085-NLR-NLR-V-54-In-re-C.W.F.A.-JAYAWARDENE.pdf
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GTJN'ASEK.ARA J.—In re Jayawardene
Present: Gunasekara J.In re C. W. F. A. JAYAWAEDENE
8. C. 393—Application under Sections 70 and 75 op theCeylon (Parliamentary Elections) Order in Council, 1946
Ceylon (Parliamentary Elections) Order in Council, 1946—Failure to make returnrespecting election expenses—Application for authorised excuse—Illness ofelection agent alleged—Factors for consideration—Sections 70 and 75 (I).Where illness of election agent is given as excuse for the failure to make thereturn and declaration respecting election expenses within the thirty-one daysprescribed by section 70 of'the Ceylon (Parliamentary Elections) Order inCouncil, it is not sufficient, in an application for an authorised excuse undersection 75 (1), to show that the election agent was ill towards the end of theprescribed period if it appears that he had had enough time to make the returnbefore he fell ill.
Application under section 75 (l) of the Ceylon (ParliamentaryElections) Order in Council for an authorised excuse for non-compliancewith provisions as to return and declaration respecting election expenses.
Austin Jayasuriya, for the petitioner.
V. Tennekoon, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
January 30, 1953. Gunasekara J.—
The petitioner was an unsuccessful candidate for election to a seat in theHouse of Representatives at the 1952 General Election. His electionagent, G. W. H. Jayasingha, failed to transmit to the returning officer thereturn and declarations respecting his election expenses within thirty-onedays after the date of publication of the result of the election in the Govern-ment Gazette as required by section 70 of the Ceylon (ParliamentaryElections) Order in Council, 1946. He applies, under section 75 (1) of theOrder, for an authorised excuse for this failure on the ground that it hasarisen by reason of the illness of the election agent and not by reason ofany want of good faith on his own part.
{1952) 53 27, L. II. 382.
2 (1948) 50 8. L, It, 128,
GtTXASEKAKA J.—In re Jayawardene
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The petition was filed on the 19th August, 1952, with an affidavit of thatdate sworn by the petitioner. It was heard on the 9th September by mybrother Pulle, and he made order permitting the petitioner to renew theapplication on fresh material. On the 17th September the petitioner’sproctor submitted to the court two affidavits, sworn by the petitioner andJayasingha respectively on the 16th September, together with fourdocuments as exhibits, namely, a postcard and a letter received by thepetitioner from the returning officer and two medical certificates.
It appears from these documents that the last day for the transmissionof the return and declarations was the 1st July and that a return signed bythe petitioner, and not by his election agent, was received by the returningofficer on the 28th June. The returning officer wrote to him on the 14thJuly reminding Viim that he had appointed Jayasingha as his election agenton the 28th April and drawing his attention to the relevant provisions ofsection 70. A return was then sent by Jayasingha on the 1st August.Thereupon the petitioner was informed by the returning officer that heshould apply to this court for an authorised excuse, and he made thepresent application on the 19th August.
The explanation of the election agent’s failure to comply with the pro-visions of section 70 that was tendered by the petitioner on that occasionis contained in paragraphs 5 to 8 of his affidavit of the 19th August,which are in these terms :-
“ 5. The said election agent has failed to transmit the return res-pecting election expenses, and the necessary declaration within theprescribed period. Few days later I looked for the election agent inorder to assist him to prepare the account and to see that he transmitsthe return to the returning officer.
I went in search of the election agent to find , that he was inRagama Hospital bring seriously ill.
After his recovery he sent his return to the returning officer andI was informed by the returning officer that I should apply for anauthorised excuse to the Supreme Court.
The omission on the part of my election agent to transmit thereturn of expenses in time was due to his illness and not due to anyfault of good faith on my part. ”
This affidavit does not explain why Jayasingha failed to transmit thereturn and declarations by the 1st July : it speaks only of the condition inwhich the petitioner found him a few days after the expiry of the pre-scribed period and what happened thereafter. The ailment from whichJayasingha was suffering is described in a certificate from the medicalofficer of the Ragama Hospital, dated the 12th September, which wasfiled with the petitioner’s affidavit of the 16th September. The certifi-cate states that Jayasingha was admitted to the hospital on the 14th Julysuffering from acute hepatitis and that he was discharged on the 16thJuly.
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GrTTNASIDKARA «T.—Xn re Jayct warde nc
In the petitioner’s affidavit of the 16th September he stated fox thefirst time that there was an occasion within the material period as wellwhen he found Jayasingha “ seriously ill The relevant paragraphs ofthat affidavit are in these terms :
“6. The last day for sending the return of election expenses, withthe necessary declaration under the Order in Council, was the 1st of July1952.
About a week prior to the said date 1st July 1952 I went to meetthe said G. W. H. Jayasingha at Batagama in order to assist him toprepare the return and to see that he transmitted the return to returningofficer within the prescribed time.
I found that said G. W. H. Jayasingha was seriously ill andunable to attend to any of his work and in particular to his duty ofsending the return. In proof of his illness I produce marked PIcertificate from M. A. Siriwardane dated 10.9.52 with its translation.
As my election agent the said G. W. H. Jayasingha was unable toattend to and send the return in due time I myself forwarded the re-turn of expenses of the election without the declaration from the saidJayasingha and my return was received by the returning officer on28.7.1952. I produce marked P2 the acknowledgment of the saidreturning officer. ”
(The date “ 28.7.1952 ” is obviously an error for “ 28.6.1952 ”, as wassubmitted by the petitioner’s counsel.) The petitioner’s statement re-garding Jayasingha’s illness is supported by the latter’s affidavit, whichstates that he “ was ill and unable to attend to any workfrom 22 June up to 20th July, 1952 ”, and that for that reason he wasunable to transmit the return within the prescribed period. The docu-ment marked PI purports to be a certificate from an ayurvedic physicianstating that Jayasingha “ got some stomach trouble on the 22nd June,1952 ”, and that the physician treated him till the 10th July.
It is unnecessary to consider whether the evidence submitted by thepetitioner is sufficient to prove that from the 22nd June to the 1st Julyjayasingha was too ill to prepare the return ; for there is nothing toshew that he was prevented by illness or any other good cause from pre-paring and transmitting it to the returning officer in the three weekspreceding the 22nd June. According to the petitioner a period of sixdays was enough for the purpose, for he himself was able to prepare andtransmit it between the 22nd and 28th June.
I am unable to say that the petitioner has shown that the failure totransmit the return and declaration within the prescribed time has arisenby reason of the illness of the election agent as alleged by him. Theapplication is refused.
Application refused.