ADIKARI v. DISSANAYAKE AND OTHERS

021-SLLR-SLLR-2001-V-3-ADIKARI-v.-DISSANAYAKE-AND-OTHERS.pdf


ADIKARI
v.DISSANAYAKE AND OTHERS
COURT OF APPEALWEERASURIYA, J. (P/CA)
C.A. NO. 7/ 2000JUNE 14th 2001JULY 16th 2001
Election Petition-Parliamentary Elections Act No. 1 oj 1981 – S. 92(1)(2).S. 96. S. 108 – Scope and grounds – Election Rule No. 14 – ConstitutionArticle 81.
The Petitioner who was a candidate of the Peoples Alliance (R A) forParliamentary Elections held for the administrative district ofAnuradhapura, sought relief on the ground that there was non compliancewith the provisions of Act No. 1 of 1981, and sought a partial avoidance ofthe election in respect of the counting of preferential votes for the candidatesof the R A.
The Petitioner prayed for a scrutiny of the ballot papers and depending onthis scrutiny the Petitioner sought a declaration in accordance with theresult of such scrutiny. The 1st Respondent contended that –
The petitioner cannot have and maintain the Petition as the relief soughtdoes not come within the ambit of S. 96.
There was failure to comply with Parliamentary Rule 14 – 4m schedule.
No adequate grounds are disclosed and
That the Petition is out of time.
Held :
It appears that, the grievance of the Petitioner was that some of thepreferential votes cast in his favour had been added to the 1* and 5thRespondents during the process of counting.
If the Petitioner relies on S. 92( 1 )b the only relief he could obtainwould be a declaration that the election in respect of the district isvoid – this is not the relief prayed for. As the Petitioner has sought torely on grounds of avoidance spelt out in S. 92(2) the Petitioner isprlma facie not entitled to the relief.
CA
Adikari v. Dissanayake and others
(Weerasurlya, J. PICA)
133
The Petitioner is seeking a review of the composition of the seatssecured by the R A.
S. 92(2) provides for a declaration that the election of a candidate bedeclared void. This relief could be granted only upon circumstancesset out in S. 92(a)(b), (c) and (d). The petitioner has not pleaded anyof the above grounds, he is not entitled to pray for a declaration thatthe return of the 5th Respondent was undue.
In terms of S. 96, the Petitioner is not entitled to a scrutiny of theballot papers.
Election Petition in terms of the Parliamentary Elections Act No. 10 of
1981.
Cases referred to :
1. Alexander u. Chandrananda de Silva – 1996 2 SLR 301
Dr. Jayatissa de Costa with D. P. P. Dassanayake and As oka Fernando
for the Petitioner.
Wijedasa Rajapakse P C.. with Kapila Liyanagamage for 1* Respondent.
K. Thiranagama with Amarasena Hettlge for 5th Respondent.
PA. Ratnayake, D. S. G.. with M. R. Ameen S. C., for 176 and 177th
Respondents.
Cur. adv. vult.
August 24, 2001.
WEERASURIYA, J. P/CAThis matter was taken up for inquiry on account of thefollowing preliminary objection raised by the 1st respondentand 166th and 167th respondent
The preliminary objections raised by the 1st respondentread as follows:
The petitioner cannot have and maintain this petition forthe reason that the relief sought does not come within theambit of Section 96 of the Parliamentary Elections Act.
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The Petitioner has failed to comply with the parliamentaryElections Rule No. 14 set out in the 4th schedule.
The Petitioner does not disclose adequate ground to obtainthe relief sought for; and
The petition is out of time.
The preliminary objection raised by the 176th and 177
respondents are as follows:
That the Election Petition had not been filed within 21 days
from 13. 10. 2000 being the date of publication of the resultof the election in the gazette as stipulated in Section 108 ofthe Parliamentary Elections Act No. 1 of 1981.
That the petitioner is not entitled to relief prayed for in thepetition since in circumstances set out in the petition theonly relief the petitioner can pray is a declaration that theelection in respect of the entire administrative district ofAnuradhapura be declared void in terms of Section 92( 1)of the Parliamentary Elections Act No. 1 of 1981 read withSection 96 of the said Act and the petitioner has failed topray for this relief.
That in any event the petitioner is not entitled to the reliefprayed for in paragraph (b) to the prayer to the petition,since the petitioner has not pleaded any of the grounds setin Section 92 (2) of the Parliamentary Elections Act No. 1 of1981; and
That in any event the petitioner is not entitled to the reliefprayed for in paragraphs (a), (d) (e) and (0 to the prayer tothe petition, since they are not among the reliefs that maybe prayed for in terms of Section 96 of the ParliamentaryElections Act No. 1 of 1981.
Items (2) and (4) of the objections of the 1st respondent anditem (A) of the objections of 166th and 167th respondents
CA
Adlkarl v. Dlssanayake and others
(Weerasurlya, J. PICA)
135
are not sustainable for the reason that the petitioner hascomplied with the requirements of the periods relating tothe institution of the petition and notice of presentation.
It is to be observed that items (1) and (3) in the objectionsof the 1st respondent correspond to items (A) and (D) of theobjections of the 176th and 177th respondents. Those mainlyrelate to the question whether the petitioner has correctlyinvoked the provisions of the Parliamentary Elections Act forseeking relief.
In order to appreciate the nature and the content of theaforesaid objections it would be useful to examine Section 92and 96 of the Parliamentary Elections Act No. 1 of 1981.
92 (1) – The election in respect of any electoral district shall bedeclared to be void on an election petition on any of thefollowing grounds which may be proved to the satisfactionfor the Election Judge namely –
that any reason of general bribery, general treating,or general intimidation or other misconduct or othercircumstances whether similar to those enumeratedbefore or not a section of electors was preventedfrom voting for the recognized political party orindependent group which it preferred and therebymaterially affected the result of the elections;
non-compliance with the provisions of this Act relatingto elections if it appears that the election was notconducted in accordance with the principles laid downin such provisions and that such non – compliancematerially affected the result of the election.
The election of candidate as a member shall be declared tobe void on an election petition on any of the followinggrounds which may be proved to the satisfaction of theElection Judge, namely –
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that a corrupt or illegal practice was committed inconnection with the election by the candidate or withhis knowledge or consent or by any agent of thecandidate;
that the candidate personally engaged a person as acanvasser or agent or speak on his behalf knowingthat such person had within seven years previous tosuch engagement been found guilty of a corruptpractice under the law relating to the election of thePresident or the law relating to referendum or underthe Ceylon (Parliamentary Elections) order in Council1946 or under this Act by a Court of Competentjurisdiction or by the report of an Election Judge.
that the candidate personally engaged a person as acanvasser or agent, or to speak on his behalf knowingthat such person had been a person on whom civicdisability had been imposed by a resolution passedby the Parliament in terms of Article 81 of theConstitution and the periods of such civic disabilityspecified on such resolution had not expired.
that the candidate was at the time of his election aperson disqualified for election as a member.
Section 96 of the Parliamentary Elections Act reads asfollows:
“96 – All or any of the following reliefs to which the petitionermay be entitled may be claimed in an election petition namely:
a declaration that the election in respect any electoral districtis void:
a declaration that the return of any person elected wasundue;
a declaration that any candidate was duly elected and oughtto have been returned.
CA
Adtkari u. Dlssanayake and others
(Weerasuriya, J. P/CA)
137
Learned D. S. G. for the 176th and 177th respondent contended –
that since the petitioner has relied upon noncompliancewith the provisions of the Parliamentary Elections Act withinthe meaning of Section 92( 1) (b) the only relief that can beprayed for is a declaration that the election in respect of theelectoral district in question be declared void in terms ofSection 92 (1).
that since the petitioner has prayed for relief for partialavoidance of the election for the said electoral district to theextent of counting of the preferences indicated by the votersfor the candidates nominated by the People’s Alliance, thispetition is misconceived in law;
that inasmuch as the petitioner has prayed for a declarationthat the return of the 5th respondent elected was unduewhich could be grounded in the circumstances set out inparagraphs (a), (b), (c) and (d) of Section 92(2) of the Act inthe absence of any such grounds pleaded in the petitionthe petitioner is not entitled to grant of such relief.
that the petitioner is not entitled to pray for a scrutiny ofballot papers in terms of Section 96 of the Act.
The petitioner was a candidate of the People's Alliance forthe Parliamentary Elections held on 10. 10. 2000, for theadministrative district of Anuradhapura. The People’s Alliancesecured 5 seats and the United National party 3 Seats and 1st -5th respondents were declared elected from People’s Alliance.The petitioner states that the 5th respondent secured the lowestnumber of preferential votes namely 33, 738 and that he secured28485 preferential votes.
The petitioner has sought relief on the ground that therewas non-compliance with the provisions of the ParliamentaryElections Act No. 1 of 1981. He has enumerated the incidentsin respect of acts of non – compliance in detail in paragraph 11
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of his plaint. On a perusal of the petition, it would appear thatthe grievance of the petitioner was that some of the preferentialvotes cast in his favour had been added to the Is' and 5,hrespondents during the process of counting.
Section 92 (1) (a) and (b) of the Parliamentary ElectionsAct provides for an avoidance of an election in respect of anyelectoral district on proof of the following grounds to thesatisfaction of the election Judge.
That by reason, general bribery, general treating or generalintimidation or other misconduct or other circumstances asection of the voters were prevented from voting for therecognized political party or the independent group andthereby materially affected the election.
That non – compliance with the Provisions of the Act, if itappears that the election was not conducted in accordancewith the principles laid in such provisions and that suchnon – compliance materially affected the result of the election.
If the petitioner relied upon the ground enumerated inSection 92(1) (b), the only relief he could obtain would be adeclaration that election in respect of the district is void. Butadmittedly that is not the relief he has intended to seek as seenfrom his averments in the other paragraphs of his petition.
Inasmuch as the petitioner has sought to rely on groundsof avoidance spelt out in Section 92(2) of the ParliamentaryElections Act. the petitioner is prima facie not endtled to thatrelief.
The Petitioner has sought a partial avoidance of the electionin respect of the counting of preferential votes for the candidatesof the People’s Alliance. Therefore, the petitioner is only seekinga review of the composition of these seats secured by the People'sAlliance.
CA
Adlkaii v. Dissanayake and others
(Weeraswtya, J. P/CA)
139
The relief sought by the Petitioner on this score appear tobe two fold.
a declaration that the return of the 5th respondent electedwas undue.
A declaration that the petitioner was duly elected or oughtto have been returned as a member of Parliament for theAnuradhapura Electoral District.
Section 92 (2) of the Act provides for a declaration that theelection of a candidate be declared void. It is to be observedthat the relief could be granted only upon the circumstancesset out in section 92 (a), (b) (c) and (d) of the Act. These aresituations where allegations of having committed corrupt orillegal practices or where a candidate was disqualified forelection or where he has engaged a person as a canvasser oragent who had been found guilty of a corrupt practice or hadbeen deprived of civic rights. But the petitioner neither pleadedany of these ground in his petition nor sought to rely on themin his petition. In the circumstances, the petitioner is not entitledto pray for a declaration that the return of the 5th respondentwas undue (vide Alexander u. Chandrananda de Silva1”)
The Petitioner in paragraph (f) of the prayer to the petitionhas prayed for a scrutiny of the ballot papers and dependingon the outcome of this scrutiny the petitioner in paragraph (d)of the prayer to the petition has prayed for a declaration inaccordance with the result of such scrutiny.
Section 96 of the Parliamentary Elections Act specifies thereliefs that may be prayed for in an election petition. Indiscussing this issue reference to section 80 of the Ceylon(Parliamentary Elections) Order in Council would be usefulto understand the present provisions. Section 80 (d) of theCeylon Parliamentary Elections) Order in Council providedfor a scrutiny as one of the reliefs that can be prayed for inan election petition.
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Section 80 of the Ceylon (Parliamentary Elections) Orderin Council has been repealed by Section 96 of the ParliamentaryElections Act, but nevertheless as a whole, it correspond torepealed Section 80 of the earlier order in Council. But thesignificant factor is that there is a total omission of this relief insection 96 of the Parliamentary Elections Act. Therefore, it ismanifestly clear that the petitioner is not entitled to a scrutinyof the ballot papers.
Therefore, the petitioner is not entitled prima facie to seekthe reliefs he has sought in terms of prayers (A) to (F) in hispetition.
I dismiss this petition with costs.
President of The Court oj Appeal.