081-NLR-NLR-V-67-F.-B.-DANISTER-DE-SILVA-Petitioner-and-PRINS-GUNASEKERA-and-others-Respondent.pdf
1965Present: Abeyesundere, J.
F. B. DANISTER DE SILVA, Petitioner, and PRINSGUNASEKERA and others, Respondents
Election Petition No. 22 of 1965—Electoral District No. 63 (Habaraduwa)
Election petition—Contents and form of petition—“ Facta and grounds relied on”—Security for costs—Computation of number of “ charges ”—ParliamentaryElection Petition Buies, 1946, Rides 4 (1) (b), 12—Ceylon (ParliamentaryElections) Order in Council, 1946, ss. 57, 58, 77 (6).
In paragraph 5 of the election petition the petitioner stated that the electionof the respondent was null and void on tho ground of such non-compliancewith the provisions of the Ceylon (Parliamentary Elections) Order-in-Council,1946, relating to elections as affected the result of the election. Paragraph 6contained tho statement that the respondent, or his agent, or agents, or otherswith his knowledge or consent committed the corrupt practi of briberywithin the moaning of section 57 i f the same Order-in-Council.
Held, (i) that oach of the two paragraphs 5 and 6 container! a brief stab mentof both a fact and a cround within the meaning of Rul '4(1) (6) of the Parlia-m» ntary Election Petition Rules, 1946. The fact that persons in tho alternativewe re described in paragraph 6 aa having committed the corrupt practice ofbribery did not offend the said Rule 4 (1) (b).
1 (1931) 33 N. L. R. 85.
that, for th purpose of determining the amount of security for costswhich the petitioner in an election petition must deposit according to thenumber of “ charges ” alleged in the petition, the expression “ charges ” inRule 12 (2) of the Parliamentary Election Rules, 1946, refers exclusively toallegations of misconduct of the description of corrupt or illegal practices withinthe meaning of the Ceylon (Parliamentary Eloctions) Order-in-Council.
that paragraph 6 of the petition contained only one charge, namelybribery, for the purpose of Rule 12 (2) of the Parliamentary Election Rules,1946.
Election Petition No. 22 of 1965—Electoral District No. 63
(Habaraduwa).
George E. Chitty, Q.G., with E. A. G. de Silva, S. S. Basnayake, VaninaBasnayake, G. A. Amerasinghe and A jit Wijeyewardene, for the Petitioner.
R. S. R. Goomaraswamy, with K. Shinya, George Rajapakse,
K.Shanmugalingam and J. R. Karunaratne, for the 1st Respondent.
M.Kanagasunderam, Crown Counsel, with N. B. D. S. Wijesekera,Crown Counsel, for the 2nd and 3rd Respondents.
September 28, 1965. Abeyesundere, J.—
Francisku Badaturuge Danister de Silva, hereinafter referred to .asthe petitioner, has presented to the Supreme Court an election petition,hereinafter referred to as the election petition, against the election ofPrins Gunasekera as Member of Parliament for the Electoral District ofHabaraduwa at the General Election held on 22nd of March, 1965,hereinafter referred to as the respondent.
It is alleged by the respondent that paragraphs 5 and 6 of the electionpetition are respectively a mere repetition of the grounds of avoidance ofan election set out in section 77 (b) of the Ceylon (Parliamentary Elections)Order-in-Council, 1946, and a vague and general reference to the offenceof bribery set out in section 57 of that Order-in-Council and that,therefore, the petitioner has failed to comply with the provisions ofRule 4 (1) (b) of the Parliamentary Election Petition Rules, 1946.
The respondent also alleges that the petitioner has failed to depositthe amount of security required by Rule 12 of the Parliamentary ElectionPetition Rules, 1946, and that consequently no further proceedings canbe had on the election petition. On the said allegations the respondentprays for the dismissal of the election petition.
The said Rule 4 (1) (6) provides that an election petition shall state theholding and result of the election and briefly state the facts and groundsrelied on to sustain the prayer. It is contended on behalf of the respond^ent that, although paragraphs 5 and 6 of the election petition containgrounds relied on to sustain the prayer in that petition, there is nostatement of the facts.
In paragraph 5 of the election petition there is the statement of thepetitioner that the election of the respondent is null and void on theground of such non-compliance with the provisions of the said Order-in-Council relating to elections as has affected the result of the election.That statement is a brief statement of both a fact and a ground relied onby the petitioner to sustain the prayer in the election petition.
Paragraph 6 of the election petition contains the statement that therespondent, or his agent, or agents, or others with his knowledge orconsent committed in connection with the election the corrupt practiceof bribery within the meaning of section 57 of the said Order-in-Council.That statement is a brief statement of both a fact and a ground reliedon by the petitioner to sustain the prayer in the election petition. Thefact that persons in the alternative are described in the said paragraph 6as having committed the corrupt practice of bribery does not offend thesaid Rule 4 (1) (b).
For the aforesaid reasons I hold that, in regard to paragraphs 5 and 6of the election petition, the petitioner has not failed to comply with theprovisions of the said Rule 4 (1) (b).
The said Rule 12 provides that security given on behalf of the peti-tioner shall be to an amount of not less than Rs. 5,000 and that, if thenumber of charges in the election petition exceeds three, additionalsecurity to an amount of Rs. 2,000 shall be given in respect of eachcharge in excess of the first three. The petitioner has given securityby the deposit in cash of the sum of Rs. 7,000. It is argued on behalfof the respondent that the security given by the petitioner is inadequateas there are more than four charges in the election petition. The sub-mission made on behalf of the respondent is that in each of the para-graphs 3, 4 and 5 of the election petition there is a charge, and that inparagraph 6 of that petition there are no less than four charges, namely,in connection with the election bribery by the respondent, bribery byhis agent, bribery by his agents, or bribery by persons with the knowledgeor consent of the respondent.
The expression ‘ charges ’ which appears in the said Rule 12 (2) occurredin a similar rule of 1931, and in connection with the latter rule thatexpression was interpreted by the Supreme Court in the case ofTillekewardene v. Obeyesekere1, reported in 33 New Law Reports, page 65,to bo “ the various forms of misconduct coming under the description ofcorrupt and illegal practices”. That interpretation was approved andapplied to the said Rule 12 (2) by a Bench of three Judges of the SupremeCourt in the case of Per era v. Jayewardene2, reported in 49 New LawReports, page 1.
Paragraphs 3, 4 and 5 of the election petition do not contain allegationsof misconduct of the description of corrupt or illegal practices within themeaning of the said Order-in-Council. Those paragraphs do not containany charges within the meaning of the said Rule 12 (2).
1 (1931) 33 N.L.R. 65.
• (1947) 49N.L.R. 1.
Paragraph 6 of the election petition refers to the offence of bribery .That offence is a corrupt practice under Section 58 of the said OrcLer-in-Council. The said paragraph 6, therefore, contains a charge within themeaning of the said Rule 12 (2). But it is contended on behalf of therespondent that the said paragraph 6 contains more than one charge.In my view that contention is not correct as the charge in that paragraphis the offence of bribery. Although there may be several instances orcases of that offence, there is only one charge, namely bribery, for thepurpose of the said Rule 12 (2). This view is supported by the judgmentsof the Supreme Court in the two aforesaid cases.
For the above-mentioned reasons I hold that the petitioner has notfailed to deposit the amount of security required by the said Rule 12.
I dismiss the petition of the respondent praying for the dismissal ofthe election petition and I order the respondent to pay the petitioner ascosts of this inquiry the sum of Rs. 787 which is agreed upon by thecounsel for the petitioner and the counsel for the respondent.
I fix 14th March, 1966, as the date on which the trial of the electionpetition shall commence in Colombo.
Preliminary objections overruled.