020-NLR-NLR-V-45-JOSEPH-v.-KANNANGARA-et-al.pdf
JAYATILEKE J.—Joseph v. Kannangara.
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19<3Present Jayetlleke J.JOSEPH v. KANNANGARA et al.
In the Matter of a Writ of Certiorari and Mandamus againstthe Returning Officer, Colombo MunicipalityNo. 528.
Municipal Councilelection—Validity of nomination—FailureofReturning
Officer to put a member in nomination—Election void—WritofMandamus—ColomboMunicipal Council(Constitution)Ordinance,
Sec. 37(1) and (2).
Where no objection is taken to a nomination paper submitted by acandidateataMunicipal Council election,the nominationisvalid and
the Returning Officer is bound to carry out the steps indicated in section37, sub-sections (1) and (2).
Whereanelection is held without puttingsuch candidateinnomination
the election is void and the Supreme Court will by Mandamus order afresh election to be held.
A copy of a nomination paper on which the written consent of thecandidateisnotendorsed or to which suchwritten consentisnot affixed
is not a true copy within the meaning of section 31.
T
HIS was an application for a writ of Certiorari and Mandamuson the Returning Officer of the .Colombo Municipality.
N.Nadarajah, K.C. (with him C. S. Barr Kumarakulasingam and VernonWijetunge), for petitioner.
N. K. ChoJcsy (with him R. A. Kannangara), for respondent.
Cyril E. S. Perera (with him V. F. Guneratne) for intervenient.
Cur. adv. vult.
December 20, 1943. -Jayetileke J.—
This is an application for a writ of mandamus to compel the firstrespondent to take the necessary steps under section 37 of the ColomboMunicipal Council (Constitution) Ordinance on the footing that thepetitioner is a duly nominated candidate for the Mutwal Ward. In thecourse of the inquiry the petitioner amended the petition ex abundartticautela and asked for a writ of certiorari to quash the decision of the first■respondent that he was not a duly nominated candidate.
64
JAYETUjEKE J-—Joseph ©. Kannangara.
The petitioner, the second respondent and one Mr. Mendis were-nominated as candidates for election for the Mutwal Ward at the generalelection of the Colombo Municipal Council. The first respondent wasduly appointed Returning Officer for that ward.
On nomination day the petitioner handed to the first respondent twonomination papers A and R 1 and copies of each 33 and R 2. The paperswere not examined by the first respondent but placed in a tray which wason his table. They were passed on by a clerk called Fernando to anotherclerk who had been detailed by the first respondent to scrutinise them.The latter found that the written consent of the petitioner to be nominatedas a candidate was not annexed to or endorsed on B and he brought thefact to the notice of the first respondent. R 1 and R 2 had got mixed upwith some other nomination papers and were not scrutinised by him.The first respondent inquired whether there were any papers besides Aand B and rpas informed there were none. He then took the objectionthat B was not a true copy of A within the meaning of section 31 of theOrdinance.
The first respondent says that he took the objection before 1.30 p. M.,upheld it, and announced his decision at 3.30 p.m. on the microphone.
A large volume of evidence was led by the petitioner to prove that nosuch announcement was made. It seems unnecessary for me to decidewhether such an announcement was made because section 32 (4) does notrequire the Returning Officer to make a public announcement of hisdecision on an objection. There is ample evidence that the first respon-dent informed the petitioner of the objection taken by him and of hisdecision thereon as required by the sub-section.
Mr. Nadarajah faintly argued that it was not. necessary to have thewritten consent of the candidate annexed to or endorsed on the copy.The short answer to this contention is that section 31 provides that atrue copy must be delivered with every nomination paper. B is not a truecopy of A because the written consent of the petitioner which is endorsedon A does not appear on it.
The petitioner alleged in his affidavit that he handed to the firstrespondent two nomination papers and a copy of each. He furtheralleged that candidates were prevented from scrutinising nominationpapers, that copies of nomination papers were not posted up on theboard before 1.30 p.m., that objections were entertained after 1.30 p.m.,that there was a large crowd round the first respondent, and that theproceedings were conducted by the first respondent in a very unbusiness-like manner.
These allegations were not denied by the first respondent. The causeof the trouble seems to have been that one person had been appointedReturning Officer for 30 wards.
There can be no doubt that whoever was responsible for making theappointment has committed an egregious blunder. It was not humanlypossible for one person to examine and pass 700 nomination paperswithin the time prescribed. The first respondent has himself failed in hisduty to make adequate arrangements to have the nomination papersscrutinised for he had only twelve clerks to help him in the work-
JAYETILEKE J.—Joseph v. Kannangara.
»&
The first respondent in his affidavit stated tliat the petitioner handedto him only one nomination paper and one copy. But in the course ofthe inquiry he brought to my notice that he caused a search to be madeto satisfy his own conscience that there was no other nomination paperand he came across the nomination paper It 1 and the copy It 2 which heproduced in Court. He pointed out that R 2 was not a true copy of R 1as the written consent of the petitioner was not annexed to or endorsed•On it. He admitted that no objection was taken by anyone to R 1.
Mr. Nadarajah contended that as no objection was taken to R 1,it must be taken to be a valid nomination paper and that the firstrespondent was not justified in refusing to put the petitioner in nomina-tion. He relied on the case of Pritchard v. Mayor, Aldermen and Citizensof Borough of Bangor 1 in which Lord Watson said-at page 252: —
"If no objection is made, or if objections are stated and repelledhy the Mayor, then the nomination becomes a valid nomination. Ido not mean to suggest that it is final and conclusive upon questions ofdisqualification or other similar objections which may be taken to it,but I tbink it was intended to be conclusive to this effect, that thenomination paper so sustained as valid should form the basis of theelection, and that the nominee in that paper should be treated as aperson for whom votes could be given before the Returning Officer.
The functions of a Returning Officer with regard to the nominations • ofcandidates are .defined in seetions 31, 32 , 33, 34, 35 , 36, and 37 of theOrdinance.
Under section 32 (2) he is under an obligation to reject any objection£aken to a nomination paper after 1.30 p.m. on nomination day.
The nominations of the petitioner, the second respondent andMr. Mendis were duly handed in to the first respondent within- the{prescribed time. No objections were taken to the nomination papers ofcither the second respondent or Mr. Mendis -but, as I said before, one ofthe nomination papers of the petitioner, to wit, R 1, was mislaid by thefirst respondent.
As no objection was taken to R 1, I am of opinion that it must betaken to be a valid nomination. It was, therefore, the duty of thefirst respondent to put all three candidates in nomination and to takethe necessary steps under section 37, sub-sections (1) and (2).
Sub-section (1) provides that if more than one candidate standsnominated for the ward, the Returning Officer shall forthwith adjournthe election to enable a poll to be taken and shall allot to each candidate■a colour by which the ballot box for the reception of ballot papers infavour of such candidate shall be distinguished at the poll. Sub-section
provides that immediately after such adjournment the ReturningOfficer shall report to the Commissioner that the election is contested and•shall send him copies of the nomination papers and a statement of the•colour allotted to each candidate. Sub-section (3) provides that uponthe receipt of such report the Gon&nissioner shall take the necessary steps4o have the poll taken.
1 {1889) 13 Appeal Cases, 241.
AJ. N. A 93349 (11/49)
66JAYETILEKE J.—Joseph v. Kan.nanga.7a.
The evidence shows that the first respondent failed to put the petitionerin nomination and that his report under sub-section (3) was that thesecond respondent and Mr. Mendis stood nominated for the Ward. Thepoll was taken on December 4, 1943, and the second respondent wasdeclared elected.
The question arises whether the first respondent’s failure to put thepetitioner in nomination and to comply with the provisions of section 37
and (2) vitiates all the subsequent steps taken by him.
In Davies v. Lord Kensington 1, the Returning Officer refused to putin nomination one of two candidates on the ground that he declined todeposit or give security for £40 which the Returning Officer demandedas a moiety of the estimated expenses to be incurred by him in carryingout the provisions of the Ballot Act.
Lord Coleridge C.J. said: —
He (the Returning Officer) improperly insisted upon a conditionwhich he had no right to impose and his refusal to put Mr. Davies innomination was without justification, and consequently the electionand return of Lord Kensington was void.”
Brett J. said: —
The refusal of the Returning Officer to put the second candidatein nomination was a breach of duty which altogether avoided the election,and therefore we must hold the return of Lord Kensington to be void.”
The questions of principle raised here are indistinguishable from thosewhich were argued in the two eases I have referred to. Mr. Choksy urgedthat a writ of mandamus, which is a high prerogative writ, should not beissued in this case because the petitioner has not complied with theprovisions of section 31 of the Ordinance.
A writ of mandamus is, no doubt, a writ discretionary on the part ofthis Court. Though R 2 is not a true copy of R 1, I am satisfied on anexamination of R 1 that the written consent of the petitioner has beengiven to his nomination. The petitioner has proved that the firstrespondent was under a duty to put him in nomination and that he hasfailed to do so.
In these circumstances I am of opinion that the relief prayed for inpara, (a) of the petitioner’s original petition should be granted by thisCourt. I declare the election of the second respondent void and makethe rule absolute with costs against the first respondent. I would makeno order for costs against the second respondent.
Rule made absolute.
1 h. H. 9 O. P. 720.