Mihular and Nalliah
1954Present: de Kretser J.
MIHULAR ». NALLIAH et al.
In the Matter of the By-election for Trincomalbe-Batticaloa
Election petition—Colour allotted to candidate need not be displayed in notice—Election not conducted in accordance with. the provisions of Order-in-Council—Reasonable doubtwhether irregularityaffected the result of
election—Ceylon (State Council Elections) Order in Council,1931, Articles
37(3) and 74 (b).
The requirement of section 37 (3) of the Ceylon (State Council Elections)Order in Council that outside – each polling booth there shall be fixed ina conspicuous place the name of each candidate and the colour withwhich his ballot box is coloured does notmeanthatthenotice should
show the colour by reproducing it.
Where it is contended that. an electionhasnotbeenconducted in
accordance with the provisions of the Order in Council, the Court isbound to declare the election void only if it is open to reasonable doubtwhether the transgression may not have affected the result of the election,and it is uncertain whether the candidate,whohasbeenreturned had
been really elected by the majority of persons voting in accordance withthe laws in force relating to elections.
HIS was an election petition to set aside the return of the respondentto the Electoral District of Ttincomalee-Batticaloa at an election
held on November 20, 1943.
DE KRETSER J.—Mikular and XaHiah
J.E. M. Obeyesekere fwith. him Dodivell G-unaivardana and E. P.
H'iretunge'}, for petitioner.
*7. 5. Barr KumarakuLasTngham (with him T. D. L. Aponso and
J.G. T. Weeraratne), for first respondent.
J?. R. Crosette-Tkambiah, C.C., for second respondent.
Cur. adv. vult.
June 5, 1944. be Kketser J.—Two objections remain to be answered, viz., Nos. 2 and 8 in the electionpetition which has been filed. Objection No. 3 is easily disposed of.The petitioner’s Counsel mentioned it in his opening address and madeno further reference to it although I invited him to address me on the!aw with particular reference to objection No. 3.
The objection is taken under Article 37 (3) of the Order in Councilwhich requires that outside each polling station there shall be fixed in aconspicuous place a notice “ showing the name of each candidate in English,Sinhalese and Tamil and the colour with which his ballot box is coloured”.The objection is that the notice should show the colour by reproducing it.It is based on the use of the word “ showing ”. This word governs thewhole clause and clearly means “ stating ” for it is inconceivable that thename of the candidate could be shown in the three languages mentionedin any other way. There is no reason why the same meaning should notbe given to it throughout the clause. If it was intended it should have adifferent meaning with reference, to colour, then at least a differencewould have been made in the phrasing. It was stated that a sub-sequent election in Bibile colours were displayed. This only shows howatritious those who administer this order are to gratify all possible views.1 think, however, the change is not without its dangers, for it might bejuite a difficult thing to have the colour of the ballot box reproduced onanother substance, and possibly by another process. The provision in4.1+irle 37 (3) is one of many precautions provided. Quite clearly thisparticular provision cannot help those who cannot read, for the ignorantvoter merely seeing a range of colours would be no wiser as to which wasthe colour of the candidate he desired to vote for. It might help othersto indicate to him the colour and nothing more. A specimen of thenotice was produced and in my opinion it amply satisfies the requirementsof the Article, which carefully refrains from stating details. In the noticeproduced the names of the candidates were arranged horizontally, astheir ballot boxes would be, the colour of the candidate was stated withina cage and underneath was the statement that the ballot boxes would bearranged in the order indicated above.
I now pass on to the second objection which is based on Artlele 37 (2).The contention is that the ballot box which should have been paintedblue did not earry that colour but had painted on it a colour resemblinggreen, which led some of the voters of the petitioner, whose colour wasgreen, tc cast their votes into the wrong box, so affecting the result ofthe election.
The petitioner moves this Court under the provisions of Article 74 (6).Article 48 provides that “ No election shall be invalid by reason of anyfailure to comply with the provisions contained in this Order relating
330EE KEETSEB J.—Mihular and Nalliah.
to the elections if it appears that the election was conducted in accordancewith the principles laid down in such provisions, and that such failuredid not effect the result of the election. ” Article 7-1 is worded somewhat/differently. The petitioner’s case was confined to the consideration „of the terms of Article 74 (6). Both Articles contemplate—
a non-compliance with the provisions of this Order.
violation of the principles of the Order.
That the result of the election shall have been affected.
There was much argument regarding the last requirement, Counselfor both respondents arguing that there should be affirmative proofthat the result of the election had been affected, while petitioner’s Counselcontended that though the burden was on him to prove that the electionhad been affected it was enough if he proved that it may have beenaffected.
In the view I take of the facts it is unnecessary for me to dwell on thesecontentions. I had formulated for myself the view that it would not beenough for the petitioner to prove only a bare possibility that the electionmay have been affected, or even a slightly higher degree of proof, whichfor want of better terms I may describe as proof establishing a bareprobability, but that if there were a degree of proof establishing such adegree- of probability that a substantial doubt- arose in my mind, then,
I should hold that the election had been affected. Mr. Obeyesekereemphasized and read more than once a passage in the judgment of theCourt in the Islington case (5 O. and H. 120 at page 125) where the Courtdeclared as follows: “ If the Court sees that the effect of the transgressionswas such that the election was not really conducted under the existingelection laws, or it is open to reasonable doubt where these transgressionsmay not have affected the result and it is uncertain whether the candidatewho had been returned has been really elected by the majority of personsvoting in accordance with the laws in force relating to election^ theCourt is then bound to declare the election void. It appears to us thatthis is the view of the law which has generally been recognised and actedupon by the tribunals which have dealt with election matters. ” I do notthink that the view which I had formulated is different from this. Theremust be a “ reasonable doubt ” and I called it a “ substantial doubt ”.
The Hackney case (2 O. and H. 77) does not help the petitioner for thefacts are of a different character entirely. In that case Graves -T. said:“ The objection must be something substantial, something calculatedreally to affect the result of the election …. The Judge has tolook to the substance of the case to see whether the informality is of sucha nature as to be fairly calculated in a reasouable mind to produce asubstantial effect on the decision. ”
In the Islington case there is quoted with approval the remarks ofMr. Baron Martin, himself approving what Mr. Justice Willies had saidthat " a Judge to upset an election ought to be satisfied beyond all doubtthat the election was void; and that the return of a member is a seriousmatter, and not lightly to be set aside ”.
What are the principles underlying the Order ? The object of theOrder is to see that the voters are FREE to exercise their choice un-influenced by corruption, coercion, undue influence or deceit. In order
DE KRETSER J.—Mthular and Nalliah
to effect this end the Order has provided a number of safeguards and Iventure to think that ingenuity could not have provided more. Facedwith the situation that a large number of the voters in this Island wouldbe illiterate, it was sought to help them by providing a scheme of colours,ft was stated by the petitioner’s Counsel that this provision was uniquein the world. It probably is. If the opinion of Mr. Somasegeramwho gave evidence for the petitioner be correct, then ignorant votersfaced with a number of colours would only be confused. He based hisopinion mainly on his experience of school children and I venture to thinkthat there is a considerable difference between children and adults,however ignorant. The Legislature proceeded on the footing that theaverage voter would have a sense of colour. After all it must be re-membered that the provision as to colour is meant as an aid and thatthere is a limit to the assistance that can be given to voters.
In Article 39 (3) there is a provision which enables a voter to haveexplained to him just before he casts his vote the method of voting.It is impossible to legislate for those who have no sense of colour, or whoare grossly careless or grossly silly, or extremely nervous and confusedwhen they find themselves in strange surroundings.
Article 32 throws on the Returning Officer the duty of allotting colonicsto the candidates. There are only three primary colours and there areonly seven in the spectrum. If there be a larger number of candidatesthe colours would have to be modified. The principle underlying colouris stated in the Article to be, and it must be, that the colours allotted toeach candidate shall be distinct and distinguishable at the poll.
The petitioner’s Counsel argued that the colour which had beenallotted as blue to another candidate was not blue, and on that groundalone the election should be declared void, even though the petitionerhad his boxes painted with a green with which he stated at the inquiryhe was quite satisfied. .No objection had been taken during the electionor after it by the candidate who chose blue and I do not think if thatcandidate had been allotted black that would have entitled the peti-tioner to have the election set aside. This contention, however, failson ‘the facts, for, in the petition itself, it is stated that the colour wasblue, but a blue resembling green. The question, therefore, is whetherthe colour on ballot box No. 2, which was supposed to be blue had such agreenish hue that the voters wishing to vote for the petitioner, whosebox was No. 4, were misled into casting their votes into box No. 2.If so, then the language of the Article that the colours should be distin-guished had been observed only in the letter and not in the spirit and .aprinciple would, in my opinion, have been violated.
The boxes produced before me as being originally blue are now un-doubtedly green. Some of them are a bright green, some of them ayellowish green, some have a bluish tinge of varying degrees and somehave been bleached and have a whitish appearance. On one red boxwas attached some fragments of brilliant blue which had come apparentlyfrom contact with the next box, the blue box. 2 R 3 is the best specimenthat could have been produced by the petitioner himself. I was willingto proceed on the assumption that the majority of the boxes were ofthat colour. At .the start of the inquiry Mr. Obeyesekere stated that he
1J. N. A 93349 (11/49)
DE KRETSER 3.—Mihular and Nalltah.
tad been allowed summons for the production of all the ballot boxesand what had been produced were two sets of boxes. I intimated thatI would consider the matter later and on the fourth day when Counselwas addressing me, the inquiry itself having been concluded early on thethird day, Counsel pressed for the production of all the blue and greenSboxes. in spite of the evidence in the case that the colour on the boxeswas not the colour on polling day. Counsel eventually came downto the position that possibly some of the boxes had not been given thefresh coat of paint which the Returning Officer had promised at therehearsal to have put on. I allowed the application because I did notwish to shut out any evidence which the petitioner desired to lead, evenif it be of the slightest possible value. It now transpires, however,that no such application was made or allowed and the petitioner’s Proctor-could refer me to none, but what had happened was, that summonson a list of witnesses having been allowed, there was inserted into thesummons an unauthorised direction to the Returning Officer to produceall the ballot boxes, a direction which he interpreted with the assistanceof Grown Counsel to be that he should produce a complete set. Heproduced two sets. Ik was quite clear at the inspection that a freshcoat of paint had been put on. In fact it was the petitioner’s Counselwho emphasized this fact. It was also clear that the underlying eolour-was a blue and that an excess of linseed oil had been used, still leaving4-he paint sticky, and causing it in some cases to peel off. It was also■clear that more than one painter had been employed. That mustnaturally have been the case when some 540 boxes had to be painted.Each painter would be mixing his paints many times and would vary infhe quantity of linseed oil he used and a number of painters wouldproduce a number of variations. The rehearsal took place exactly a•week before the polling date, and a fresh coat of paint had to be appliedthereafter on the 90 blue boxes which, of course, would have to be sentto the different polling stations scattered over a district in which ad-mittedly travelling was difficult. The petitioner’s witness, Mr. Hussain,who was the petitioner’s agent to convey a letter (P 3) from the peti-tioner to the Returning Officer on the day after the election stated thatthe Returning Officer had told him that paints were difficult to getowing to the conditions prevailing at present; that he had appliedas many as four applications of blue paint in an effort to get a colourwhich would satisfy critics and be showed him a tin in which blue hadbeen mixed, and it contained traces of white paint and of blue paintand a large quantity of oil was floating on the surface. So on the dayafter the election this agent, who is a member of the Urban Council ofWeligama, of which the petitioner is Vice-Chairman, saw a blue in the tin.It was no doubt the admixture of white which toned the blue down to thelight-blue which Mr. Somasegeram saw on the polling day, and it is likelythat it was the excess of linseed oil working its way upwards whichproduced the sticky surface and converted the blue into the green of thepresent day. Crude linseed oil has yellow colouring, and green is acombination of blue and yellow. In the boxes which have now a yel-lowish tinge the yellow has asserted itself strongly, in those having abluish tinge less strongly. Whatever be the cause of 'the change, the
DE KRETSEB J.—Mihular and Nalliah
eoleuv has changed and what we need to know is the colour on polling'day. The colour a week before may be of some assistance for the colouron polling day was the result of an improvement. On both points Xaccept without hesitation the evidence of Mr. Somasegeram, the one'perfectly disinterested witness and the one possessing most intelligence-and the best memory. X remarked on the value of his evidence and thia^led to an unworthy attempt on Counsel’s part to attack his credit covertly rhe would not attack him, he said, but one could not forget that communalfeeling was strong and that the witness had been an unwilling witness.Regarding communal feeling, the remark might with some justice havebeen applied nearer home, more specially in view of the evidence that inobedience to an injunction by the Prophet, Muslims support eachother.
This witness was suffering from a skin eruption on his arm and on the10th he had procured a medical certificate stating that he would not beable to be present in Court till the 29th, which was well within the periodfixed by the Registrar for this inquiry. On the second day of inquiryMr. Obeyoaekere, realizing that his evidence would conclude that daydesired very strongly to have the evidence of this witness and after con-sulting Dr. Abdul Cader as to what the medical certificate meant, Xcaused a telegram to be sent to the witness that he should attend cn the-next day. He attended and I can quite understand his reluctance toappear in Court with his arm in that condition. He showed no un-willingness to give evidence and was most helpful as a witness.
Before passing to the evidence regarding the colour at the rehearsal,-'one may consider the evidence as to what had transpired earlier. Thepolling had been fixed for a date almost two months after nomination.In the. interval the ballot boxes had to be got ready. The ReturningOfficer indented for the paint required from the Government Stores inColombo. The Government Stores had sent him a paint which thatdepartment considered to be blue. On receipt apparently no one cavilledat the colour. At the rehearsal the blue box was displayed as blue, and.during the course of the discussion that followed the Returning Officerat one stage had stated that he thought the colour was all right-. There-is, therefore, an antecedent probability that the colour was not as unsatis-factory as the petitioner now seeks to make out. Of the three witnesseswho saw it at that stage, Mr. Somasegeram stated that it was somewhatlike the colour within the patch on 2 R 3 but was bluer. The other witness-stated that it was ” more like the patch ”, “ something like the patch ”..The patch consisted of an underlayer of paint which has dried and set,and just below it the wooden surface showed suggesting that the paint-had been taken off in the course of handling. Like the paint on all theboxes it had some dirt on it, but in spite of this it was blue. I tested itin my Chambers, where on the brightest day I am obliged to work by lamplight, and I tested it on a particularly wet day. I tested it also in differentparts of the Chambers and by artificial light as well. I had seen it inCourt quite closely and for the greater part of the time at a distance ofabout two yards. It was a blue, somewhat darkened by dirt and havinga green tinge about it, but still a blue. If then it was more blue at t-h®rehearsal one can quite understand what occurred at the rehearsal.
DE KBETSEE J.—Mihular and Nalliah
Now, with regard to what had happened at the rehearsal, the fullestand most probable account is that given by Mr. Somasegerain. It isnot true that the Returning Officer did not invite discussion^ Nor is ittrue that Mr. Somasegeram protested that the blue was not blue and thegreen was too dark. The other witnesses did not have as good memoriesas Mr. Somasegeram, and they probably did not take as great an interestin the discussion as he did. They drew a distorted picture of the attitudeof the Returning Officer and did not recall the fact that he had promisedto try the effect of a new coat of paint. Nor were they aware that afresh coat had been applied. What had happened was that the ReturningOfficer called for observations and, to set discussion going, invitedMr. Somasegeram to express his views. Mr. Somasegeram remarkedthat the blue might have been darker, that children and ignorant peopleoften could not distinguish blue from green and that the other colourswere “ dark ” while the blue was “ light ”. Considering that amongthe other colours was a white, a bright yellow and a red, he probablymeant that the blue radiated most light or, to use the word used by thewitness Kuruneru, was “ attractive ”. One can visualise how somethinglike a blue of a blue turquoise would show in that array of colour. TheReturning Officer directed his assistants to check the colour, he invitedtheir opinions and finally he promised to have a new coat of paint put on.There was nothing in his behaviour which should have led Mr. Azeez,himself a member of the Civil Service, to fear to express an opinion lestthe Returning Officer should be rude to him. Probably all present felt,as indeed the two- witnesses said they did, that there was nothing moreto be said.
Now, what was the opinion of Mr. Azeez as to the colour and what washis recollection of the rehearsal? According to him Mr. Somasegeramsaid that the “ green was too dark and the blue was not blue ”, or wordsto that effect. He was next asked: ‘‘ was it suggested that there might beconfusion ” ? And he replied “ he definitely said that Mr. Canagasingham'sballot box was not painted blue ”.
“ Q. What happened to that question raised by Mr. Somasegeram?
A. There was some discussion and the Returning Officer said
it war- the correct colour.”
I intervened and asked him the direct question “ What colour did youthink it was ”? and he said: “ I thought it was blue but not sufficientlyblue Asked by Counsel how he would describe the colour, he said:“ a bluish green or a greenish blue or something like that ”. Mr. Soma-segeram too was asked how the colour might be described and he said:V one person might describe it as a blue with a yellow creeping into itand another as blue with a green creeping into it ”. Mr. Azeez andOr. Abdul Cader said that Mr. Somasegeram did not say that the-re mighthe confusion. Mr. Somasegeram was asked whether he thought theremight be confusion and he replied that a child or an ignorant personwould be confused on seeing an array of colours. He was asked whetherChe auestion of the confusion between the blue and the green boxes wasconsidered and he replied:“ Oh yes. At one stage I placed the two
boxes side by side.” Mr. Somasegeram has as strong a partiality for the
DE KBETSEB J.—Mthular and Nalliah
school boy as Maeaulay had and he fancies that ignorant people are likechildren, a generalisation which in my opinion is only true to a limitedextent. In his view, village folk would be most familiar with the navy-blue of the shorts which school boys wore, the blue of the Inspector’spencil and the blue used in washing. Curiously enough the petitionerhas much the same view, and would not admit that the perfectly trueblue of a shirt which was being worn by a spectator was a blue. Thepurplish blue of Hammond’s “ Election Cases in India ” and of theblackout paper used on the door were his idea of blue. Dr. Abdul Cadersaid: “ the colour was not exactly blue. If I had to give it a name,I would call it bluish green ”. The witnesses had talked about thediscussion they said.
The evidence, therefore, amounts to this:—-That Mr. Somasegeramwas satisfied with the green, as indeed the petitioner was, but Mr. Soma-segeram would have preferred a darker blue. It was blue. The twoboxes were placed side by side. The Returning Officer expressed himselfas satisfied but, to meet the objection raised, promised to try a freshcoat of paint, which was applied during the limited time left and whichdid produce on polling day a different colour, viz., a distinct blue buta light blue.
Passing on to polling day, and omitting the evidence of totally un-reliable witnesses who say that they saw on that day the brilliant greenof the present time, we have only the evidence of the petitioner and ofMr. Somasegeram as to the colour on that day, and I have no hesitationin accepting the evidence of Mr. Somasegeram. The petitioner struck meas being a simple and sincere man, somewhat quixotic and considerablybigoted, who made a good effort to be truthful. He started by sayingthat the colour on polling day was that of 2 E 2. The patch had beenearlier mentioned by Crown Counsel, but Mr. Obeyesekere put it himselfto the petitioner, who looked long and hard at it and then said that someof the boxes had that colour also. In cross-examination, however,he admitted that all the boxes he saw were more or less of that colour.He even agreed that it was nearly blue but at once said it was not blueand perhaps his first answer should not be taken as being a consideredone. On polling day M!r. Canagasingham raised no objection to the<colour blue. None of his voters seem to have complained that theytook it for green, and he has made no complaint up to the present time.Neither the petitioner nor his agents complained at the principal centresbut it is alleged that a complaint was made at one station, which I shalldeal with later. The boxes must, according to the order, be opened byeach presiding officer in the presence of the agents and of all the personswho happen to be present before polling begins (Article 37 (5) ). Thiswas done and we have" evidence that the agents were aware of the orderin which the boxes were placed. They and the voters had the noticesto guide them. The Presiding Officers of the chief Muslim centres in theBatticaloa District were most obliging and were themselves Muslims.And the petitioner who inspected the polling stations expressed himselfas satisfied with the arrangements and did not make even a conversa-tional remark regarding the colour of the blue box. He gave conflictingexplanations as to his conduct but his final answer was that he did not
DE KB.ETSER J.—Mihular and Nalliah
think it was serious at the time. He would not think it serious if there-was no risk of confusion except in the ease of those who would be con- -fused in any case.-
When the results were announced he was quite taken aback, and, touse his own words “ because I did not win, I thought something hadgone wrong somewhere In P 3, a letter which he addressed to theReturning Officer on the day after the election, he gave no concrete factsbut said that he had a “ feeling ” that the colour of the blue box mayhave affected his chances. He decided at oivce on an election petitionand by the time it came to be drafted he had discovered that bribery andcorruption had also figured in the election. He came late into the field,a stranger in the District. Other candidates with considerable influencewere not only ahead of him but had influential Muslim support. Hemade no attempt to canvass the votes of the Tamils, but raised thereligious banner, chose the colour of the Prophet, and proclaimed hisadvent in Mosques. He had no proper organization and provided nomeans of transport but just trusted that all Muslims would vote for him,even those already committed to other candidates, and he does not seemto have realized that all these defects might well have contributed to hisfailure and that the success he did attain was remarkable. I am satis-fied that the colour on the polling day was blue, and that consequentlythe whole foundation for this application collapses.
One witness, a young Arabic teacher from Alutgama, alleged that hehad raised a protest before the Presiding Officer at a certain station.
I do not believe him. Mr. Obeysekere contended that I should, because-they had desired the Journal to be produced and that had not beendone, nor had the Returning Officer been called. Now, what hadhappened was this: —The first respondent moved for an order on the-Returning Officer to issue certified copies of all the journals and allthe complaints made to him regarding the election. This was as farback as March 30. I refused this application stating that I did not seehow the journals would assist or- how complaints of a general nature-would help. Besides, the journals would be under seal. Quite clearlythe first respondent hoped to prove that no complaints had been made,as he had sworn in the affidavit supporting the objections filed by him.On May 12, an exactly similar application was made on behalf of the-petitioner and vas refused. No attempt was made to specify anyparticular journal or any particular complaint, and while other PresidingOfficers were summoned as witnesses by the petitioner, the one to whomAlavi made his complaint was not.
It is unnecessary to go into the question as to what the position mighthave been if I had held that the colour of the blue box had been un-satisfactory, but I think it fair to all parties concerned that I shouldstate my views. If the colour of the blue box had been really misleadingthe Court would strongly incline to the belief that the result of the electionhad been affected, but tbe evidence to confirm that inclination would beinadequate, even assuming the witnesses to be reliable. To call two-voters who made mistakes in spite of express directions to vote in thefourth box and in spite of their ability to read the names on the boxes,and two others who voted correctly but were attracted by the secopd
DE KBETSER J.—Mihular and Nalliah.
box, is quite inadequate. The position is made worse by the fact that allthe witnesses were stropg partisans. All the witnesses depose to apathyon the. part of the voters, they themselves going to the station, votingand hurriedly departing. They speak to voting about 8, 8.30 or 9 A..M.,which is only a guess on their part, for the Alim who led the voting atEraur speaks of voting immediately the polling began and of meetingthe Mawlana on coming out. They were prominent supporters of thepetitioner and lived close to the stations and probably were among theearliest to vote. The petitioner says he learned of the position about8 a.m., and at once took steps, instructing his agents to tell voters inaddition to vote in the box next to the yellow box, i.e., the fourth boxand himself instructing voters. So well had the voters been instructedboth at Eraur and at Moodur that they jeered at the two voters whohad made mistakes, thus further emphasizing the position of the correctbox. The Alim could only speak to having misled two or three votersand these it is assumed surrendered their own judgment and the expressinstructions previously given them. At the main stronghold at Batti-caloa, therefore, only two or three might have been misled, and not by thecolour but by the Alim. No incident is deposed to at Vallachenai, thenext stronghold, and here as elsewhere the agents saw the order of theboxes and were instructing the voters. In Batticaloa town Kuruneru,■who had volunteered to support the petitioner’s cause and was his chiefagent there, took no trouble to direct voters after nearly making amistake himself. In Batticaloa town the leading Muslims were notsupporting the petitioner, as also in Eravur. Kuruneru stated that thepetitioner came into the field too late and the voters were few in number.At Moodur, the petitioner’s stronghold in the Trincomalee District, theHadjiar’s mistake was discovered quite early and the people jeered athim. No evidence was led regarding any other centre except the town ofTrincomalee and here we get the most impudent piece of falsehood in the-whole inquiry. The petitioner’s agent alleges that between 10 and
he decided to find out the position of the boxes in order to expeditevoting. It had been extremely slack and needed no speeding up. Hesent in a mythical voter, whose name he does not know but whom hecould recognise, to find out the position. No attempt was made to getat this man whose face was known and who could easily be traced in thesmall electorate of Trincomalee town. The witness made no attemptto get his information from the agents who were present earlier directingvoters. No complaint had been made. Presumably the man he sent-was a man of prudence and would be careful to get accurate information.What that man reported was not evidence and accordingly here, as in■other cases, one had a sample of skilful examination, which only showedup the witness. It took time to elecit what was required and meanwhilethe witness gave the evidence that he had asked people ■ in his office toinstruct voters to vote “ as this man had done ”. This was unsatisfactoryand the second attempt elicited the answer “ I told them to look carefullyat the boxes before voting ” and finally came the answer “ I told them tovote in the second box ”. Again assuming this evidence to be true, thedirection not only came late but was later countermanded on the witnesstreading the notice, and it meant that if the voters had made mistakes,
WIJE i Jd) W AEDENE J.—Esmaljee and Muttupalaniappa Chetiiar
of which, there is no evidence, they had been misled not by the colour bufcby wrong instructions.
The petitioner estimated the whole voting strength of the Muslimsin the Trincomalee District at about 9,000, of whom 4.000 were in Moodurand Thoppur and 5,000 in Keniya while scattered over the district wereabout 1,000-1,500. In Nilavali, his agent said, there were 3-400 and atKutehcheveli about 4-500. That leaves about 700 for the other places,including the town of Trincomalee, for which place name cards wereprepared in English, indicating an educated electorate. The evidenceis absurdly false. I do not believe the other four witnesses too andthis only makes the petitioner’s position worse.
I have no doubt at all in my mind, much less a reasonable doubt.The petition will accordingly be dismissed. In this case there is no-redeeming feature and costs must follow the event. I propose to nominatethe costs as has been done in recent cases. I think Rs. 2,000 for 1strespondent and Ea. 1,500 for 2nd respondent is reasonable-
MIHULAR v. NALLIAH et al