016-NLR-NLR-V-45-LIEVERSZ-v.-KANNANGARA.pdf
JAYETHrEKE J.—Lieversz v. Kannangara.
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1943Present : Jayetileke J.LIEVERSZ v. KANNANGARA.
In the Matter of an Application fob a Writ of Certiorariand Mandamus on the Returning Officer of theColombo Municipality—No. 527.
MunicipalElection—Candidate makes depositwithMunicipal Treasurer—
Depositirregular—Nominationbad—ColomboMunicipalCouncil
(Constitution) Ordinance, Cap. 194, s. 30.
Where a candidate for election to the Municipal Council depositeda
sum of two hundred and fifty rupees with the Municipal Treasurer andobtained a receipt—
Held, that he had failed to comply; with the provisions of section 30 ofthe Municipal Council (Constitution) Ordinance which require that thedepositshould be made with theHeturningOfficerand thathis nomina-
tion was bad.
T
HIS was an application for a writ of certiorari and mandamus on theReturning Officer, Colombo Municipality.
Barr Kumarakulasingam (with him Vernon Wijetunge and G. Samara-wickreme), for petitioner.
J. E. M. Obeyesekere (with him Ft. A. Kannangara), for respondent.
N. K. Choksy, for intervenient.December 13, 1943. Jayetileke J-—
Cur. adv. vult.
The petitioner was a candidate for the Wellawatta South Ward at thegeneral election of elected members of the Colombo Municipal Council.
The first respondent is the Secretary of the Council, and was dulyappointed the Returning Officer of that ward. The second respondentwas a candidate for that ward.
On November 9, 1943, the petitioner deposited with the MunicipalTreasurer Rs. 250, and obtained a receipt P .1. On the day of nomination,namely, November 11, 1943, he heard that an objection was likely to be
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.TAYETIXiEKE —Lieversz t>. Kannangara.
taken to his nomination paper on the ground that his deposit was notmade in strict compliance with the provisions of section 30 of the Munici-pal Council (Constitution) Ordinance. He, therefore, went up to thefirst respondent and inquired whether he intended to take any actionin regard to the supposed irregularity. The latter replied that he wouldnot take any objection himself but, if any objection was taken by a voter,he would uphold it. He did not make any suggestion to help thepetitioner out of the difficulty, though on the previous day he had, veryproperly, helped Sir ftatnajotbi Saravanamuttu by exchanging his ownreceipt for that of the Treasurer.
I find myself unable to comprehend why this discrimination was madeby the first respondent.
The petitioner, thereupon, went in search of the Treasurer whom he•eventually found in the Commissioner’s room. He explained to theTreasurer his difficulty, and asked him to take back his receipt and givehim the money he had deposited.
At this stage the petitioner says that the Commissioner shouted“ Why are you people worrying us without taking the trouble to read theOrdinance ”. This would have been an appropriate remark to beaddressed to both the first respondent and the Treasurer, for, the formerdid not seem to know that he had no power to entertain objections after
p.m., and the latter that he was not entitled to accept depositsfrom the candidates.
When the petitioner asked the Treasurer for a refund of his deposit,he was told that he could be given a cheque but not cash. The Treasurersays that it would have been difficult to get Its. 250 in cash from theshroff, as the previous day’s collections had been sent to the bank theprevious evening. He admitted that on November 10, he learnt that thedeposits made with him by some of the candidates were not in order, yet,he failed to provide himself with sufficient money to return the depositsto those candidates on the day of nomination. However that may be,no effort seems to have been made by him to' help the petitioner out ofh.is difficulty.
It is not competent to me to investigate what reasons prompted theTreasurer to take up this unhelpful attitude but, it seems to me, that hisindifference on this occasion is not what a member of the public wasentitled to expect from a person in a responsible position.
The petitioner was not willing to accept a cheque either because hewas told by the Treasurer, or he thought, that a cheque would not beaccepted by the respondent, and he took the chance of an objection notbeing taken. Unfortunately for him, two objections were lodged againsthis nomination paper on the ground that he had failed to make his depositwith the Returning Officer. The objectors were the second respondentand Mr. M. O. Fernando, a voter. The first respondent says that Mr.
M.O. Fernando lodged his objection at 1.20 p.m' and the secondrespondent at 1.25 p.m.
The petitioner led some evidence to prove that the second respondent’sobjection was lodged at 1.34 p.m., but failed to lead any evidence toprove that Mr. M. O. Fernando’s objection was not lodged before 1.30 p.m.Both objections were upheld by the first respondent.
JAYEXJiiEKB J.—-Lieversz v. Kannangara.
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It is unnecessary for me to decide whether the second respondent’s-objection was not lodged in time, because, it seems to me, Ibat Mr. M. O.Fernando’s objection was lodged well within time.
therefore, proceed to consider whether the petitioner complied withthe provisions of section 30 of the Ordinance. It provides that acandidate shall deposit with the Returning Officer Rs. 250 before 1 P.M.on the day of nomination, but that the Returning Officer shall forthwithcredit the said sum to the Municipal Fund. If a candidate fails to observethe provisions of this section, provision is made in section 32 for anobjection to be taken to his nomination paper on that ground.
The petitioner paid his deposit to the Assistant Shrofl of the Council,who received the money on behalf of the Treasurer,, and issued the receiptP 1. The question arises whether this payment can be said to be a depositwith the first respondent within the meaning of section 30.
In clear and unambiguous language section 30 provides that theReturning Officer shall forthwith credit the money received by him to the-Municipal Fund. In order to comply with this requirement of the lawthe Returning Officer must either have the money in his hands or havecontrol over the money.
The words “ deposit with the Returning Officer ”, therefore, implythat the candidate must either pay the money to the Returning Officeror deposit it in such a way that the Returning Officer will have dominiumor control over the money. P 1 shows that the petitioner did not depositthe money to the credit of the first respondent. The money has beencredited to ‘‘ the deposit account of the M. C. elections ”.
On the materials before me I am unable to say that the first respondenthad dominium or control over that money.
I am, therefore, of opinion that the deposit in question' was not adeposit with the Returning Officer within the meaning of section 30 ofthe Ordinance.
It was urged by Counsel for the petitioner that I should not insist ona meticulous compliance with the provisions of section 30 as the inten-tion of the Legislature was that the money should eventually be-credited to the Municipal Fund and the money has, in fact, beencredited to the Fund.
That section says in unambiguous language that the candidate shalldeposit Rs. 250 with the Returning Officer and the latter shall forthwithcredit the said sum to the Municipal Fund. When the words used in a-statute are clear it is not permissible for me to depart from the ordinaryand plain meaning of those words on the mere supposition that the-intention of the Legislature was different from that indicated by theplain meaning of the words.
The general rule is laid down by Lord Wensleydale in Becke v. Smith 1: —“ To adhere to the ordinary meaning of the words used, and to-grammatical construction, unless that is at variance with the intentionof the Legislature to be collected from the statute itself, or leads to anymanifest absurdity or repugnance, in which case the language may be-varied or modified so as to avoid such inconvenience, but no further.
1 2 M. and W. 195.
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Muttumenika and Sudumenika.
Though the ultimate destination of the money is indicated in the sectionthe Legislature must have had good reasons for providing that the moneyshould be deposited with the Returning Officer. To uphold Counsel'scontention I shall have to disregard as inoperative' what appears in thesection and to read into the section words which are not expressed therein.My function is to give words which appear in a statute their naturalmeaning. I cannot disregard as inoperative what appears in the sectionor read into the section words which are not expressed therein. I ambound by fixed rules of law and am not at liberty to legislate for myself.
The law says that the money shall be deposited with the ReturningOfficer. That has not been done, and the objection that has been takenunder section 32 is, in iny opinion, well founded.
With much regret I would discharge the rule but in view of the unhelpfulattitude of the first respondent I would make no order as to his costs.I would award to the second respondent half costs of this application.
Rule discharged.