105-NLR-NLR-V-75-R.-A.-D.-W.-RATNASEKERA-and-another-Petitioners-and-G.-F.-DIAS-ABEYSINGHE-Com.pdf
672
Ratnasekcra v. Dias Abeysinghe
1972Present: Pathlrana, J.
R.A. D. W. RATNASEKERA and another, Petitioners and G. F. DIASABEYSINGHE (Commissioner of Elections), Respondent
S.C. 510(72—Application for Writ of Mandamus
Parliamentary election—Application by a political party to be treated as a recognizedpolitical party—Disallowance of it by Commissioner of Elections—Whetherrelief lies by way of Mandamus—Ceylon (Parliamentary Elections) Orderin Council (Cap. 381), s. 28A—Interpretation Ordinance, as amended by ActNo. 18 of 1972. s. 22.
Where the Commissioner of Elections has ex facie acted within the powersconferred on him by section 28A (6) (6) of the Ceylon (Parliamentary Eleotions)Order in Council in disallowing an application of a political party to be treatedas a recognized political party for the purpose of oloctions, his order is, byvirtue of subsection (6), final and conclusive and shall not be called in questionin any court. Accordingly, the party cannot avail itself of the proviso tosection 22 of the Interpretation Ordinance (as amended by Act No. 18 of 1072)to invoke the powers of the Supremo Court by Writ of Mandamus.
PATHIRANA, J.—Ratnaeekera v. Dias Abeysinghe
573
.APPLICATION for a Writ of Mandamus on the Commissionerof Elections.
Petitioners in person.
September 4, 1972. Pathjeaha, J.—
The Petitioners, who are the President and the Hony. Secretary of theCeylon Independent Party, have made this application for a Writ ofMandamus on the respondent, the Commissioner of Elections.
The Petitioners stated that their Party, the Ceylo nlndependent Party,nominated candidates for the General Election in 1965 and 1970. TheHony. Secretary of the said Party had made written applications to theCommissioner of Elections on 14.8.1967, 26.3.1970 and also on 19.8.1972that the said party be treated as a recognized political party in termsof Section 28A of the Ceylon (Parliamentary Elections) Order in Council(Chapter 381). The Petitioners stated that the said party had beenengaged in political activities for a continuous period of five years priorto the date of application.' They further stated that by letter dated17.8.1972, the respondent, the Commissioner of Elections, has maliciouslyand without any cause disallowed the application made on behalf of theparty for the said party to be treated as a recognized political party forthe purpose of elections. The Petitioners stated that the act of thesaid Commissioner is illegal, contrary to law and principles of naturaljustice and public policy. The Petitioners therefore prayed for a Writof Mandamus on the respondent ordering that the said party be treatedas a recognized political party for the purpose of elections, and that therespondent bo ordered to treat the party as a recognized political partyfor the purpose of elections and the forthcoming By-Elections be notheld pending the decision of this Court in this case.
After hearing the 1st Petitioner, I refused the application.
Under Section 28A (5), the Commissioner has power to make orderthat if he is satisfied that such party had been engaged in politicalactivity for a continuous period of at least five years prior to the date ofthe making of such application; that party shall be entitled to betreated as a recognized party for the purpose of elections. By Section28A (5) (b), he has also the power, if he is not so satisfied, to make orderdisallowing the application.
The respondent, the Commissioner of Elections, had in my opinion,the power under Section 28A (5) (6) of the Ceylon (ParliamentaryElections) Order in Council, to disallow1 the application o£.the Petitioners.
Section 28A (6) states that the Order of the Commissioner on anyapplication made under sub section (4) shall be final and conclusive andshn.ll not be called in question in any Court.
674PATHXRANA, J.—Ralnasekera v. Dias Abeysinghe
Under the Interpretation (Amendment) Act No. 18 of 1972 a newSection 22 has been introduced by way of amendment which reads asfollows :—
Where there appears in any enactment, whether passed or madebefore or after the commencement of this Ordinance, the expression“ shall not be called in question in any Court ”, or any otherexpression of similar import whether or not accompanied by the words" whether by way of writ or otherwise ” in relation to any order,decision, determination, direction or finding which any person, authorityor tribunal is empowered to make or issue under such enactment, nocourt shall, in any proceedings and upon any ground whatsoever,have jurisdiction to pronounce upon the validity or legality of suchorder, decision, determination, direction or finding, made or issued inthe exercise or the apparent exercise of the power conferred onsuch person, authority or tribunal.
Provided, however, that the preceding provisions of this Section shallnot apply to the Supreme Court in the exercise of its powers underSection 42 of the Courts Ordinance in respect of the following matters,and the following matters only, that is to say—
(а)where such order, decision, determination, direction or finding is
ex facie not within the power conferred on such person, authorityor tribunal making or issuing such order, decision, determina-tion, direction or finding ; and
(б)where such person, authority or tribunal upon whom the power
to make or issue such order, decision, determination, directionor finding is conferred, is bound to conform to the rules of naturaljustice, or where the compliance with any mandatory provisionof any law is a condition precedent to the making or issuing ofany sucR order, decision, determination, direction or findingand the Supreme Court is satisfied that there has been noconformity with such rules of natural justice or no compliancewith such mandatory provisions of such law.
I am satisfied that the respondent, the Commissioner of Electionshad ex facie acted within the powers conferred on him under Section28A (5) (6) in disallowing the application of the petitioners.
For these reasons, the Petitioners cannot avail themselves of theproviso to Section 22 introduced by the Interpretation (Amendment)Act 18 of 1972 to invoke the powers of this Court by Writ ofMandamus.
Application refused.