AKBAR S.P.J.—Aron v. Senanayake.
1936Present: Akbar S.P.J.
ARON v. SENANAYAKE.
In the Matter of the Election Petition in respect of theDedigama Electoral District.
Election petition—Failure to give notice of presentation of petition and noticeof security—Fatal irregularity—Ceylon (State Council Elections) Orderin Council, 1931—Election Petition Rules, 18.
Failure to give notice of the presentation of an election petition andof the nature of the proposed security in the manner required by rule 18of the Election Petition Rules of the Ceylon (State Council Elections)Order in Council, 1931, is a fatal irregularity.
HIS was an election petition Med on March 30, 1936, asking for adeclaration that the election of the respondent- for the Dedigama
Electoral District be held to be void. The respondent by his petitionand affidavit moved for a dismissal of the election petition on the groundthat neither he nor his agent had been served with notice of the presanta-tion of the petition or of the nature of the security nor had notice ofeither kind been published in the Government Gazette as required by rule18 of the Election Petition Rules, 1931.
N. Nadarajah (with him T. S. Fernando), for petitioner.
R. L. Pereira, K.C. (with him H. V. Perera), for respondent.
Cur. adv. vult.
May 25, 1936. Akbar S.P.J.—
The petitioner filed his petition on March 30, 1936, asking for a declara-tion that the election of the respondent be held to be void. On March 31,1936, the respondent filed a writing appointing Mr. S. R. Amerasekera ashis agent and giving an address for service of all notices, under rule 10of the Election (State Council) Petition Rules, 1931. On April 1, 1936,security in the form of a recognizance with two sureties'was tendered tothe Registrar under rule 12. The respondent by his petition andaffidavit dated April 16, 1936, has asked for a dismissal -of the petition on
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AKBAR A.S-P.J.—Aron v. Senanayake.
the ground that neither he nor his agent has been served at any timewith a notice of the presentation of the petition or of the nature of thesecurity and that no notice of either kind was published in any issue ofthe Government Gazette by the petitioner or his agent. Mr. Nadarajahfor the petitioner admitted that no notice of the petition or of the natureof the security was served on the respondent and that no such notice waspublished in the Government Gazette. Rule 18 of the Election PetitionRules, 1931, is explicit that notice of the presentation of the petition andof the nature of the security, accompanied by a copy of the petition shallbe served by the petitioner on the respondent within ten days. The restof the rule goes on to say that such service may be effected by deliveryto the agent, or by posting to the address given under rule 10 in sufficienttime for delivery Within the ten days or in case there is no agent appointedor address gven by publication in the Gazette that a petition had beenpresented and that a copy may be obtained on application at the office ofthe Registrar. The matter has been simplified by the admission ofCounsel that no notice had been served either of the-presentation of thepetition or of the.nature of the security in any of the ways indicated inthe rule; nor is there arty evidence contradicting the respondent’s affidavitin which he states that neither he nor his agent had at any time beenserved with notice, of the presentation of the petition or of the nature ofthe security. It will be noticed that on March 31, 1936, when the respond-ent filed his writing appointing his agent and giving an address forservice only the petition had been filed and that the recognizance wassigned and filed on the next day, namely, April 1, 1936. One would havethought apart from any authority that the provision in rule 18 requiringservice of notice not only of the presentation of the petition but also ofthe nature of the security was imperative and that non-compliance puta stop to any further steps in the matter of the petition. This seems tobe so, for the next rule, viz., rule 19 gives the right to the respondentto object to the recognizance provided he objects in writing within fivedays from the date of service of the notice of the petition and of thenature of the security. Rule 20 giving power to the Election Judge tohear any objection to the security can only refer to the objection mentionedin the preceding rule.
Mr. Nadarajah for the petitioner argued that the English law would beapplicable under section 83 (4) of the Ceylon (State Council Elections)Order in Council, 1931, as this is a matter of procedure or practice whichis not provided for by the order or rules, inasmuch as rule 18 does notprovide for the effect which a non-compliance of that rule regardingservice of notice will entail. He referred to rule 12 (3) which expresslystated that if security was not given as requred by that rule the petitionwas liable to be dismissed with costs and also to rule 22. There is noprovision in the Parliamentary Election Act, 1868, similar to rule 12 (3)and therefore rule 12 (3) may have been specially inserted to make itclear that the security was to be given as provided for in that rule. Asthe Supreme Court indicated in Mendis v. Jayasuriya,1 the rules relatingto security have not been clearly expressed. I do not think any specialenactment in the rules was required regarding the .effect of a distinct
1 33 N. L. R. 121.r
AKBAR A.S.P.J.—Aron v. Senanayake.
non-compliance of any of the steps whch a petitioner had to take and noargument can be drawn from rules 12 (3) and 22 in the sense contendedfor by Mr. Nadarajah.
Section 80 of the Order in Council for instance requires a petition to bepresented within twenty-one days of the date of publication of the resultof the election in the Government Gazette. Can it be contended that anelection petition may be entertained if it is presented after the prescribedtwenty-one days, simply because there is no enactment specially statingthat the petition is to be dismissed if it is not presented within the twenty-one days ? This is the very question which Grove J. put to the Solicitor-General in the case of William v. The Mayor of Tenby1 It is true thatthat was a case of a disputed Municipal election, but .the law applied undersection 13 (4) of 35 and 36 Victoria 60 and rule 2 of the additional generalrules, 1875, was the same as the law under the Parliamentary ElectionsAct, 1868. Grove J. held that the provision relating to the service ofnotice of the presentation of the petition and of the nature of the securitywithin five days after the presentation of it was peremptory, and that itwas a condition precedent for the due presentation of the petition.Lopes J. agreed with Grove J. Mr. Nadarajah relied on the judgment ofMartin B. in Young & another v. Figgins' That was a summons callingon the petitioners of an election petition to show cause why the petitionshould not be struck off the file on the ground that the petitioners com-plained of the conduct of the returning officer and as~section 51 of theParliamentary Elections Act, 1868, provided that where an electionpetition complains of the conduct of a returning officer, such officer shallfor all the purposes of the Act, except the admission of the respondentsin his place, be deemed to be a respondent, the returning officer Wasentitled to notice by virtue of section 8. Martin B. in a short judgment,said that even if the objector whs right in his arguments he should notallow such formal objections to defeat the petition under rule 60 of theParliamentary Election rules.
Mr. Nadarajah argued that as no dismissal of the petition was providedfor when there was an omission to comply with rule 18, this was a castaomissus and that by section 83 (4) of the Order in Council rule 60 of theParliamentary rules was applicable 'and on Baron Martin’s ruling “inYoung &. another v. Figgins (ubi supra) the objection should not be upheld.
I cannot accede to this argument and prefer to follow the judgment of‘Grove and Lopes JJ. in the case cited by the uespondent for severalreasons. In the first place the summons in Young v. Figgins was to takethe whole' petition off the file, including presumably that part .of it againstthe sitting member. In the second place section 51 of-the. ParliamentaryElections Act stated that the returning officer was to be deemed to be arespondent, except for the admission of the respondents in his place.Further, Baron Martin had some doubts of the argument of Counsel forthe returning officer and he said that even if the argument was soundthe objection should not be allowed to defeat the petition, meaning Isuppose the whole petition. The case cited by the respondent was onedecided by a Bench of two Judges and no less a person than the Solicitor-General argued the case for the petitioner. It is true that rule 60 of the1 L. n. 5 C. P. D. 130.2 19 L. T. N. S. 499.
KOCH J.—Abdeen v. J. A. Perera.
Parliamentary Election rules if that applied under section 21 (2) of 35& 36 Victoria Chancery 60 or the similar rule 69 of Municipal Elections(see 12 Halsbury (new ed.) p. 494) was not referred to in the argument,but I cannot construe this omission as an oversight. It is probably arecognition by the Solicitor-General, Sir H. Giffard and the Court thatan objection of the kind raised in the case was something more than aformal objection.
The case of ex parte Coates in In re Skelton (L. R. 5 Chancery Division979) indicates the difference between a formal defect and one of a matterof substance. It was of -the utmost importance for the respondent tohave had notice of the nature of the security so as to enable him to objectto it in case of its insufficiency. _
The petition is dismissed and the petitioner will pay the costs of therespondents.
ARON v. SENANAYAKE