079-NLR-NLR-V-67-D.-E.-WIJESEKERE-and-another-Petitioners-and-K.-D.-D.-PERERA-Respondent.pdf
1965Present: Abeyesundere, J.D. E. WIJESEKERE and another, Petitioners, and K. D. D. PERERA,
Respondent
Election Petition No. 1 of 1965—Electoral District No. 27 (Bandaragama)
Election petition—-Quantum of security for costs—Computation of number of “ charges ”— Difference between “ charges ” and “ grounds ”—Parliamentary ElectionPetition Rules, 1946, Rules 4 (1) (b), 12 (2) (3)—Ceylon (ParliamentaryElections) Order in Council, 1946, s. 77, Schedule III.
In an election petition challenging the validity of the election of a Memberof Parliament, an allegation of “ other misconduct ” in a paragraph of thepetition includes all other forms of misconduct not already specified in theearlier paragraphs. In such a case, the expression “ other misconduct ”constitutes by itself at least two charges (one of corrupt practice and the otherof illegal practice) within the meaning of Rule 12 (2) of the ParliamentaryElection Petition Rules, 1946, for the purpose of determining the amount ofsecurity that must be deposited.
The charges within the meaning of Rule 12 (2) are only those of the groundsset out in section 77 of the Ceylon (Parliamentary Elections) Order in Councilwhich fall within the category of the corrupt or illegal practices specified orincluded in that section.
1 {1931) 33 N.L.R. 117.
Election Petition No. 1 of 1965—Electoral District No. 27(Bandaragama).
A. C. Gooneratne, Q.C., with H. D. Thambiah, Ran jit Gooneratne and
U.H. Rodrigo, for the Petitioner.
Colvin R. de Silva, with K. Shinya, Hannan Ismail and Miss Manouride Silva, for the Respondent.
October 1, 1965. Abeyesttstdere, J.—
Don Edin Wijesekere and Ponsuge Bartholis Thisera, hereinafterreferred to as the petitioners, have presented to the Supreme Court anelection petition, hereinafter referred to as the election petition No. I.against the election of Kongahakankanamge Don David Perera asMember of Parliament for the Electoral District of Bandaragama at theGeneral Election held on the 22nd of March, 1965, hereinafter referredto as the respondent.
It is alleged by the respondent that the number of charges withinthe meaning of rule 12 (2) of the Parliamentary Election Petition Rules.1946, disclosed in the election petition No. 1 is more than three and thattherefore the sum of Rs. 5.000 deposited by the petitioners as securityis inadequate under the said rule 12 (2). Consequently the respondenthas applied under rule 12 (3) of the said Rules for the dismissal of theelection petition No. 1.
The said rule 12(2) provides that the security shall be to an amountof not less than Rs. 5,000 and that if the number of charges in the electionpetition exceeds three, additional security to an amount of Rs. 2,000shall be given in respect of each charge in excess of the first three. Inorder to determine the number of charges disclosed in the election petitionNo. 1 it is necessary to ascertain the meaning of the expression “ charges "occurring in the said rule 12 (2). The expression “charges” occurredin a rule of 1931 which is similar to the said rule 12 (2), and that rule of1931 was considered by the Supreme Court in the case of Tillakeioardanev. Obeyesekere1, and the expression " charges ” occurring in that rulewas interpreted to mean “ the various forms of misconduct comingunder the description of corrupt and illegal practices ”. The said rule12 (2) is identical in its terms with the aforesaid rule of 1931. A benchof three judges of the Supreme Court considered the said rule 12 (2) inthe case of Perera v. Jayeivardene 2, and in interpreting the expressionc; charges ” occurring in that rule approved the interpretation givento that expression by the Supreme Court in the aforesaid case of Tillakf-ivardane v. Obeyesekere.
2 (1947) 49 N. L. R. 1.
» (1931)133 N. L. R. 65.
I do not agree with the view that all the grounds specified in section77 of the Ceylon (Parliamentary Elections) Order-in-Council, 1946, arecharges within the meaning of the said rule 12 (2). In the set of rulesin which the said rule 12 (2) occurs the expression “grounds ” occursin one place and the expression “ charges ” occurs in another. Inrule 4 (1) (6) the expression “ grounds ” is used and in rule 12 (2) theexpression “ charges ” is used. Two different expressions were thusused in order to convey two different meanings. It appears to me thatthe reason for using the expression ‘ charges ” in the said rule 12 (2)instead of the expression “ grounds ” occurring in the said section 77is that the legislature intended to limit the matters for which additionalsecurity should be provided and thereby to limit the amount of theadditional security. The charges within the meaning of the said rule12 (2) are only those of the grounds set out in the said section 77 whichfall within the category of the corrupt or illegal practices specified orincluded in that section.
It was contended on behalf of the respondent that the expression“ other misconduct ” occurring in paragraph 5 of the election petitionNo. 1 includes two charges, namely, the charge of corrupt practice andthe charge of illegal practice. The corrupt practice that is specifiedor included in the said section 77 is a misconduct and so is the illegalpractice specified or included in that section. The expression “ othermisconduct ” therefore undoubtedly includes both such corrupt practiceand such illegal practice as aforesaid. It was argued on behalf of thepetitioners that the expression “ other misconduct ” occurring in thesaid paragraph 5 was intended to indicate only one other form of mis-conduct. In my view the expression “ other misconduct ” occurring inthat paragraph is intended to include all other forms of misconductnot already specified in the election petition No. 1.
As the expression “other misconduct ” occurring in the said paragraph 5includes two charges, one of corrupt practice and the other of illegalpractice, there are at least two charges disclosed in that paragraph.When those charges are added to the charge disclosed in paragraph 3and the charge disclosed in paragraph 4 of the election petition No. 1,that petition discloses at least four charges. I therefore hold that thesum of Rs. 5,000 deposited by the petitioners is inadequate securityunder rule 12 of the Parliamentary Election Petitions Rules, 1946.Consequently the application for the dismissal of the election petitionNo. 1 made by the respondent must succeed. I dismiss the electionpetition No. 1 with costs. The petitioners shall pay the respondent ascosts of the inquiry into the application made by the respondent thesum of Rs. 787 which is agreed upon by the counsel for the petitionersand the counsel for the respondent.
Election petition dismissed.