In Re De, D.M. Abeynaike, S.

 1926 Present: Schneider A. C. J.

In the Matter of the Petitions of D. M. DE S.

ABHAYANAYAKE of Kandy.

Municipal Councils Ordinance-Residence within a Municipal, town-Permissive occupation of furnished rooms-Ordinance No. 6 of 1910, ss. 9 (2) and 11 (2) (c).

Where the question was whether a temporary occupation of sleeping apartments, within Municipal limits, was sufficient to constitute residence within the meaning of section 9 (2) of the Municipal Councils Ordinance, and where the facts disclosed at the inquiry indicated a permissive use of the apartments as guest, or an absence of the liberty to return to them at any time.

Held, that such an occupation of apartments was insufficient to constitute legal residence.

APPEAL from an order of the Chairman of the Municipal Council of Kandy declaring three persons to be duly qualified voters and to be entitled to have their names retained in the list of voters.

The facts appear from the judgment.

H. V. Perera (with him Ameresekere), for petitioner.

N. E. Weerasooriya, for respondent.

 November 8, 1926. SCHNEIDER A .C. J.-

In these appeals the appellant is the same person. They raise the same question of law. They have been numbered in the Registry of this Court as connected appeals. They can conveniently be disposed of in one judgment.

The appellant objected to the names of the respondents appearing in the list of persons duly qualified as voters, published as a supplement to the " Ceylon Government Gazette " of September 3, 1926, on the ground that they did not satisfy the requirement in section 11 (2) (c). The Chairman of the Municipal Council held that they did. Against that holding these appeals are preferred under the provisions of section 16 (1) of the Municipal Councils Ordinance, 1910,1 which grants an appeal to the Supreme Court "on any question of law involved in the adjudication but not on any other ground."

1 (No. 6 of 1910.)

The question of law is stated clearly in the petitions of appeal which have been carefully drafted. It is that the evidence regarding "residence " is insufficient to satisfy the requirement in section 11 (2) (c). It becomes necessary therefore to ascertain " what the evidence is," which the Chairman had accepted as proving residence.

In appeal No. 659 the respondent is M. B. Panabokke. He gave evidence at the inquiry and stated that he was the owner of certain premises within the Municipal town; that he had leased them to an Association which ran a hostel in them that he had not-reserved any portion of the premises for his own use but 'that the Secretary, by arrangement between them, allowed him the use of a room and that the room was furnished with a bed in which he slept whenever he came to Kandy, which was three or four times in a month. But under cross-examination he said that he had occupied the room about three times since the Association had taken possession under the lease about six months before the date of the inquiry. The date of the inquiry was September 30, 1926.

In appeal No. 659a the respondent is R. Divitotawela. He did not appear at the inquiry, but was represented by a Proctor who called one witness. This witness stated that he knew the respondent to own property within the Municipal town; that the respondent usually resided in Uva, but whenever he came to Kandy he went to the house of his mother-in-law which was within the Municipal town; that he had a room of his own there furnished by himself; that there was a bed in that room; and that during the six months preceding the inquiry the respondent had come to Kandy three or four times, and on each occasion had stayed about a week. He also stated that the respondent was " not a mere guest."

In appeal No. 659b the respondent is B. Ratwatte. He too did not appear at the inquiry or give evidence, but was represented by the same Proctor who represented the other respondents. For him, too

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