Present:  Dalton J. 1930

In the Matter of an Application for a Writ of Quo Warranto.

MURUGESU v. MUTTUCUMARU.

Residence-Qualification of member-Constructive inhabitancy-Burden of proof-Village Communities Ordinance, No. 9 of 1924, s. 18 (b).

Evidence of constructive inhabitancy may be given in proof of residence within the meaning of section 18 (b) of the Village Communities Ordinance.

Where there has been no actual inhabitancy daring part of the period, the onus is on the claimant to prove a constructive residence and in order to discharge that onus there must be an intention of returning after a temporary absence and a power of returning at any time without breach of any legal obligation.

APPLICATION for a writ of quo warranto in respect of the office of Chairman of the Village Committee of Karainagar subdivision. Petitioner, who was a resident of the division, contended that the respondent was not legally qualified for election as a committee member, and therefore as chairman.

H. V. Perera (with A. Gnanaprakasam), for petitioner.

Hayley, K.C. (with Nadarajah and Ramachandram), for respondent.

February 13, 1930. DALTON J.-

The petitioner asks that the respondent vacate his office as chairman and as member of the Village Committee of Karainagar and that a fresh election of such chairman and member be ordered. Petitioner is a resident of Karainagar, an elected member of the Village Committee, and an unsuccessful candidate for the position of chairman. In support of his petition he urges first, that respondent is not legally qualified for election as a committee member and therefore as chairman, and secondly, even if he be qualified, his election as chairman was irregular and null and void.

It is provided by section 18 (b) of Ordinance No. 9 of 1924 (The Village Communities Ordinance) that a person shall be disqualified to be elected or to be member of any committee unless he has been resident in the subdivision for a period of one year immediately prior to the date of his election.

The date of election of the Committee was June 11, 1929; the date of the meeting of the Committee at which the respondent was elected as chairman was July 4, 1929.

With regard to the first point raised, petitioner urges that respondent was not a resident of the subdivision of Karainagar for a period of one year immediately prior to June 11, 1929. In support

of this allegation affidavits have been filed, and have been replied to by affidavits on behalf of the respondent. The facts I find proved by those affidavits are as follows: -

Respondent was a public servant who retired from Government service after 42 years' service in January, 1929. From 1922 to the date of his retirement he was employed as Chief Clerk, Fiscal's Office, Jaffna. Whilst so employed he rented a house, where he lived with his wife and children at Vannarponnai, a suburb of Jaffna and about 14 miles from Karainagar. During this time, and previously, he owned a house, fields, and gardens at Karainagar, his ancestral home, so it was stated, to which he went during convenient week ends, during all holidays, and when he was on leave, to reside there and to look after the cultivation of his fields and gardens which are stated to be fairly extensive- He remained there permanently after his retirement on pension in January, 1929. The house in Jaffna was occupied as a matter of convenience to himself, since it would have been possible, so far as the performance of his duties were concerned, for him to have travelled the 14 miles to and from Karainagar daily.

Affidavits were filed by the petitioner to support his contention that respondent did not reside at Karainagar at all in 1927 or 1928. One deponent, who from his position as a manager of a cigar factory should be a responsible person, actually states that petitioner was living in a house to the south of his at Vannarponai in 1927 up to January, 1