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DE COSTA v. ASSISTANT GOVERNMENT AGENT
NLR45V476
1944 Present: Hearne J.
DE COSTA v. ASSISTANT GOVERNMENT AGENT, COLOMBO
IN THE MATTER OF AN APPLICATION FOR A WRIT OF
Mandamus or Certiorari No. 306.
Urban Council-Candidate for
election-Qualifications of candidate Absence of name, from list of
candidates-Urban Councils Ordinance, No. 61 of 1938, ss. 8, 9, 11 (1).
No objection can be taken to the nomination of a candidate for election to
an Urban Council on the ground that his name does not
appear on the list, which is prepared under section 9, of persons who are
qualified to be candidates. .
Section 11 (1) merely enacts that he must have the qualifications, mentioned in
section 8.
Where objection is taken to a candidate whose name does not appear on the list,
it is for the Returning Officer to decide whether he has the qualifications.
THIS was an application for a
writ of mandamus or in the alternative for a writ of certiorari.
H. W. Jayawardene, in support.
T. S. Fernando, C.C., for respondent.
Cur. adv. vult.
July 17, 1944. HEARNE J.-
Objection was taken to the nomination of the petitioner, a candidate for
election for the Dehiwala-Mt. Lavinia U. C, on the ground that his name did not
appear in the list, prepared under section 9 of the relevant Ordinance, of
persons who possessed the qualifications referred to in section 8. The Returning
Officer, the respondent to this petition, upheld the objection and rejected the
petitioner's nomination paper.
It is clear from the provisions of section 11 (3) of the Ordinance that
objection may be taken to the nomination of a candidate on certain specified
grounds and that the absence of a candidate's name from the list of persons who
have the qualifications referred to in section 8, is not one of those grounds.
If a candidate who has those qualifications has duly delivered a nomination
paper that is in order and has made the deposit he is required to make in the
manner and within the time prescribed, the Returning Officer would have no power
to reject his nomination paper. No person is qualified to vote unless his name
appears in the list prepared of persons possessing the qualifications referred
to in section 7. (The petitioner's name appears in that list.) But the Ordinance
does not lay down that no person may be a candidate unless his name appears in
the list prepared under section 9 of those who have the qualifications referred
to in section 8. On the contrary section 11 (1) merely enacts that he must have
these qualifications.
Session 9 (7) requires to be considered. It is
as follows:-" The lists certified under sub-section (6) shall be final and
conclusive and be the sole evidence of the due qualification of each of the
persons whose names are included therein to vote or to be a candidate for
election at the general election referred to in sub-section (1) or at any
bye-election that may be necessary for the purpose of filling any casual vacancy
in the Council at any time before the preparation and certification of new lists
for the purposes of the next succeeding general election ".
With reference to the list prepared of persons who possess the qualifications
referred to in section 8 it means, in my opinion, no more than this. If the name
of a person appears in that list it is final and conclusive of the fact that he
has the qualifications referred to in section 8. It is the sole evidence of the
due qualification of a person whose name appears in that list. But the section
does not mean that a person whose name is not in the list has not, or is deemed
not to have, the qualifications that are referred to in section 8. That is a
question the. Returning Officer must decide, on an objection being taken, in the
case of candidates whose names do not appear in the list.
It is admitted that objection could not have been taken on any other ground.
This is another way of saying that the petitioner was in every way legally
qualified to be
