excluded in the computation of the fourteen days. There is thus a con-siderable weight of authority in support of the view for whichMr. ELumarakulasinghe contends; namely, that for the purpose ofcomputing the length of the prescribed period there is no differencebetween a provision that a thing may be done within a certain time “ of ”and a provision that it may be done within a certain time “ after ” agiven event or date, and that in either case the day of the event or thedate must be excluded.
Mr. Perera argued that in the present case the legislature clearlyintended that the day of the publication of the result should be one of thedays on which a petition might be presented, and .that therefore the 21days must include that day ; if that day were excluded, a petition filedon that day would be out of time, as being outside and not within the 21days. I agree that the day of publication is one of the days on whicha petition may be presented, being the first day of the prescribed periodsWhat turns on the question of computation, however, is not whether thatday falls within or outside this period, but whether the period is 2nd Juneto 23rd June, as it would be if the 21 days are computed exclusive of the2nd, or 2nd June to 22nd June, as it would be if they are computedinclusive of that day. The question is not as to when the prescribedperiod begins, but as to when it ends upon a proper computation of it.
Mr. Perera 5s next argument is based on a variation in the language ofsection 83 (1) where it prescribes the time for presenting an electionpetition in certain special circumstances. A petition falling withinproviso (a) or paragraph (ii) of proviso (6) may be presented “ at anytime within twenty-eight days after the date of ” the payment or actreferred to in the respective provisos ; and one falling within paragraph(i) of proviso (b), “ at any time before the expiration of fourteen daysafter the day of the publication in the Government Gazette ” of the noticeas to election expenses. Mr. Perera contends that the use of the word“ after ” in the provisos raises a presumption that the expression “ withintwenty-one days of ” used earlier in the same section does not mean thesame thing as “ within twenty-one days after ”, In support of thisview he relies on the following passage in a judgment in an Indian case 1:“ Cl. (a) uses the words ‘ conceal his presence &c. Cl. (6) uses theexpression ‘ give an account of himself ’. When two distinct words,are used in the same section, the ordinary rule of construction is thatthey do not mean identically the same thing. I therefore do notthink that the two words £ presence 5 and c himself 5 are interchange-able, and that the inability to give an account of himself is the exactequivalent of the omission to explain his presence at a particular timeand place. ”
If there is such a rule of construction as is contended for by Mr. Pererait seems obvious that it must at any rate be subject to the qualificationthat the two words or expressions are reasonably capable ofb eing con-strued to mean two different things. An illustration is provided by the verycase that is cited : for no strain on language is involved in such a con-struction of the words “ presence ” and “ himself ”, or of the expressions“ conceal his presence ” and “ give an account of himself ”. While1 A. I. It. 1928 Allahabad 33, at 37.
GUNASEKLARA J.—Runasingham v. Ponnambalam
several cases have been cited where “ within so many days of ” has beenheld to mean the same thing as “ within so many days after ”, Mr. Pererahas not been able to cite any case where these two expressions have beenheld to mean two different things. Nor has he contended that in ordinarynsage they do not mean the same thing. I am unable to see that “ withintwenty-one days of” can have a different meaning to “ within twenty-one days after (The question whether it can mean “ within twenty-one days before ” need not be considered.) As regards the presumptionthat Mr. Perera invokes, it is pointed out in Maxwell on Interpretation 1that the presumption of a change of intention from a change of language(of no great weight in the construction of any documents) seems entitledto less weight in the construction of a statute than in any other case,for the variation is sometimes to be accounted for by a mere desire toavoid the repeated use of the same words, sometimes by the circumstancethat the Act has been compiled from different sources, and sometimesby the alterations and additions from various hands which Acts undergoin their progress through Parliament ”, and that it seems legitimate inconstruing a statute “ to take into consideration that it may have been theproduction of many minds and that this may better account for anyvariety of style and phraseology which is found than a desire to convey adifferent intention. ”
In my opinion the day of the date of publication of the result of theelection in the Gazette must be excluded in the computation of the 21 days,and the election petition has therefore been presented in due time.
The grounds upon which an election may be questioned are set out inparagraphs (a) to (e) of section 77, and it is contended for the petitionersthat the allegation that is now made falls within paragraph (c) whichreads :
“ (c) that a corrupt practice or illegal practice was committed in
connection with the election by the candidate or with his knowledge
or consent or by any agent of the candidate. ”
It is provided by section 70 that within thirty-one days after the date ofpublication of the result of an election in the Government Gazette the elec-tion agent of every candidate at that election shall transmit to thereturning officer a return respecting election expenses, and that thereturn shall be verified by declarations made in a prescribed form by thecandidate and his election agent. In terms of section 58 (1) (/) everyperson who, being a candidate or election agent, knowingly makes thedeclaration as to election expenses required by section 70 falsely is guiltyof a corrupt practice. Mr. H. V. Perera contends that such a corruptpractice being necessarily one committed after the publication of theresult of the election cannot be a corrupt practice that was committed“ in connection with the election ”, though it may be said to have beencommitted in reference to the election. His argument, which he baseson the context, is that the corrupt practice must be so connected with theelection as to be a flaw that has already vitiated it at the time when thereturning officer declared the result of the poll: for (he maintains) whatthe election judge is required to do upon proof of the corrupt practice1 Ninth Edition pp. 326-327.
GUNASEKAK A J.—BLunasingham v. Ponnambalam,
is to declare the election “ to be void ”, and that is nbt the same thing assetting aside what may have been valid originally ; and the other groundsupon which the judge is required to make such an order are all flaws thatvitiated the election before the candidate was declared to be elected.As Mr. Kumarakulasinghe points out, however, this argument is notsupported by the terms of paragraph (d) of section 77, and does not takeinto account an implication contained in other provisions that the groundsare not confined to grounds existing at the time of the declaration of theresult of the poll. Among the grounds specified in paragraph (d) is theappointment as an election agent of a person whom the candidate knewto he disqualified by conviction of a corrupt practice ; but there is nothingin the terms of that paragraph to exclude such an appointment madeafter the election, although under section 59 (4) an election agent maybe appointed before, during or after the election. Section 63 (6), whichprovides that “ where it has been proved to the satisfaction of the electioncourt by a candidate that any payment made by an election agent incontravention of this section was made without the sanction or connivanceof such candidate shall not be void ”, clearly implies that certain pay-ments made after the declaration of the result of the poll may be aground for declaring the election to he void ; for payments made incontravention of the section would be payments of claims sent in to theelection agent more than fourteen days after the day on which the candi-date is declared elected, or other payments made more than twenty-eight days after that day. Again, it is implied in section 75 that a candi-date is liable for his election agent’s error or false statement in the returnor declaration respecting election expenses : for a j'udge is empoweredto relieve him from such liability in the circumstances set out in sub-sections (1) and (3). It does not appear that in respect of these mattersthe candidate incurs any liability unless the corrupt practice or illegalpractice committed by the election agent is regarded as one that fallswithin paragraph (c) of section 77. I am unable to accept Mr. Perera’sconstruction of the words “ in connection with the election ”, and I haveno doubt that the corrupt practice of knowingly making a false declarationas to election expenses is a corrupt practice committed “ in connectionwith the election ” and can be a ground upon which the election maybe declared to be void. I am confirmed in this view by the circumstancethat in the United Kingdom elections have been declared to he voidupon this ground. See, for example, Cheltenham, (1911)1, Berwick-upon-Tweed (1923) z, Oxford Borough (1924) 3.
The next question for decision is whether the application for leave toamend the petition has been made within the time within which an electionpetition questioning the election upon this ground could have been pre-sented. (This application first came up for argument before Gratiaen J.on the 28th July, and upon the hearing being postponed the partiesagreed that any order that might eventually he made should he regardedas having been made on that day.) It is claimed for the petitioners thatthe application has been made within the time prescribed by proviso (a)to section 83 (1) and has therefore been made in due time. In this
1 6 O’ M. <h H. 194.
7 O’ M. <& H. 49.
2 7 O’ M. & H. 1
GTOSTASETC ABA J.—Ktmaaingham v. Ponnamb a lam
proviso to the rule”, requiring every election petition to be presented'within 21 days of the date of publication of the result in the Government■Gazette, it is enacted that an election petition questioning the electionupon the ground of a corrupt practice and specifically alleging a payment•of money or other act to have been made or done since that date by themember whose election is questioned or his election agent in pursuance<or in furtherance of such corrupt practice may, so far as respects such•corrupt practice, be presented at any time within twenty-eight days afterthe date of such payment or act. The application, which was madeon the 25th July, alleges that “ the respondent, who was his own electionagent, filed his return and declarations respecting election expenseson or about the 3rd July, 1952”. The objection that the applicationis out of time is based on a contention that there is no allegation of apayment made or other act done in pursuance or in furtherance of thecorrupt practice that is alleged. It is also contended that any “ otheract ” alleged must be one that is eiusdem generis with payment of money.Mr. Kumarakulasinghe replies that the act that the proviso requiresto be specifically alleged to have been done in pursuance or in furtherance•of the corrupt practice may be an act that is involved in the corruptpractice itself and need not be a separate and distinct act. He submits,however, that even otherwise the filing of the return and declarationswas a separate act done in pursuance or in furtherance of the corruptpractice of making false declarations that is alleged in the proposedamendment, and that there is nothing in the enactment to require that-the act so done must be an act that is eiusdem generis with a payment ofmoney. I agree with this view, and I hold that the application has beenmade in due time.
The last of the grounds upon which the application is resisted is thatf>he addition of the proposed charge would render insufficient the securityfihat has been given in terms of Rule 12 of the Parliamentary ElectionPetition Rules, 1946, for the payment of all costs, charges and expenses-that may become payable by the petitioners. Under paragraph (1)•of the Rule such security must be given at the time of the presentation ofthe petition or within three days afterwards ; and paragraph (2) provides"that the security shall be to an amount of not less than Rs. 5,000, and■that “ if the number of charges in any petition shall exceed three addi-fional security to an amount of Rs. 2,000 shall be given in respect of■each charge in excess of the first three”.The election petition, which was
presented on the 23rd June, contains three charges, and a sum of Rs. 5,000was deposited as security in respect of those charges on the 25th June.It is contended for the respondent that there is no provision for thegiving of additional security after the expiration of the period of threedays from the presentation of the petition and therefore the petitioncannot, or should not, be amended by the inclusion of a new charge.Mr. Perera points out that the giving of security is a matter offundamental importance, for paragraph (3) of Rule 12 provides that—
“ If security as in this rule provided is not given by the petitioner,no further proceedings shall be had on the petition, and the respondentmay apply to the Judge for an order directing the dismissal of thepetition and for the payment of the respondent’s costs. ”
Somasunderam v. Periyanagam
Moreover, Rule 12 (2) provides that the security inust be given, by adeposit' of money, and in terras of Rule 13 (1) the money so depositedvests in the Chief Justice. It is pointed out that the respondent wouldbe deprived of the benefit of this provision in respect of any purportedsecurity that is given otherwise than in compliance with the rules.
It is quite clear that there is provision for the amendment of a petitionby the addition of new charges even after the lapse of three days fromthe presentation of the petition, and that there is no limit to the number ofcharges that can be added with the leave of a Judge if the requirements ofsection 83 (1) are satisfied. If Mr. Perera is right in his contention thatthere is no provision for the giving of additional security at that stage ofthe proceedings, it seems to me that the result would be that no securityneed be given in respect of those charges ; and not that the number ofcharges must be limited by the amount of the security deposited inanticipation of new facts coming to light or new offences being committed.It is therefore not necessary to consider whether there is substance in thecontention that additional security cannot be given after the lapse ofthree days from the presentation of the petition.
The application for leave to amend the petition in the manner proposedis allowed. The costs of this application will be costs in the cause.
Application allowed.