COMMISSIONER OF ELECTIONS & OTHERS
COURT OF APPEALTILAKAWARDENA, J.
C.A. EP 3/2000MARCH 02nd, 2001
Parliamentary Elections Act 1 of 1982 – S.92, 96(a) – Rule 14 ofParliamentary Election ■ Petition Rules 1981 – Time limit of 14 days -Irregularity in the procedure followed at the Registry.
The petitioner filed the Election Petition on 02. 11. 2001 challenging theresults of the Parliamentary General Elections held on 10. 10. 2000 forthe Electoral District of Maha Nuwara.
The Registrar of the Court of Appeal has intimated to Court that No Noticeof the presentation of the Petition had been tendered to the office of theRegistrar. Ex-facie it appeared that on the Records that there was causefor the Petition to be rejected, for non compliance with the time limit of 10days in Rule 14.
(i) An irregularity in the procedure followed at the registry had led to anerror in the information furnished by the Registrar, Election Petitions,Notices or Motion pertaining to Election Petitions should have been,upon an acceptance by the Registry endorsed in the Elections Registerand not in the General Motion Book.
The litigant should not suffer the hardship or mistakes deliberatelyor otherwise made by the Registry.
In the matter of an Election Petition.
Cases referred to :
Nanayakkara v. Kirtella (Deed) and others – 1985 2 SLR 391.
Chandrakumar v. Kirubakaran and others – 1989 2 SLR 35.
K. N. Choksy PC with Daya Pelpola. S. J. Mohideen. Ronald Perera andS. H. A. Mohamed for Petitioner.
Cur. ado. vult.
Sri Lanka Law Reports
120011 3 Sri L.R.
March 22. 2001.
SHIRANEE TILAKAWARDENA. J.The Petitioner filed this Election Petition on 02. 11. 2001,challenging the results of the Parliamentary General Electionsheld on 10. 10. 2000 for the Electoral District of Mahanuwara.In terms of section 96 (a) of the Parliamentary Elections Act No:1 of 1981 as amended, he sought that the said election for theDistrict of Mahanuwara be declared void in terms of Section92( 1) of the aforesaid Act.
The Registrar of the Court of Appeal had intimated tothis Court (by J. E. dated 1. 1. 2000) that no notices of thepresentation of the Petition had been tendered to the officeof the Registrar. No proof of service by the Petitioner on theRespondents of notice of the presentation of the Petition and acopy of the Petition had been furnished. No documents had beenfiled to prove service of the aforesaid notices on the Respondenteither by post or other mode of delivery. Therefore this Courtissued notice on the Petitioner to show cause as to why thepetition should not be rejected by the Court as ex Jade itappeared that ‘the presentation of the Petition’ had not been incompliance with the terms of Rule 14 of the ParliamentaryElection Petition Rules, 1981. This Rule reads as follows:-
14(1) Notice of the presentation of a Petition, accompanied bya copy thereof shall, within ten days of the presentationof the Petition-
la) be served by the Petitioner on the Respondent: or
be delivered at the office of the Registrar for service onthe Respondent, and the Registrar or the officer of hisdepartment to whom such notice and copy Is deliveredshall, if required, give a receipt in such form as maybe approved by the President of the Court of Appeal.
The service under paragraph (1) of notice of the presentationof a petition and copy thereof by the Petitioner on theRespondent may be effected either by delivering such notice
Rajlndranath u. Commissioner of Elections &,others(Shlranne Tllakawardena, J.)
and copy to the agent appointed by the Respondent underrule 9 or by posting them in a registered letter to the addressgiven under rule 9 at such time that, in the ordinary courseof post, the letter would be delivered within the time abovementioned, or by a notice published in the Gazette statingthat such petition has been presented and that a copy of itmay be obtained by the respondent on application at theoffice of the Registrar.
Where notice of the presentation of a petition, accompaniedby a copy thereof, is delivered under paragraph (1) at theoffice of the Registrar for service on the respondent, suchservice may be effected in the same manner as the service ofa notice issued by a court is effected under the Civil ProcedureCode.
President’s Counsel conceded on behalf of the Petitionerthat rules pertaining to procedure as well as limits set on timewere mandatory. In the case of Nanayakkara v. Kirlella(Deceased) and others'11, Collin Thome J had held that thetime limit prescribed by Rule 15(1) of the ParliamentaryElections Petition Rules of 1946 Rules (which was identical tothe present Rule 14 adverted to above) for service of notice ofthe presentation of an Election Petition on the Respondents wasmandatory and applied to every mode of service set out underthe sub paragraphs (a) and (b). Even where the Petitionerdelivered to the Registrar the notices and copies of the Petitionunder the aforesaid Rule the actual service must be affectedwithin ten days.
This section envisages that notice of presentation must betendered within ten days and further allows the Petitioner achoice of one of several modes of service.
By service of the notices and a copy of the Petition by thePetitioner on the Respondent directly. The Petitioner coulddirectly send the notices and a copy of the Petition underRegistered Cover • and a Registered Article Receipt wouldbe sufficient proof of such service.
Sri Lanka Law Reports
120011 3 Sri L.R.
Delivery of such notices and a copy of the Petition to theAgent appointed under Rule 9 of the said ParliamentaryElections Act 1 of 1981.
By posting the notices and a copy of the Petition underRegistered Cover to the address of the aforesaid Agent.However the date of posting must be such that, in theordinary course of post, the letter would be delivered withinten days of the lodging of the Petition.
By notice published in the gazette stating that suchPetition had been presented to the Court of Appeal and thata copy of it may be obtained by the Respondent on demandor upon an application at the Office of the Registrar.
To be delivered at the office of the Registrar for service onthe Respondent – it being incumbent upon the Registrar, ifso requested, to issue a receipt in such form as may beapproved by the President of the Court of Appeal.
Where the Petitioner serves a copy of the Petition andnotices, and obtains the services of the Registrar for serviceon the Respondent directly, such service may be effected in thesame manner as the service of a notice issued by a Court iseffected under the Civil Procedure Code. (Section 356 readwith 59 – 70 of the Civil Procedure Code). This would includeservice by registered post, personal service, substitutedservice, such service being in accordance to the mannerprescribed in the Civil procedure Code.
Whichever mode of service that the Petitioner chose out ofthe several options referred to above, it remains mandatory thatit would be within the time limit of ten days from the lodging ofthe Petition in the Registry of the Court.
Non compliance within the aforesaid prescribed period often days would entitle this Court to reject the Petition.[Chandrakumar v. Kirubakaran and others'2’)
As ex facie it appeared on the Court of Appeal records, thatthere was cause for the Petition to be rejected notice was issuedon the Petitioner. Upon being noticed, the Agent and the Attorney
Rajlndranath v. Commissioner of Elections & others(Shlranne Tllakawardena, J.)
at law for the Petitioner filed a motion dated 26. 02. 2001.According to this motion, notices together with a copy of thePetition had been served on all the Respondents by RegisteredPost on the 02. 11. 2000. The Petitioner had also submitted asproof of posting Registered Article Receipts 4761 to 4774 dated
11. 2000 together with the list referred to therein. Accordingto the motion none of the packages so posted were returned.The obvious inference being that the Respondents had receivedthe notices and Petition.
The motion also adverted to the fact that additionally,notices had been gazetted in the Gazette Extraordinary bearingNo. 1156/43 dated 3rd November 2000, and fourteen copies ofthe Election Petition had been tendered to the Registrar. A copyof such notices had been handed over and had been registeredin the Motion Register (not the Register for Election Petitions)on 06. 11.2000. A scrutiny of the Motion Register substantiatedthis position. The relevant Motion Register bears a correspondingendorsement dated 06. 11. 2000.
This information is however contrary to the Journal Entryof the Registrar dated 01. 01. 2001, where in reply to a queryby Court he had stated that no notices had been tendered tothe Registry. Undoubtedly an irregularity in the procedurefollowed at the Registry had led to an error in the informationfurnished by the Registrar. Election Petitions, notices or motionspertaining to Election Petitions should have been, uponacceptance by the Registry, endorsed in the Elections Register,Inexplicably they had instead been accepted and filed in theGeneral Motion book, and an endorsement made therein.Clearly, the litigant should not suffer the hardship or mistakesdeliberately or otherwise made by the Registry.
I therefore hold that ex Jacle it appears that the Petitionhad been duly Presented to the Registrar in compliance withthe manner prescribed in section 14 of the ParliamentaryElections Act 1 of 1981 as amended.
The Election Petition has been duly presented to the registrar.
RAJINDRANATH v. COMMISSIONER OF ELECTIONS & OTHERS