1933 Present : Garvin S.P.J. and Maartensz A.J.

JAYAWICKREME v. CASSIM.

IN THE MATTER OF AN APPLICATION UNDER SECTION 31 OF THE

MUNICIPAL COUNCILS ORDINANCE, NO. 6 OF 1910.

Municipal Councils Ordinance-Erasure of name of elected Councillor-Ceasing to possess qualification-Uncertificated bankrupt-Ordinance No. 6 of 1910, ss. 31-42.

Section 31 of the Municipal Councils Ordinance empowers the Chairman to erase from the list of persons duly qualified to be elected the name of a Councillor, who after election is proved to have been under a disqualification at the date of his election, whether that disqualification arose subsequent to the time his name was entered on the list or whether it existed at the time the list was prepared.

A person who has been adjudicated an insolvent and who has not obtained a certificate at the date of the preparation of the list is an uncertified bankrupt within the meaning of section 10 (4) (c) of the Ordinance.

APPEAL from an order of the Chairman of the Municipal Council, Galle, under section 31 of the Municipal Councils Ordinance, No. 6 of 1910, erasing the name of the appellant from the list of persons qualified to be elected. The appellant was elected a Councillor of the Municipal Council of Galle on December 7, 1932. The election proceeded upon the revised lists certified on December 31, on October 31, 1932, and the appellant's name appeared on the list of persons qualified to be elected. On December 19, 1932, a petition was addressed to the Chairman in which it was alleged that the appellant had not the property qualification which was necessary before a person's name can be placed on the list of qualified persons. After inquiry, the Chairman ordered the erasure of his name from the list.

F. A. Hayley, K.C. (with him B. F. de Silva), for appellant.-Section 42 is conclusive for all purposes. The legislature recognized in sections 28 and 32 the finality given by section 42. The strong language of section 42 is unnecessary unless the legislature meant the list to be final for all purposes.

In Usuf Ismail v. Mohamed Zair [1 32 N. L. R. 10.] the two sections 31 and 42 have been reconciled. .

The appellant was elected to be a Councillor as from January 1, 1933. Between the date of election and the date of taking up duties as a Councillor, a person may rid himself of a disqualification.

The Chairman must adjudicate on the position as it stood on the day that the proceedings were initiated.

H. V. Perera, for respondent.-A distinction is made by sections 10 and 42, between " qualified to be elected" and a " qualification to be entitled to have a name on the list ".

The certification of the list (in accordance with section 42) is an. executive act. The doctrine of res judicata is not applicable to an executive act Section 31 presupposes the validity of an election as a Councillor, but not the right to remain as a Councillor.

F-. A. Hayley, K.C., in reply.

February 14, 1933. GARVIN S.P.J.-

The appellant was elected a Councillor for the Third Division of the Municipal Council of Galle, on December 7, 1932, for the period January 1, 1933, to December 31, 1935. The election proceeded upon the revised lists certified on October 31, 1932, and the appellant's name appeared upon the list of persons qualified to be elected. Shortly after the election a petition dated December 19, 1932, was addressed to the Chairman in which it was alleged that the appellant had not the necessary property qualification which is necessary before a person's name can be placed upon the list of those entitled to be elected Councillors. An inquiry was then held in the course of which a further allegation was made to the effect that the appellant was an adjudicated insolvent and had not yet received a certificate and whose adjudication has not been annulled. In due course, the Chairman on January 13, 1933, recorded that he was satisfied that at th