ANTHONY AND OTHERSV.
CHANDRASENA, RETURNING OFFICER AND OTHERS
G.P.S. DE SILVA, C.J.
KULATUNGA, J. ANDPERERA, J.
S.C. APPEAL NO.1/94.
C.A. (PROVINCIAL COUNCILS) ELECTIONPETITION NO. 4/93. .
23RD JUNE 1994.
Election Petition – Provincial Councils Elections Act No. 2 of 1988 – Sections91, 92, 95 and 96 – Non compliance with – the provisions of the Act – allegelapse in counting preference votes – whether the election of an individualcandidate as a member may be challenged – Intention of Parliament.
The Appellants were among 39 candidates who were put forward by thePodujana Eksath Peramuna for the administrative district of Gampaha atthe Western Provincial Councils Elections held in 1993. On the votes polledby the party it became entitled to return 17 members. But on the basis of thepreferences indicated by the electors, the Appellants were among the un-successful candidates. The Returning Officer declared elected 2nd to 18thRespondents from that party. The Appellants filed an Election Petition undersection 95 of the Provincial Councils Elections Act, No. 2 of 1988 read withsection 96 challenging the return of the said Respondents as members onthe ground that the counting of preferences was not done in accordancewith the provisions of the Act; and that the said non – compliance materiallyaffected the result of the election of candidates of the Podujana EksathPeramuna. The Appellants sought a declaration that the election of 2nd to18th Respondents was undue, and a declaration, after a re-scrutiny of thepreference votes for the Party, that the Appellants or any one or more ofthem or any of the unsuccessful Respondents are duly elected as members.The relief thus sought was based on section 92(1) (b) of the Act.
(1) The grounds for the avoidance of the election of a candidate as amember of a Provincial Council are expressly provided by sections 91(1)and 92(2). There are grounds which have relevance to the election andgenerally based on personal conduct of the candidate or his agent. On theother hand, the grounds for the avoidance of the election in respect of any
administrative district are contained in section 92(1) (a) and (b). The schemeof the Act and the language of section 91(1) show that the 'election* re-ferred to therein is the e'ntire election held in an administrative district of aProvince for electing members to the Provincial Council in that province.
(2) Upon the allegation of such non-compliances as are competent undersection 92(1 )(b) Parliament could not have intended to permit an electionPetition where the relief claimed is merely to have the election of a candi-date as a member of the Provincial Council declared void and to haveanother candidate declared duly elected.
Case referred to :
Curtis v. Storm (1889) 22 QBD 513.
AN APPEAL under section 102 of the Provincial Councils Elections ActNo. 2 of 1988 against the order of an Election Judge.
S.C.B. Walgampaya with F.H. Boniface Silva and Vijitha Meegahawatha forAppellants.
K.C. Kamalasabayson, D.S.G. with Kumar Paul S.C. for 1st Respondent.
Cur. adv. vult.
14th July, 1994.
The nine Appellants were among 39 candidates whose names wereset out in the nomination .paper submitted by the Podujana EksathPeramuna for the administrative district of Gampaha at the WesternProvince Provincial Councils Elections held on 17.05.93. On the votespolled by that party it became entitled to return 17 members for thatdistrict. According to the result announced by the 1st Respondent (TheReturning Officer) 2nd to 18th Respondents were declared elected fromthat party, on the basis of preferences indicated by the electors. TheAppellants and 19th to 31st Respondents were unsuccessful.
The Appellants do not challenge the election, so far as the countof the votes for their party in the administrative district*of Gampaha isconcerned. There is also no dispute as regards the quota of memberstheir party was declared entitled to return for that district. However,they allege that the election of any one or more of 2nd to 18th
Respondents is void for non-compliance with the provisions of theProvincial Councils Election Act, No. 2 of 19Q8; that the counting ofpreferences was not done in accordance with the principles laid downin the Act; and that the said non-compliance materially affected theresult of the election of candidates of the Podujana Eksath Peramunaand more particularly the election of the 1st to 9th Appellants or anyone of them. On that basis the Appellants filed an election Petitionunder section 95 of the Act read with section 96 praying for a declarationthat the return of any one or more of the 2nd to 18th Respondents wasundue and for a declaration that the Appellants or any one or more ofthem and any of the 2nd to 31st Respondents are duly elected asmembers of the Western Province, Provincial Council.
The Appellants also prayed for an order on the 1st Respondentdirecting him to rescrutinise the tally sheet and summary sheetsmaintained at the count and to add up and determine according to lawand under the directions of the Election Judge the number of preferencesindicated for each candidate of the Podujana Eksath Peramuna at theelection held in the administrative district Gampaha.
At the hearing of the Election Petition, learned Deputy SolicitorGeneral for the 1 st Respondent raised a preliminary objection that theAppellants are not entitled to the relief sought by them as the Petitionis based on section 92(1 )(b) of the Act which sets out a’ground ofavoidance of the election in respect of the entire administrative districtwhereas the grounds on which the election of a candidate as a memberof the Provincial Council may be declared void on an election Petitionare found in section 92(2).The Election Judge upheld the preliminaryobjection and dismissed the Petition. The Appellants appeal to thisCourt by virtue of section 102 of the Act.
At the hearing before us, learned Counsel for the Appellantssubmitted that the grounds for declaring void the election of a candidateas a Member of a Provincial Council are not limited by section 92(2).He argued that the expression “election" under section 92 (1) connotestwo elections uiz. election of the party and the election of candidates;and this is supported by the definition of "election" in section 129.Under that section "election" means an election held in anadministrative district of a Province for the purpose of electing
members to the Provincial Council established for that Province.Hence, in an election Petition based on the ground of non-compliancewith the provisions of the Act, the Petitioner is not compelled to prayfor the avoidance of the entire election in respect of the administrativedistrict but may pray for the lesser remedy that the election of acandidate as a Member of the Provincial Council is void. Counsel addedthat if this were not possible it would leave an aggrieved party withoutrelief, even in a case where due to a patent error in the counting ofpreference votes a candidate has been wrongly declared elected.Counsel submitted that it is inconceivable that the legislature intendedsuch a situation; hence this Court should construe the statute giving ita sensible meaning. Curtis v. Storm ^
Learned Deputy Solicitor General drew our attention to the schemeof the Act Firstly, section 91 (1) provides for avoidance of the electionof a candidate as a Member by his conviction for any corrupt or illegalpractice. Thus, under the relevant sections of the Act, if at the date ofconviction of a person for such practice he has been elected as amember of a Provincial Council, his election shall be vacated from thedate of such conviction. Secondly, section 92 provides for avoidanceof election on election Petition. Under section 92(1) the election inrespect of any administrative district shall be declared to be void onthe grounds of general bribery etc. or non compliance with the provisionsof the Act relating to elections as provided by sections 92(1 )(a) and(b), respectively. The election can be avoided on any such ground if itis proved inter alia that it has materially affected the result of theelection.
Under section 92(2) the election of a candidate as a Member ofthe Provincial Council shall be declared void on the grounds set outin paragraphs (a), (b), (c) and (d) thereof namely, the commission of acorrupt or illegal practice by the candidate or his agent, canvassingthrough an agent who has been convicted of a corrupt practice orsubjected to civic disability in terms of Article 81 of the Constitutionor where the candidate was, at the time of his election, a persondisqualified for election as a Member.
Section 96 sets out the reliefs which may be claimed in an electionPetition, namely:
a declaration that the election in respect of any administrative dis-trict is void;
a declaration that the return of any person elected was undue;
a declaration that any candidate was duly elected and ought tohave been returned.
Under section 29 "election” means an election held in anadministrative district of a Province for the purpose of electingmembers to the Provincial Council established for that Province.
The Deputy Solicitor General submitted that the use of the word"purpose" in the above definition is of significance. In terms of thisdefinition "election” cannot mean election of a member but it is electionheld for the purpose of electing members; hence in section 92(1)the word “election" necessarily refers to the entirety of the electionand not the election of a member.
There is force in the submissions of the Deputy Solicitor General.The grounds for the avoidance of the election of a member of theProvincial Council (whether by conviction or on election Petition) areexpressly provided by sections 91(1) and 92(2), respectively. Theseare grounds which have relevance to the purity of the election andgenerally based on the personal conduct of the candidate or (jis agent.
On the other hand, the grounds for the avoidance of the election inrespect of any administrative district are contained in sections 92(1)(a) and (b). The Scheme of the Act and the language of section 92(1)show that the "election" referred to therein is the entire election held inan administrative district of a Province for the purpose of electingmembers to the Provincial Council for that Province. Thus in terms ofsection 3(2), every administrative district in a province shall, for thepurpose of elections to the Provincial Council established for thatProvince, constitute an electoral area.The Western Province, ProvincialCouncil has as its electoral areas the administrative districts ofGampaha, Colombo and Kalutara.The Appellants' Petition is basedon a ground for challenging the election in respect of the administrativedistrict of Gampaha, which in the context must refer to the entire electionand not the election of a member.
The nature of the grounds of avoidance under section 92(1) alsoindicate that the said election refers to the avoidance of the entireelection in the administrative district; for grounds such as generalbribery, general treating or general intimidation or non-compliance withthe provisions of the Act which, having regard to their magnitude orimplications, affect the result of the election must logically vitiate theentire election in the administrative district. If so, the proper relief tobe claimed in the instant case on the ground of such non-complianceshould be a declaration that the election in respect of the administrativeDistrict of Gampaha is void. I find that the total number of preferencevotes for the candidates of the Podujana Eksath Peramuna is 970,280preferences. The prayer for a rescrutiny involves all such preferences.If there were irregularities which merit rescrutiny of so many preferences,it is probable that there were similar irregularities affecting the candidatesof the other political parties as well at the said election. In fact all ofthem have been made parties to the Petition with the result that thereare 226 respondents. So it seems that on the basis of the Appellantsallegations also, they ought to have prayed for a declaration that theentire election in the district is void.
I am of the view that upon the allegation of such non-compliancesas are competent under section 92(1 )(b) Parliament could not haveintended to permit an election Petition where the relief claimed is merelyto have the election of a candidate as a member of the ProvincialCouncil declared void and to have another candidate declared dulyelected. We cannot under the guise of Interpretation, read such meaninginto the said section. As indicated in an earlier part of this judgmentthe language of section 92(1) itself is against the construction urgedon behalf of the Appellants, in particular when such language iscontrasted with the language of section 92(2).
For the foregoing reasons, I dismiss the appeal and affirm thejudgment of the Election Judge with costs fixed at Rs. 1000/- payableto the 1st Respondent.
G.P.S. DE SILVA, C.J. – I agree.
PERERA, J. -1 agree.
ANTHONY AND OTHERS V. CHANDRASENA, RETURNING OFFICER AND OTHERS