENDT, J.-Considering the serious consequences under section 9 (e) of the non-payment of taxes, there must be some distinct and definite default in the payment of some ascertained sum of money. A person cannot be said to be in default in paying a tax until he has been fixed with notice of the sum which he has to pay and been called upon to pay it within some definite time fixed by the Chairman.

APPLICATION for a writ of mandamus on the Chairman of the Municipal Council directing him to call and hold a meeting for a new election.

The facts are fully set out in the judgment.

W. Pereira, K.C., for the petitioner.

Dornhorst, K.C., for the elected member.

A. St. V. Jayewardene, for the Chairman.

Cur. adv. vult.

12th February, 1906. WENDT J.-

In this matter the petitioner, who was the sitting Member of the

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