010-SLLR-SLLR-2005-V-3-KUGENDRAN-vs.-PREMACHANDRAN-AND-OTHERS.pdf
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Sri Lanka Law Reports
(2005) 3 Sri L R.
KUGENDRANVS
PREMACHANDRAN AND OTHERSCOURT OF APPEALWIJEYARATNE, J.CA/EP/01/2004.
DISTRICT No. 10-JAFFNA.AUGUST 29, 2005.
Parliamentary Elections Act, No. 01 of 1981 sections 92, 98 (c) and 98 (e) ■Rules – Non – compliance – Fatal? – Court of Appeal (Appellate Procedure)Rules 1990- Applicability.
The petitioner was a candidate of the Ealam Peoples Democratic Party(EPDP) who was alloted No. 3 in the EPDP list for the Electoral District ofJaffna. The petitioner was not elected.
CA
Kugendran v. Premachandran and Others (Wijeyaratne, J.)
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The petitioner filing an election petition complained that the said electionwas not conducted in accordance with the principles laid down in section 92and sought a declaration that the said election is void.
The repondents contended that
the petitioner has failed to sign the petition ;
the petitioner has failed to give notice of the presentation of thepetition together with copies thereof within 10 days of presentationto be served on the respondent- Rule 14(1) (a) ;
the petitioner failed to give a concise statement of material facts,section 98 (c) ; and sought the dismissal of the election petition inlimine.
HELD:
(T) The petitioner not signing the petition is material non-complianceand the failure to satisfy the requirement in section 98(e) is fatal.
(2) The petitioner who presented his petition on 27.04.2004 has tenderednotice only on 19.05.2004-22 days after the presentation of the petition.Under Rule 14 notice of presentation of the election petition must beserved on the respondents within ten days of the presentation of the 'petition. Failure to do so is fatal.
ELECTION PETITION in respect of Electoral District No. 10 Jaffna -Parliamentary Elections, on preliminary objections raised.
Cases referred to :
Chandrakumar vs. Kiribanda and Others 1982 2 Sri LR 35
Nathan vs. Chandrananda de Silva, Commissioner of Elections andOthers 1994 2 Sri LR 209
Nanayakkara vs. Kiriella (deceased) and Others 1985 2 Sri LR 391Dr. Jayatissa de Costa with D. Epitawela for petitioner.
K. Kanag-lswaran, P. C. with M. A. Sumanthiran for 1st – 121st respondents.
Cur. adv. vult.
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Sri Lanka Law Reports
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August 29, 2005.
P.WIJEYARATNE, J.The Petitioner was a candidate from the Ealam Peoples DemocraticParty (EPDP) who was allotted No. 3 in the list of EPDP for the electoralDistrict of Jaffna for the election held on 2nd April, 2004. The 1 st to 119thnamed respondents to this petition were candidates at the said electionand the 120th respondent is the returning officer and 121 st respondent isthe District Secretary Government Agent for the Killinochchi District and122nd respondent is the Commissioner of Elections. The 1st, 3rd, 4th,5th, 6th, 7th, 10th 12th and 15th respondents were returned as duly elected.Of the parties that contested such elections llangqai Tamil Arasu Kachchi(ITAK) had secured 8 seats at the said election. The Petitioner avers thatITAK was well known to have allegiance to LTTE a terrorist organization.The Petitioner stated that the election of members of Parliament for theelectoral District No. 10 Jaffna is void on grounds of non – compliance withprovisions of Parliamentary Elections Act, No. 1 of 1981 and other provisionsof section 92 of the said Act. As the said election was not conducted inaccordance with the principles laid down in such provisions and enumeratedsuch instances under paragraph 9(a) to 9 (h) of his Petition among themwere systematic rigging, impersonation by ITAK, general intimidation ofvoters, corrupt or illegal practices by officials were grounds upon whichthe petitioner.seeks a declaration that the Parliamentary Election for theElectoral District No. 10 Jaffna held on 2nd April, 2004 is void and furtherdeclare that the return of 1, 3, 4, 5, 6, 7, 10 and 12 respondents wereundue, in terms of provisions of section 92(1) of the Parliamentary ElectionAct, No. 1 of 1981.
The Petitioner relied on documents marked X 1 to X 6. The Petitionertendered his petition dated 27th April, 2004 signed by his agent and movedto support the same on 22nd June, 2004. However the petitioner on 19thMay, 2004 tendered notices to be issued on respondents and in termsof rule 14 of schedule 4, Court ordered issue of notices on respondentsfixing the date of the trial on 22nd June, 2004. On 22.06.2004 1 st to 12threspondents represented by their counsel noted their preliminary legalobjections which they tendered by way of motion on 13.07.2004. Thepetitioner by his affidavit dated 20th September, 2004 countered the same.
• The inquiry into the preliminary objection was agreed to be disposed of byway of written submissions tendered by the respective counselsrepresenting parties.
CA
Kugendran v. Premachandrart and Others (Wijeyaratne, J.)
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By way of preliminary objections the 1st to 12th respondents urgedthat-
the Petitioner failed to sign the Petition as required by section98(e) of the Parliamentary Elections Act, No. 1 of 1981 asamended;
the Petitioner has failed to give notice of the presentation of thePetition together with copies thereof within 10 days ofpresentation to be served on respondents as required by rule14 (1) (a) of the said Act, No. 1 of 1981;
the Petitioner failed to give a concise statement of materialfacts on which the Petitioner relies “as required by section98 (c) of the Act, No. 01 of 1981.
The Petitioner countering the same contended that the signing of thePetition by the Petitioner himself was not mandatory but directory onlyand the requirements denoted by the words "shall" appearing in the sectionshould be determined by the real intention of the legislature which wouldbe ascertained by carefully attending to the whole scope of the Act. Healso attempted to draw an analysis with wordings of rule 21 (1) of ElectionPetition rules 1981 which permitted an agent to withdraw an election petition.The Petitioner emphasized that his Petition does contain a concisestatement of facts relied on by him.
Relying on decisions of previous cases, he argued that a matter ofelection petition is one in which the whole electorate, not to say the wholecountry, has an interest and any order disposing of such application shouldtherefore be made from the largest standpoint of the State and an electionpetition should not be refused without hearing.
The Petitioner also urge that the objections presented without beingsupported by an affidavit as required by rule 3(7) of the Court of Appeal(Appellate Procedure) Rules 1990 should be rejected in limine.
The rules refer to appeals and not to election petitions. However, therequirement of such rules pertains to any averment of facts only and suchfacts only shall be supported by affidavit. The preliminary objections raised
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is on pure matters of law presented by way of motion only and not by wayof statement of objections. The counter objection thus is not tenable.
The respective submissions made were in support of respective positionstaken up with reference to the decided cases.
I shall proceed first to examine the preliminary objection pertaining tothe validity of the Petition on the conceded fact that the same is signedonly by the agent and not by the Petitioner. Section 92 (1) of theParliamentary Elections Act states: The election in respect of any electoraldistrict shall be declared to be void on an election petition on any of thefollowing grounds which may be proved to the satisfactory of the ElectionJudge, namely-
(a) that by reason of general'bribery, general treating or general intimidationor other misconduct or other circumstances whether similar to thoseenumerated before or not a section of electors was prevented from votingfor the recognized political party or independent group which it preferredand thereby materially affected the result of the election and such section
clearly spells out that the Petition "shall be signed by all the Petitioners."
Rule 4 of the fourth schedule prescribing form also provide for Petitioner'ssignature and not of the agents.
I am unable to agree with the submission on behalf of the Petitionerthat the word appearing in sub section (e) of section 92 is not mandatoryon a mere comparison with the provisions of rule 21 because the veryabsence of provisions in subsection (e) for the agent to sign appear onsuch comparison to be intentional on the part of the legislature, whichonly allowed an agent to withdraw a Petition. I therefore hold that thePetitioner not signing the petition is material non-compliance and a failureto satisfy the requirement of sub section (e) of section 98 which is fatal tothe application of the Petitioner.
Having held that the Petition of the Petitioner is not in compliance withthe requirements of section 98(e),. I shall still consider the matter of therespondents being given notice in terms of rule 14(1). As borne out by theminutes of record the Petitioner who presented his petition dated
has tendered notice only on 19th May 2004, on a date at leasttwenty two days after the presentation of the Petition.
CA
Kugendran v. Premachandran and Others (Wijeyaratne, J.)
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In the case of Chandrakumarvs. Kirubaran and Others(,) it was held
that: "the 10 days limit,prescribed by Rule 14(1) of the Provincial
Councils Election Petition Rules for service of notice of presentation ofelection petition on the respondents is mandatory and applies to everymode of service of notice set out under paragraphs 1(a) and (b) andparagraph 2. The mere delivery of the notice to the registrar within the 10
day limit,is not sufficient compliance with Rule 14..The actual service
on the respondents must be effected within' the time limit specified inparagraph 1 of Rule 14."
This was followed by the decision of Nathan vs. Chandrananda de Silva,Commissioner of Election and Others(2) where it was held that: UnderRule 14 notice of presentation of an election petition must be served onthe Respondents within 10 days of the presentation of the Petition. One ofthe modes of service prescribed in Rule 14 may be adopted but service ofthe notice within 10 days is mandatory. Failure to do so is fatal.
The view that actual service of notice together with copies of the Petition,must be effected within ten days was taken in the case of Nanayakkaravs. Kiriella (deceased) & Other(3>.
Following the decisions referred to above, I hold that non service ofnotice, together with copies of Petition, on the 1st to 12 respondentswithin ten days of-presentation of the Petition i.e. 27th April, 2004 is fataland the Petition should be refused.
Having held that the Petition presented is not lawful and that within tendays of presentation of such purported petition, notice of the same wasnot given to the respondents rendering the petition not being capable ofproceeded with, it is my view that a scrutiny as to contents of the samebeing in accordance with the requirement of relevant provisons of law isfutile.
Upholding the two preliminary objections of law,. I dismiss the petitionin terms of section 92 (1) (b) of the Act in limine subject to total punitivecosts of rupees. 60,000 to be awarded collectively to 1st to 12threspondents.
Petition dismissed.