Chandrakumar v. Klrubakaran (A. Da Z. Gunawardana. J.)
V.KIRUBAKARAN AND OTHERS
COURT OF APPEAL
A. DE Z. GUNAWARDANA, J.
ELECTION PETITION NO. 01 OF 1988JUNE 16, 1989
Election petition – Time limit for filing election petition r Section 108(1) of theProvincial Councils Elections Act – Notice of presentation of. an election petition -Rule 14 of Provincial Council Election Petition Rules of 1989 – Whether affidavit isrequired in respect of allegations of corrupt practices in proof of charge of generalintimidation – Section 98(d) of Provincial Councils Elections Act.
The petitioner sought to have the election of 1-11 respondents to the Provincial,Council of Northern and Eastern Provinces set aside on two grounds:
general intimidation, misconduct and other circumstances;
,(2) non-compliance, with provisions of the Provincial Councils Elections Act.
Three preliminary objections were taken to the hearing of the election petition,namely;
that the election petition had been filed out of time,
that notice of jaresentation of petition had not been given within the timespecified in Rule '14 of the Provincial Council Election Petition Rules,
that an affidavit had not been filed along with the petition in terms Of section98(d) of the Provincial Councils Elections Act.
The failure of the petitioner to file the petition within 21 days from the date ofthe publication of the results of the election in the Gazette, was a fatal
– irregularity. The fact that the Registrar and the Assistant Registrar were notavailable in office on the days the petition should have been filed would notamount to the office of the Registrar being "closed," as contemplated undersection 8(1) of the Interpretation Ordinance.
The 10 days time limit, in this instance 14 days, prescribed by Rule 14(1) ofthe Provincial Councils Election Petition Rules for service of notice ofpresentation of election petition on the respondents is mandatory andapplies to every mode of service of notice $et out under paragraphs 1(a)and (b) and paragraph 2. The mere delivery of notice to the Registrar withinthe 10 day limit, in this instance 14 days, is not sufficient compliance withRule 14. The actual service on the respondents must be effected’within the •'time limit specified in paragraph 1 of Rule 14.
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An affidavit is not required to be filed in support of the allegations of corruptpractices, where such practices have been alleged merely for the purpose ofproving the charge of general intimidation.
Cases referred to:
Nahayakkara vs. Kiriella and others  2 Sri LR 391
P. A Cooray vs. H. J. C. Fernando 54 NLR 400, 405
Abeywardene vs. Ariya Bulegoda and two others  1 Sri LR 86, 99
ELECTION PETITION to have election to Provincial Council set aside.
S.C. Crossette Thambiah with R. Gunaratne and S. Peiris instructed by PushpaAmaratunga for petitioner.
J. C. T. Kotalawala with S. R. de Silva instructed by R. Abeyratne for 1 to 8respondents.
R. Jayatilake, D.S.G. with F. N. Gunawardana, S.C. instructed by Miss. A. Shanmuga-nathan, A.S.A for 12th respondent.
A. H. M. Ashroff with Miss Aruipragasam for 13 to 15 respondents.
Cur. adv. vult.
July 20, 1989.
A. DE Z. GUNAWARDANA, J.
The petitioner who was a .candidate at the Election held, on19.11.1989 for election of Members to the Northern and EasternProvinces Provincial Council, has filed this Election Petition prayingthat the said election be declared void in respect of the AdministrativeDistrict of Batticaloa. In paragraph 6 of his petition he urges generalintimidation, misconduct and other circumstances as grounds forsetting aside the said election. In addition, in paragraph 8 he pleadsthe non-compliance with the provisions of the Provincial CouncilsElections Act No. 2 of '1988 as another ground for avoiding the saidelection. He has cited as respondents Members who were elected as1 to 11 respondents. It later transpired that 9 to 11 respondents haveceased to be Members of the said Provincial Council, and in theirplace 13-15 respondents were added, after notice published in theGazette by the Registrar of this Court, in terms of Rule 29(2) of theProvincial Councils Election Petition Rules of 1989. The 12threspondent was the Returning Officer for the Administrative District ofBatticaloa at the said Election.
Chandrakumar v. Kirubakaran (A. Da Z. Gunawardana, J.)
At the hearing of this petition all the respondents took up ax preliminary objection viz. that the petition has been filed in the Courtof Appeal, out of time. In addition 1 to 8 respondents and 13-15added respondents took up the objection that notice of presentationof petition had not been given within the time specified in Rule 14 ofthe Provincial Councils Election Petition Rules, and thereby thepetitioner has not complied with the provisions of Rule 14. A thirdobjection was raised by the Counsel for the 1 to 8 respondents,namely, that there was a fatal irregularity in hot filing an affidavit withthe petition as required under section 98(d) of the Provincial CouncilsElection Act, as the petition disclosed corrupt practices.
First I would deal with the preliminary objection that the petition hasbeen filed out of time. It is common ground that the said election washeld on 19.11.88 and that the results of the said election werepublished by the Commissioner of Elections, in Gazette ExtraordinaryNo. 534/2 dated 28.11.1988, declaring that the 1 to 11 respondentshave been duly elected as Members of the said Council. The presentpetition challenging the said election had been filed in the Court ofAppeal on 21.12.88. This is evidenced by the date stamp on thepetition and-the Journal Entry dated 21.12.88. According to section108(1) of the Provincial Councils Elections Act the petition has to “bepresented within 21 days of the date of publication of the results ofthe election in the Gazette.” It was contended by the learned DeputySolicitor General on behalf of the 12th respondent that the last dateon which the petition would have been filed is 18.12.1988, which is aSunday, and therefore should have been filed on the 19th. It waspointed out that this has not been complied with, and in fact, thepetition had been filed on 21.12.88, which is 24 days after thepublication of the results in the Gazette. The learned Counsel for the12th respondent drew the attention of Court to section 8(4) of theInterpretation Ordinance. He submitted this being a time periodexceeding 6 days, Sundays and public holidays will have to beincluded in the computation of the time limit as provided for in section8(3) of the Interpretation Ordiance. He added that provision in section108(1) of the Provincial Councils Election Act is a mandatoryprovision and the words used there are, “shall be presented wjthin21 days” and therefore the Court has no discretion in the matter.
Counsel for the petitioner contended that the petition could not befiled on the 19th or 20th of December 1988 as the Registrar of the
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Court of Appeal who normally accepts election petitions was notavailable and even the Assistant Registrar of the Court of Appeal wasnot available. This he submitted was evidenced by the affidavit filedof record, by the registered Attorney-at-Law for the petitioner, whichis dated 4.1.1989. According to the Counsel, petition was filed on21.12.1988 with the Asst. Registrar and even on that date theRegistrar who normally accepts election petitions was not available.In the circumstances, he submitted that it would tantamount to theoffice being closed on 19th and the 20th of December 1988. He citedsection 8(1) of the Interpretation Ordinance in support of hiscontention that although the office of the Registrar of the Court ofAppeal was not officially closed on those two days, since theAttorney-at-Law for the petitioner was unable to transact the businessthat she wanted to be done on that day, it would amount to the officebeing “closed.”
Learned Deputy Solicitor General for the 12th respondent pointedout that under FJule 3(1) of the Provincial Councils Election PetitionRules, there is no requirement that the petition should be handedover to the Registrar. Rule 3(1) states,
"the presentation of an election petition shall be made bydelivering it at the office of the Registrar, and the Registrar or theofficer of his department to whom the petition is delivered shall, ifrequired, give a receipt in the following form:"
He further submitted that 19th and 20th of December 1988 were notpublic holidays and the office of the Registrar of the Court of Appealwas open for normal business.
The Counsel for the 1 to 8 respondents submitted that theAttorney-at-Law for the petitioner has not shown due diligence, andthat if she was unable to present the petition to an officer at theRegistry she should have' made representations to a higher official oreven to the President of the Court of Appeal in view of the urgencyof the matter in hand.
Counsel for the added respondents submitted that there is noevidence to show that normal routine of the office of the Registrar ofthe Court of Appeal had come to a stand-still and the mere fact thatthe Registrar was not available is. not sufficient reason for thepetitioner not to have filed the petition in time. The learned Counselalso pointed out that the affidavit filed by the Attorney-at-Law for the
Chandrakumar v. Kirubakaran (A. Da Z. Gunawardana, J.)
petitioner is belated, inthat it had been'filed on the 4th January,1989.
It is seen from the provision in section 8(1) of the InterpretationOrdinance that where a person is allowed to do any act or take anyproceedings in Court or office, and the last day of the limited time isa day on which the Court or office is closed, then the act orproceedings can be done or taken on the next day such Court oroffice is open. The word “closed" had been used in the said sectionas opposed to the word “open”, because it is stated there that an actor proceedings taken on the next date on which court or office isopen is considered to have been done or taken in due . time. It iscommon ground that the office of the Registrar of the Court of Appealwas literally and physically open for transaction of official functions onthe 19th and 20th of December, 1988. For this Court to hold thatoffice of the Registry of Court of Appeal is "closed", because theRegistrar or the Assistant Registrar who normally accepis electionpetitions were not available in office on those days, to acceptAthepetition of the petitioner, would amount to giving an artificial meaningto the word "closed". In my .view such an extension of the meaningor interpretation of the word is not warranted in law. Therefore, I holdthat the petitioner has failed to file the said election petition within thestipulated time in section 108(1) of the Provicial Councils ElectionAct. The petitioner's failure to do so is a fatal defect. Therefore, Iuphold the objection taken on this ground.
The second preliminary objection taken to the hearing of this.petition was that the petitioner has failed to comply with Rule 14 ofthe Provincial Councils Election Petition Rules in that the petitionerhas failed to serve notices of the presentation.of the petition to therespondents, within 14 days. Rule 14(1) of the Provincial CouncilsElection Petition Rules of 1989 states as follows:
"14 (1) Notice of the presentation of a petition, accompanied bya copy thereof shall within ten days of the presentation of thepetition –
be served by the petitioner on the respondents; 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 delivered
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shall, if required, give a receipt in such form as may beapproved by the President of the Court of Appeal.
Provided that where an election petition, in respect of anelection held under the Act has been presented to the Court ofAppeal, prior to the date on which these rules come intooperation, the petitioner shall be deemed to have complied withthe provisions of this paragraph if he serves or delivers, asrequired by this paragraph, notice of presentation of the petition,within a period of fourteen days from the date on which theserules come into operation.
The service under paragraph (1) of the presentation of apetition and copy thereof by the petitioner on the respondent maybe effected either by delivering such notice and copy to the agentappointed by the respondent under rule 9 or by posting them in aregistered letter to the address given under rule 9 at such timethat, in the ordinary course of post, the letter would be delivered.within the time above mentioned, or by a notice published in theGazette stating that such petition has been presented and that acopy of it may 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 the office ofthe Registrar for service on-the respondent, such service may beeffected in the same manner as the service of a notice issued bya court is effected under the Civil Procedure Code.
It was contended on behalf of the 1 to 8 respondents that Rule 14contemplates several modes of service of notice of presentation ofpetition and the said respondents have not been served with the saidnotices under any of those modes of service. Therefore there is atotal failure on the part of the petitioner to comply with Rule 14, whichhe submitted was a fatal irregularity. Hence the petition should bedismissed in limine.
The Counsel for the added respondents also supported the saidobjection.
Counsel for the petitioner submitted that the petitioner has resortedto four ways of giving- notice of presentation with a copy of thepetition-to the respondents. Firstly by delivering the said notices
Chandrakumar v. Kirubakaran (A Da Z. Gunawardana, J.)
along with petition at the office of the Registrar of the Court of Appealon 3.2.89, as evidenced by Journal Entry of the said date: Thisdelivery he pointed out was within 14 days of the said rules cominginto force, as required under proviso to Rule 14. Secondly, bypublishing a notice in the Gazette dated 17.2.89 giving notice ofpresentation of petition under Rule 14. Thirdly the said notices havebeen sent to the respondents under registered cover and the datestamp on the photo-copy of the registered article receipt filed qfrecord appears to be of 2.2.89. Fourthly a notice had been publishedin the “Dinapathi" Newspaper dated 29.3.89 giving notice of thepresentation of the petition: It is to be noted that only the first threemethods are the recognized modes of-service in terms of Rule 14,The publication in the newspapers is not contemplated under Rule14, and it would be irrelevant to consider that mode.
In regard to the delivery of the said notices to the Registrar to beserved on the respondents in terms of Rule 14(1 )(b) the Counsel forthe petitioner submitted, that, what is contemplated in that sub-paragraph is the delivery of the said notice within 14 days to theRegistrar and the Registrar should get the notices served through theFiscal within a reasonable time. This, he contended would besufficient compliance with the requirement of Rule 14(1)(b), as theservice of the said notice on the respondent through the Registrar isa matter beyond the control of the petitioner. The Counsel pointedout that although efforts were made by the Registrar to serve the saidnotice on 1 to 8 respondents through the Fiscal, those attempts werenot successful. It is because of the failure of this mode of service thatthe petitioner resorted to other modes of giving notice to therespondents.
The question that has to be considered is whether the meredelivery of the said notices to the'office of the Registrar within 14days of the said-rules coming into force is sufficient compliance withRule 14. The Counsel for the petitioner contended that the time limitcontained in paragraph 1 of Ruie 14 is not applicable to the serviceof the said notices on the respondents by the Fiscal and was onlyapplicable to the period within which the said notices have to bedelivered at the office of the Registrar, to . be served on therespondents.
When one examines the provisions of Rule 14, it is clear that thepurpose of Rule 14 is to give expeditious notice to the respondents of
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the filing of the election petition, so that they may be alerted toprepare their defence and take any other necessary steps. This is thereason why, in my view, a short period of only 10 days, in thisinstance 14 days, has been specified. Therefore the delivery of thesaid notices at the office of the Registrar could only be a halfmeasure, and would not achieve that objective. Furthermore, themere delivery of the notices at the office of the Registrar, would notin ail circumstances ensure that such notices would be received bythe respondents within the stipulated time, because the Registrar hasto set in motion another process, viz: service through the Fiscal,which would cause delay and it may result in certain instances, as inthe present case, of such notice being not served within the requiredtime. Thus the intention of the legislature of informing therespondents expeditiously would be defeated. What is important is toinform the respondents and not the Registrar of the filing of thepetition. Therefore, in my view, the time limit stipulated in para (1) ofRule 14 is clearly applicable to the services of the said notices on therespondents and not to the delivery of the said notices at the officeof the Registrar.
It is also appropriate to note here that sub-para 3 of Rule 3 whichprovides for the manner in which the said notices are to be servedrefers to paragraph 1 of Rule 14. The words “delivered underparagraph 1 at the office of the Registrar," would mean that theservice of the said notices under Civil Procedure Code, as providedfor in that paragraph, should be done within the stipulated time inparagraph 1 of Rule 14.
The election petition proceedings being purely statutoryproceedings, the statutory requirements of the election law must bestrictly observed. If the legislature intended to exclude this mode ofservice of notice on the respondents from the application of the timelimit applicable to the several modes of service stipulated in Rule 14,it is to be expected that this mode of service, would have beenexpressly excluded from the application of the said time limit or wouldhave been enacted as a separate rule.
I am fortified with the construction I have given to Rule 14 sub-para
, when one looks at the scheme of the Act where time limits havebeen stipulated for various steps to be taken at various stages sothat there would be expeditious disposal of the election petition.Some examples of such time schedules are, that an election has to be
Chandrakumar v. Kirubakaran (A Da Z. Gunawardana, J.)
presented within 21 days from the publication of the results of theelection under section 108(1). The security has to be provided at thetime of filing the petition or within 3 days thereafter – section 103(1). Itis required under section 9(2) that every election petition shall betried as expeditiously as possible and every endeavour be made toconclude the trial of every petition within a period, of 6 months. Anappeal from the determination or order of an Election Judge has tobe made before expiry of one month from the date of thedetermination or order – section 102(2). Every appeal to the SupremeCourt from an Election Judge's determination or order will begivenpriority over other business of that Court – section 102(5). If thepetitioner claims the seat of an unsuccessful candidate, each sidemust, 6 days before the trial; deliver to the Registrar a list of votesintended to be objected to in terms of Rule 6. In a recriminatorycase, the respondent, must, six days before the trial, deliver'to theRegistrar a list of objections on which he intends to rely in terms ofRule'7.
Thus it is clear from the said provisions that time limits have beenprescribed to ensure that an election petition is disposed ofexpeditiously. This is done because it is in the interest of both thewinning candidate as well as the electorate to know as early aspossible, for certain, what the position is, regarding the status of theirelected representatives.
The Rule 15 of the Parliamentary Elections Rules (1946) Which isalmost identical with the said Rule 14 had been the subject ofinterpretation by Supreme Court in the case of Nanayakkara vs.Kiriella and others (1). The majority of judges in the said case heldthat,
"The ten day limit prescribed by Rule 15(1) of the ParliamentaryElections Petition Rules for the service of notice of presentation ofan election petition on the respondents is mandatory and appliesto every mode of service of notice set out under sub-para (a) and
. Even where the petitioner delivers to the Registrar the notices.and copies of the petition under Rule 15(1)(b) the actual servicemust be effected within ten days.”
Although this decision is not binding on this Court, in view of thereasons I have adduced above, I am inclined. to follow the saidmajority view expressed in the said case..
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I hold that, the petitioner has failed to comply with the requirementin Rule 14(1)(b), to have the said notices served on the respondentswithin 14 days.
The second mode of service resorted to by the petitioner to givenotice of presentation of petition was to have a notice published inthe Gazette dated 17.2.89. Rule 14(2) provides for such notice asfollows:
"or by a notice published in the Gazette stating that such
petition has been presented and that a copy of it may be obtainedby the respondents on application at the office of the Registrar."
What is crucial in this mode of giving notice is also the time limit. Thetime limit applicable in this instance too would be that prescribedunder Rule 14 para (1), namely 10 days or in this instance, 14 days,in terms of the proviso. In the case of P. A. Cooray vs. H. J. G.Fernando (2), Justice Swan, considering a similar provision underParliamentary Elections Order in Council states;
“So that the only other matter to consider is whether the noticepublished by the respondent in the Government Gazette complieswith the requirements of Rule 15. This notice appeared in theGazette of 27.6.52, i.e. beyond the period of ten days. Mr.Kannangara says it was handed to the Government Printer on25.6.52. But the date of publication is the required date, not thedate on which it was handed in for publication."
Thus in the present case too the relevant date is the date on whichthe notice was published, namely,. 17.2.1989, which is beyond 14days from the date on which the Provincial Council Election PetitionRules were published. The Provincial Council Election Rules werepublished in Gazette Extraordinary dated 25.1.89. I hold that the timelimit specified in para 1 and proviso to Rule 14 is applicable to thismode of giving notice, arid therefore the petitioner has failed topublish the said notice in the gazette within the time required in Rule14(2).
The petitioner has submitted photo-copies of the registered articlereceipts on which date stamp appears to be 2.2.89, as proof ofposting of the said notices in terms of Rule 14(2). However, the 1 to8 respondents have denied receipt of this notice by post. In my viewthe period of time stipulated in para 1 and proviso of Rule 14 is
Chandrakumar v. Kirubakaran (A. De Z. Gunawardana, J.)
applicable to this mode of service too. There is no proof that thesenotices were received by post by the 1. to 8 respondents, within thetime stipulated in Rule 14 paragraph (1). Therefore I hold that thepetitioner has failed to comply with Rule 14 (2) in regard to service ofnotice of presentation of petition by this mode too..
The resulting position is that the petitioner has failed to comply vyith.the requirement of service of notice of presentation of petition by anyof the modes stipulated in Rule 14. The petitioner's failure to do sois a fatal irregularity. Therefore I uphold the Objection on this ground.
The Counsel for the 1 to 8 .respondents contended that the failure/ of the petitioner to support the allegations of corrupt, practicespleaded in paragraph 7 of the petition by an affidavit was a. fatalirregularity. He cited section 98(d). of the Provincial Councils ElectionAct which states as follows:
“(d) shall set forthwith full particulars of ariy corrupt or illegalpractice that petitioner alleges, including as full a statement aspossible all names of the parties alleged to have committed suchcorrupt or illegal practice and the date and place of thecommission of such practice, and shall also be accompanied byan affidavit in support of the allegation of such corrupt or illegalpractice and the date and, place of the commission of suchpractice;”> – .
He drew the attention of court to para 7(d) of the petition which statesthat,•
“Several voters were impersonated at the said election."
and para 7(e) which states that;
“several votes were cast by persons impersonating, voters whowere dead at the time of the said poll.”
These the learned Counsel submitted were corrupt practices.Therefore the petition should have been accompanied by an affidavit,and the failure to do so was fatal defect.
The Counsel for the petitioner submitted that these acts werealleged not as grounds to avoid the election but to substantiate thecharge of general intimidation. He pointed out that the petitioner isseeking to have the election declared void under section 92(1) on theground of general intimidation, and in such a situation, these being
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only some of the acts alleged to prove general intimidation, noaffidavit is necessary. He cited in support of his contention thejudgment of Justice Wimalaratne in the case of Abeywardene vs.Ariya Bulegoda and two others (3). In dealing with almost identicalprovision in section 80B(d) of Ceylon (Parliamentary Elections) Orderin Council, 1946 as amended by Act No. 9 of 1970, Justice. Wimalaratne states;
"An affidavit is required to accompany and support the petitiononly if the petition alleges the commission of a corrupt or illegalpractice. No affidavit is required in support where the petitioneralleges general intimidation. As I have already held, paragraph 4of the petition contains only one ground of avoidance, which isgeneral intimidation. Therefore no affidavit need accompany thepetition supporting the allegation in para 4 of the petition.”
I am inclined to agree with the view expressed there in the saidcase.
In this case also the ground of avoidance is not the commission ofcorrupt practice, but general intimidation. The acts which wouldamount to corrupt practices have been alleged with a view ofsupporting the ground of. general intimidation. In such circumstances,in my view the failure to support the petition with an affidavit is not afatal irregularity, therefore, I overrule the objection taken by Counselfor the 1 to 8 respondents on-that ground.
In view of the fact that I have upheld the first two objections takenby the respondents, I dismiss the election petition filed by thepetitioner, but without costs.
Petition dismissed onpreliminary objections.