S. D. PIYASENA, Petitioner, and C. S. RATWATTE, Respondent

059-NLR-NLR-V-67-S.-D.-PIYASENA-Petitioner-and-C.-S.-RATWATTE-Respondent.pdf


1965Present: Sri Skanda Rajah, J.S. D. PIYASENA, Petitioner, and C. S. RAT WATTE,
Respondent
Election Petition No. 21 of 1965—Balangoda
Election petition—Failure of petitioner to deposit sufficient security—Duty of Courtto dismiss the petition—Security given on two different days—Validity thereof—■Quantum of security—Computation of number of “ charges ”—ParliamentaryElections Order in Council, 1946, Art. 77—Parliamentary Election PetitionRules, 1946, Rule 12.
Where the respondent to an election petition applies for the dismissalof the petition on the ground that sufficient security has not been given onbehalf of the petitioner, the duty of the Court to dismiss the petition is implicitin Rule 12 (3) of the Parliamentary Election Petition Rules, 1946, if theaverment of the respondent is true.
The security required by Rule 12 of the Parliamentary Election PetitionRules, 1946, may be given by making more than one deposit on different dayswithin the prescribed time.
The grounds for the avoidance of an election were set out in paragraphs3 to 6 of the election petition. Paragraphs 3, 4 and 5 alleged three differentkinds of corrupt practice, viz., false statements made in relation to the personalcharacter of the rival candidate, treating and undue influence. Paragraph 6further stated that “ such misconduct and/or other circumstances prevailedat the said election within the meaning of section 77 (o) of the Ceylon (Parlia-mentary Elections) Order in Council, 1946, that the majority of electors wereor may have been prevented from electing the candidate whom they preferred.”
Held, that on a proper interpretation of the word “ charges ” in Rule 12 (2)of the Parliamentary Election Petition Rules of 1946, the charges in thepetition were four in number. Accordingly, the sum of Rs. 7,000 was sufficientsecurity for compliance with the provisons of Rule 12 (2).
fjLECTION petition No. 21 of 1965, Balangoda.
A. H. C. de Silva, Q.C. with Izadeen Mohamed and S. C. Crossette-Thambiah, for the Petitioner.
0. T. Samerawickreme, with Felix B. Dias Bandaranaike and(Mr8.) Luxmi Dias Bandaranaike, for the Respondent.
H. L. de Silva, Crown Counsel, as Amicus Curiae.
Cur. adv. vult.
July 27, 1965. Sri Skanda Rajah, J.—
The petitioner seeks to have the election of the respondent declaredvoid on the grounds set out in paragraphs 3 to 6 of the petition. Para,graphs 3, 4 and 5 allege three different kinds of corrupt practice, viz.,false statements made in relation to the personal character of the rivalcandidate, treating and undue influence. The subject of this inquiryis based on the allegation in paragraph 6 which is as follows :—
“ Your Petitioner further states that such misconduct and/or othercircumstances prevailed at the said election within the meaning ofsection 77 (a) of the Ceylon (Parliamentary Elections) Order in Council1946 that the majority of electors were or may have been preventedfrom electing the candidate whom they preferred.”
Article 77 of the Ceylon (Parliamentary Elections) Order in Council,1946,reads :—
“ The election of a candidate as a Member shall be declared to bevoid on an electioo petition on any of the following grounds whichmay be proved to the satisfaction of the Election Judge, namely :—
(а)that by reason of general bribery, general treating, or general
intimidation, or other misconduct, or other circumstances,whether similar to those before enumerated or not, the majorityof electors were or may have been prevented from electingthe candidate whom they preferred ;
(б)non-compliance with the provisions of this Order relating to
elections, if it appears that the election was not conductedin accordance with the principles laid down in such provisionsand that such non-compliance affected the result of theelection ;
that a corrupt practice or illegal practice was committed in
connexion with the election by the candidate or with hisknowledge or consent or by any agent of the candidate ;
that the candidate personally engaged a person as his election
agent, or as a canvasser or agent, knowing that such personhad within seven years previous to such engagement beenfound guilty of a corrupt practice by a District Court or bythe report of an Election Judge ;
that the candidate was at the time of his election a person
disqualified for election as member.”
It may be mentioned that this provision is in identical termB asArticle 74 of the Ceylon (State Council Elections) Order in Council, 1931.
It is necessary to reproduce Rule 12 of the Parliamentary ElectionPetition Rules, 1946, which is as follows :
“ (1) At the time of the presentation of the petition, or within threedays afterwards, security for the payment of all costs, charges,and expenses that may become payable by the petitionershall be given on behalf of the petitioner.
The security shall be to an amount of not less than five thousand
rupees. If the number of charges in any petition shall exceedthree, additional security to an amount of two thousandrupees shall be given in respect of each charge in excess of thefirst three. The security required by this rule shall be givenby a deposit of money.
If security as in this rule provided is not given by the petitioner,
no further proceedings shall be had on the petition, and therespondent may apply to the Judge for an order directingthe dismissal of the petition and for the payment of therespondent’s costs. The costs of hearing and deciding suchapplication shall be paid as ordered by the judge, and in defaultof such order shall form part of the general costs of thepetition.”
This is a reproduction of Rule 12 of the Ceylon (State Council)Petition Rules, 1931, except for the variations that (1) in the presentRule 12 (2) security shall he given only by a deposit of money and (2)in the present Rule 12 (3) provision is made regarding the costs inrespect of hearing and deciding applications under it.
Article 74 of the Ceylon (State Council Elections) Order in Council,1931, and the old Rule 12 have been the subject of interpretation bythis Court. Those cases will be referred to in this order. So will thoseeases dealing with the corresponding new provisions.
This petition was filed on 17.4.1965, on which date a sum of Rs. 5,000was deposited as security. On 19.4.65 a further sum of Re. 2,000 wasdeposited as security.
The respondent has applied under Rule 12 (3) for an order directingthe dismissal cf the petition and for costs. He contends :
The security is insufficient as the petition contains more than
four charges ;
The security should have been given by making only one deposit
and not two as in this instance.
The petitioner, on the other hand, submits :
{1) There are only three charges. Therefore, Rs. 5,000 is sufficient- as security. The further deposit of Rs. 2,000 was made out ofabundance of cautioD ;
(2) At the worst there are only four charges. Therefore, Rs. 7,000is adequate security ;
{3) Even if there are more than four charges, this Court is not obligedto dismiss the petition because Rule 12 (3) does not expresslyprovide for dismissal, but would delete the words “ othercircumstances ” which are contained in paragraph 6.
It seems convenient to dispose of the petitioner’s third submissionfirst. The obligation to dismiss the petition is implicit in Rule 12 (3)which gives the respondent the right to apply for its dismissal. InSilva v. KaraUiadda x, Drieberg, J., said : “ The security required byRule 12 (2) has to be given at the time of the presentation of the petitionor within three days after, and if not so given the Rule 12 (3) providesthat no further proceedings shall be had on the petition and that therespondent may move for an order directing its dismissal and paymentof the respondent’s costs. This provision is imperative and on thisground alone the petition should be dismissed ; rules 19 to 21 do notapply to a case where the petitioner has not furnished security to theright amount.”
In Jeelin Silva v. Kvlaratne 2, Hesme, J., said : “ It was further arguedthat even if the security was insufficient the petition would not bedismissed on this ground alone by reason of the provisions of Rules19-21. It has been held by this Court that these rules have naapplication in cases where the petitioner has not furnished securityto the right amount.”
Be it noted that provisions corresponding to the old Rules 19-21,which gave some limited relief to the petitioner, have been altogetheromitted. Therefore, this submission fails.
The respondent’s second objection may now be disposed of. It wassubmitted that to allow the security to be deposited by more than onedeposit may even result in 7,000 deposits of one rupee each being made.That would result in embarrassment to the Registrar of this Court. TheRegistrar may, perhaps, be thankful to the respondent for his solicitousconcern for the Registrar’s comfort. To uphold this objection is toput an undue strain on the language of this provision. If it was theintention to restrict the security to only one deposit it would have beenso stated. I would reject the second objection.
The petitioner’s first submission is based on the following dictum ofDrieberg, J., in TiUekewardene v. Obeyesekera 3 : “In my opinion by theword “ charges ” in rule 12 (2) is meant the various forms of misconductcoming under the description of corrupt and illegal practices ; forexample, whatever may be the number of acts of bribery sought tobe proved against a respondent the charge to be laid against him ina petition is one of bribery.”
In TiUekewardene v. Obeyesekera (supra) only three offences, viz.bribery, treating and contracting for the payment for conveyance ofvoters (i.e., two charges of corrupt practice and one of illegal practice)were alleged. But in answer to an application for particulars, thepetitioner stated 17 instances or cases of bribery, 26 of treating and,at least 14 cases of payments or contracts for conveyance of voters.The ratio decidendi is that the word “charge ” in rule 12 (2) may beapplied to the offence stated in the petition and also to each actconstituting the offence.
(1931) 33 N. L. R. 85.* (U42) 44 H. L. R. 21 at 22.
* (1931) 33 K. L. R. 65 at 67.
This dictum wae adopted by the Divisional Bench in Perera v. Jaye-wardena where too only three offences were alleged in the petition, viz.:
Printing, publishing and distributing hand-bills which did not
bear the names and addresses of the printers and publishers,
publishing false statements of fact in relation to the personal
character of the rival candidate, and
undue influence, only the last two being corrupt practices.
Based on this dictum it was argued that the word “ charges ” inRule 12 (2) is confined only to corrupt and illegal practices and will,therefore, apply only to the grounds mentioned in Article 77 (c) andnot to the grounds which fall under the otheT heads, viz., Article77(a), (h), (d) and (c).
This submission would be correct only if the definition of “ charges ”given by Drieberg, J., is exhaustive as pointed out by Crown Counsel.As indicated earlier in Tillekeivardene v. Obeyesekera (supra) Drieberg, J.,was dealing with two charges of corrupt practice and one of illegalpractice, and not with any of the other grounds in Article 74(now 77).
But in Perera v. Jayewardene (supra), though the Divisional Benchadopted the dictum, the first charge, which was neither an illegalpractice nor a corrupt practice, was regarded by the Court as a “ charge ”,when it posed the question at page 6, “ Does then the petitioner’spetition disclose only three charges or does it disclose more than threecharges ?” and held that it disclosed only three charges.
In Mohamed Mihvlar v. NaXliah * the grounds were only three, onealone being a corrupt practice, viz., bribery, the other two being neithercorrupt practice nor illegal practice but falling under Article 74 (b)(now 77 (6) ). Heame, J., regarded them as three charges.
In Ilangaratne v. 0. E. de Silva 8 the following grounds ;
“Your petitioner further states that by reason of circumstances
attending on or following recent floods in the District includingthe disorganisation of the life of large sections of the voters,the segregation of refugees who were voters, disturbance ofcommunication and the scarcity of petrol, the majority of theelectors were or may have been prevented from electing thecandidate whom they preferred at the said election.”
“ Your petitioner further states that the respondent was at the
time of the election a person disqualified for nomination and/or election as a member”
a ground falling under head (e) of Article 77—were regarded byWindham, J., as two “charges”. The first of these would fall underhead (a) of Article 77 in the category of “ other circumstances ”.
1 (1947) 49 N. L. R- 1.* (1944) 45 N. L. R. 251.
• (2948) 49 X. L. R. 169.
I would, therefore, hold that the definition of “ charges ” inTillekatoardene v. Obeyeselcera (supra) is not exhaustive. I wouldfurther hold that there are more than tliree charges in this petition,the first three charges being contained in paragraphs 3, 4 and 5 of thepetition.
The question which remains is : Does paragraph 6 contain only onecharge, as submitted by the petitioner, or more than one charge, ascontended by the respondent ?
In Vinayagamoorthy v. Ponnambcdam1 Maartensz, J., said: “Thecharges in an election petition need not be formulated with the precisionand exactness of a charge in criminal proceedings. The petitionermust state the facts and ground on which the petitioner relies to sustainthe prayer of his petition.”
Crown Counsel suggested that as regards article 77 (a) two viewswere possible, viz., (1) to regard each reason enumerated therein (e.g.,general bribery) as a separate charge, as was done by Drieberg, J., inSilva v. Karalliadda (supra) ; or (2) to regard all the reasons enumeratedtherein (including other misconduct or other circumstances) as factsconstituting one charge as was done by Heame, J., in Jeelin Silva v.Kvlaratne (supra).
In Silva v. Karalliadda (supra) Drieberg, J., in an obiter said: “Inmy opinion the charges of general bribery, general treating, and generalintimidation (falling under head (a) of Article 77) were distinct chargesfrom those of bribery, treating and undue influence in regard toascertained and named persons”
In Jeelin Silva v. Kularatne (supra) the petition contained charges ofundue influence, treating and impersonation. It was also prayed thatthe election be declared void “ by reason of general intimidation andimpersonation on a large scale, ’’under Article 74 (a) (now 77 (a) ). Heame
J., regarded the last allegation as constituting the fourth charge. Atpage 22 he said, “ The only question is how many charges did the petitioncontain ? The answer, as a matter of simple calculation, is four.”
This view of Hearne, J., though it may be obiter as submitted bythe respondent, appeals to this Court as the better one. I would,therefore, respectfully adopt it. In the result, I hold that this petitioncontains four charges and that, therefore, the sum of Bs. 7,000 is theright amount of security.
For these reasons, the motion is dismissed with costs.
Preliminary objection overruled.
1 (1936) 40 N. L. B. 178 of 185.