018-NLR-NLR-V-30-APPUHAMY-v.-THAINE.pdf
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Present: Lyall Grant J.
In the Matter of an Application for a Mandamus on theGovernment Agent, Western Province.
APPUHAMY v. THAINE.Mandamus—Local option poll—Elimination of voters who have died. or left the Island—Decision of presiding officer.
Where an application was made to the presiding officer at alocal option poll to eliminate the names of certain persons fromthe voters’ list on the ground that they were dead or had left theIsland, and where the presiding officer refused without proof ofthe facts to eliminate the names in determining the proportion ofrecorded votes to the number on the voters’ list,—' .
Held, that no mandamus would lie to review the decision Of thepresiding officer.
A
PPLICATION for a writ of mandamus on the GovernmentAgent, Western Province. The application was made by a
voter on the voters’ list made for the local option poll for the SanSebastian ward of the city of Colombo. The mandamus asked foran order on the respondent to declare that the percentage of votesnecessary for the abolition of certain licences was cast at a pollheld on November 26, 1927.
Arulanandan (with Gunasekere), for applicant.
Obeyesekera, J. E. M., C.C., for respondent.
March 6, 1928. Lyall Grant J.—
This is an application for a writ of mandamus on the GovernmentAgent, Western Province. The application is made by one D. J. S.Paranayapa Appuhamy, a voter on the list of voters made for thelocal option poll for the San Sebastian ward of the Municipality ofColombo. The mandamus asked for is an order on the respondentto declare that the percentage of votes necessary "for the abolitionof certain licences was cast at a poll held on November 26, 1927.
By Excise Notification No. 146 made under Excise Ordinance,No. 8 of 1912, and dated August 14, 1925, certain rules werepromulgated for the conduct of voting by ballot for or againstthe existence of arrack, toddy, and foreign liquor taverns, &c.,in different areas. These areas in Colombo corresponded to thecity wards.
. The second of these rules provides that a local option poll maybe held in any area on the application of a certain number of voters.
10 3. K. 9487 (11/46)1988.
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1928.
LyaixG&aut J.
/» the Matterof an Ap-pUeation forMandamus
Where such an application has been made, rule 5 provides thatthe Government Agent shall cause a preliminary list of all personsentitled to vote at such elections to be prepared on or before May 15,that the list shall be available for inspection by the public, thatobjections to and claims for .the inclusion of names in the list shallbe made and received up to and including May 31, and that theGovernment Agent shall investigate all such claims and objections.
After this inspection it is the duty of the Government Agent topost on the Kachcheri notice board on or before June 30 a certifiedcopy of the final list.
The rule proceeds :—
“ No names shall be added to or struck out from such final listafter such publication and the local option poll shall beheld on such lists, which shall be final and conclusive forall the purppses of these rules.”
Rule 8 provides that—
“ If at a local option poll in an area within the Municipality ofColombo 51 per cent, of the final list of voters in the areavote for the abolition of the licences, the licences shallbe abolished …”
“ The names of voters who before the holding of the poll havedied or left the Island, and the names of those who at thetime of the ballot are in jail or are prevented by operationof law from being present at the poll shall not be takeninto consideration in determining the proportion of votesrecorded to the number of voters on the list.”
Rule 19 provides that the votes shall be counted as soon aspossible after the close of the ballot and the result declared imme-diately after it has been ascertained.
It is not disputed by the present applicant that the list for SanSebastian ward was properly prepared. It is alleged, however,that certain names of voters who at the date of the poll had diedor left the Island were taken into consideration in determining theproportion of votes recorded to the number of voters on the roll.
From the affidavits furnished both by the applicant and theGovernment Agent, Western Province, it appears that some daysbefore the poll the applicant wrote to the Government Agentenclosing a list of voters who had either died or left the Island.
The Government Agent replied (1) that the time for objectionshad lapsed, and (2) that he could only eliminate the names of thedead voters and those who had left the Island, provided thatsatisfactory proof thereof was produced before the presiding officer,that is to say, at the poll.
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On the day of the poll application was made to the assistant tothe presiding officer to leave out of consideration the names of Lvaixpersons alleged to be dead 01 to have left the Island. After inquiry Obamtby him the name of one person proved to be dead and the names jnof four persons absent from the Island were excluded from the list of an Aj»-by the presiding officer.L™
The Assistant Government Agent, who was the presiding officer,also excluded the names of 58 other persons whose names had beenduplicated on the list.
The total number on the voters’ list was 2,232. The presidingofficer at the request of the secretary of the Local Option Committeeomitted 63 of these, as enumerated above, for the purposes of rule 9.The total number of votes cast for abolition of licences was 1,066.
The petitioners aver that in addition to those names struck outby the presiding officer there were 78 other names which oughtnot to have been reckoned, and they^have produced affidavits toshow that 28 of these additional persons were dead at the date ofthe poll and 58 out of the Island and that one name appearedthree times on the list. They also aver that if these names areexcluded the total on the list is reduced to 2,081, and that this beingthe proper number to be reckoned under rule 9 they have actuallypolled a percentage of 51 -3.
It was argued on behalf of the applicant that rule 9 cast uponthe Government Agent an absolute duty to omit from considerationin determining the proportion of recorded votes to the number ofvoters on the list the names of all voters who at the date of the pollhad died or left the Island or were otherwise under disability.
They argued further that if it were shown to the satisfaction of theCourt that the number of voters reckoned by the GovernmentAgent was in fact greater than the number he ought to havereckoned, this Court could make the necessary alteration in thenumbers and could order the Government Agent to declare theresult of the poll in accordance with those numbers.
If its strict meaning is to be given to rule 9 it is obvious that therecould be no finality in any declaration of a poll. Rule 19, however,provides that a declaration of a poll should be made as' soon aspossible, and no provision is made for its subsequent correction.
It is only reasonable to suppose that the Legislature intendedthat all questions arising out of rule 9 should be settled on the dayof the poll. A comparison of rules 9 and 19 makes this clear.The rules are completely silent on the question of how the Govern-ment Agent is to ascertain the number of dead and absent voters.The ascertainment of the facts referred to in rule 9 constitutes ajudicial act. The Government Agent has to weigh evidence andto give a decision on facts.
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The judicial act has in the present case been performed by theGovernment Agent in a way which seems not unreasonable, and insuch circumstances as mandamus is not granted.
In the Matter A mandamus is only granted to compel performance of a dutyj^cation^for a judicial character where there has been a refusal to performMandamus it in any way, mid not. where it has been done in one way ratherthan in another, even though the inethod pursued may have beenemineous. Still less will the Court take upon itself to upset whatamounts to a judicial deoision based upon evidence and to direct apublic officer to come to- an opposite decision upon evidence whichwas not before him. See Short on Mandamus, p. 256.
The application is refused, with costs.
1828.
liYAIAQbast J.
Rids discharged.
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