015-SLLR-SLLR-2003-V-3-HAFI-v.-DAYANANDA-DISSANAYAKE-COMMISSIONER-OF-ELECTIONS-AND-OTHERS.pdf
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Hafi v Dayananda Dissanayake, Commissioner of Elections
and others (Dissanayake. J.)
81
HAFIv
DAYANANDA DISSANAYAKECOMMISSIONER OF ELECTIONS AND OTHERSCOURT OF APPEALDISSANAYAKE, J.PETITION NO. 6/2001C.A. ELECTIONAPRIL 2 andMAY 27, 2003
Election Petition – Parliamentary Elections Act, No. 1 of 1981 – S. 53, S.55,S.60 – S. 92 – Failure to serve the Notice of presentation of the petition with-in 10 days – Is it fatal?
The petitioner complained that the 2nd respondent (Returning Officer) had bychanging and/or altering the number of preferential votes at his office had vio-lated/failed to comply with the lawful procedure/requirements laid down in theElections Act thereby prevented the petitioner being elected as a member ofParliament and facilitated the 3rd respondent being declared elected.
The Counsel appearing for the 3rd respondent took up the preliminary objec-tion that, the petitioner has not given the notice of presentation within 10 daysof the presentation of the petition (Rule 14).
Held :
It appears that, Rule 14 has been complied with as far as 4 -93rd respondents are concerned
The Notice on the 3rd respondent has been issued on a wrongaddress.
Petitioner has violated Rule 14 of the 4th schedule of theElection Petition Rules. Failure to comply with Rule 14 is fatal.
Petition challenging the election of the 3rd respondent as a Member ofParliament, and the Parliamentary Elections held on 5.12.2001, in respect ofthe Puttalam District.
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Cases referred to :
Saravanamuttu v De Silva – 42 NLR 561 (distinguished)
Nathan v Chandrananda de Silva, Commissioner of Elections 1994 2SRI LR 209
Aaron v Senanayake – 40 NLR 257
Cooray v Fernando – 54 NLR 400
Shibly Azeez P.C. with Nishantha Sirimanne and Rohana Deshapriya for thepetitioner.
A. Gnanathasan D.S.G. with Janak de Silva SC for the 1st and 2nd respon-dents
Romesh de Silva P.C. with Sugath Caldera for 3rd respondent.
Cur.adv.vult
July 10, 2003DISSANAYAKE, J.
The petitioner was the United National Party candidate at theParliamentary General Election for administrative district ofPuttalam, in the Wayamba Province, held on 5th of December2001. The 3rd to 151st respondents were all candidates who con-tested the said election from various political parties and indepen-dent groups from the Puttalam District and the 3rd, 5th, 7th, 9th,34th, 39th and 41st respondents were duly elected members ofParliament for the Puttalam District. The 1st respondent is theCommissioner of Elections of the Democratic Socialist Republic ofSri Lanka. The 2nd respondent was the returning officer for thePuttalam District at the election. The 3rd, 5th, 7th and the 9threspondents were elected from the United National Party.
The petitioner based this action on the ground that the 2ndrespondent had by changing and/or altering the number of prefer-ential votes at his office had violated or failed to comply with thelawful procedure and requirements laid down in sections 53, 55 and60 of the Election Act, No. 1 of 1981 as amended, and had there-by prevented the petitioner who had received 35634 votes beingelected as a member of Parliament for the Electoral District ofPuttalam, and facilitated the 3rd respondent who had obtained34348 preferential votes being declared elected.
The petitioner prayed for the declaration that the ParliamentaryElections held on 05.12.2001 in respect of the Puttalam is void, andfor declaration that the election of the 3rd respondent is undue, andthat he be declared elected.
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Hafi v Dayananda Dissanayake, Commissioner of Elections
and others (Dissanayake, J.)
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Learned President’s Counsel who appeared for the 3rd respon-dent took up the following preliminary objections, namely:-
The petition does not conform to the requirements con-tained in the Parliamentary Elections Act, No. 1 of 1981 asamended, in that under and in terms of Rule 14 of theElection Petition Rules, which are contained in the fourthschedule to the Act, the petitioner has not given notice ofpresentation within ten days of the presentation of the peti-tion. Even the petition does not set out grounds that willinvalidate the election in terms of section 92 of the Act, No.1 of 1981.
The petition does not conform to the essential require-ments contained in Parliamentary Elections Act, No. 1 of1981.
The 3rd respondent in his objections dated 9th October2002 has also set out the above objections as (b) and (c)of paragraph 7 of his objections tendered to this court.Therefore the 3rd respondent is entitled to take up theaforesaid objections. Since the allegation by the 3rdrespondent that he did not receive the notice of presenta-tion of the petition within 10 day of presenting the petitionis a non-compliance of a mandatory provision under Rule14 of the 4th schedule of the Election Petition Rules, I amof the view that the 3rd respondent is entitled to take up theaforesaid objection as a preliminary objection as it goes tothe maintainability of the petition.
Therefore I am of the view that the decision in Saravanamuttuv De Silva (1) does not apply to the instant case.
On an examination of the journal entry of 31.12.2001 wherethe tendering of the petition to this court is recorded, it is clear thatproof of service of Notice of presentation has not been jouranlised.Therefore when the matter has come up on 05.03.2002 after a peri-od of about three months and notice has been issued by court onthe 3rd respondent for the first time. Subsequently when the matterwas taken up on 27.03.2003 notices on the 2nd and 3rd respon-dents were ordered by court to be reissued. Thereafter the mattercame up on 04.04.2002 and on 29.05.2002 on which dates the 3rd
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respondent appeared in court.
The 3rd respondent's position was that no notice of presenta-tion of petition was served on him. He took up the position that itwas by letter dated 04.03.2002 of the registered Attorney-at-Law ofthe petitioner which was produced marked 'A' that he was informedof this matter for the very first time.
On examination of the record it is observed that the registeredAttorney-at-Law for the petitioner has tendered a motion to court 70dated 11.01.2002 and had tendered registered article receipt inproof of dispatching notices to be served on the respondents. Bymotion dated 13.03.2002 she had tendered the names of therespondents on whom the notices were dispatched. It is to beobserved that inadvertently no notice has been issued on the 3rdrespondent on that occasion. However by letter dated 04.03.2002,notice of presentation has been issued on the 3rd respondent.
The petition has been tendered to court on 31.12.2001 and theproof of presentation of notice has to be tendered to court within tendays of the presentation of the petition.80
The registered Attorney-at-Law has compiled with Rule 14 asfar as the 4th to 93rd respondents are concerned.
When the matter was taken up on 10.06.2002 MissNailanathan, registered Attorney-at-Law of the petitioner submittedthat notice has been issued on the 3rd respondent. However it hasbeen discovered that the notice has been issued on the 3rd respon-dent on a wrong address. Despite the fact the registered Attorney-at-Law Miss Nailanathan taking steps to issue notice, it appearsthat her efforts have been in vain as the address of the 3rd respon-dent on whom the notice had been issued was found to be wrong. 90It is to be observed that the 3rd respondent receive due notice onlyby letter dated 04.05.2002.
The issue of notice on the wrong address however cannot beconsidered due compliance of Rule 14 of the 4th schedule of theElections Act, No. 1 of 1981. Therefore I am of the view that thepetitioner has violated Rule 14 of the 4th schedule of the ElectionPetition Rules. Failure to comply with Rule 14 has been held to befatal in the case of Nathan v Chandrananda de Silva Commissioner
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Hafi v Dayananda Dissanayake, Commissioner of Elections
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of Elections*2) also vide Aaron v SenanayakeW and Cooray vFernando^.
Since the failure to serve the notice of presentation of the peti-tion within 10 days is fatal to the petition, I am of the view that theother preliminary objection relating to non-conformity of the petitionof the provisions of the Parliamentary Election Act, is not necessaryto be considered.
The petition of the petitioner is dismissed in limine with costs.
Petition dismissed
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