074-NLR-NLR-V-54-S.-J.-V.-CHELVANAYAKAM-Petitioner-and-S.-NATESAN-Respondent.pdf
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SWAN J.—Chelvanayakctm v. ttatesan
1952Present: Swan J.
S. J. V. CHELVANAYAEIAM, Petitioner, and S. NATESAN,
Respondent
Election Petition No. 17 of 1952 (Kankesanthurai)
Election Petition—Making false declaration as to election expenses—Corrupt practice
' Avoidance of election—Ceylon (Parliamentary Elections) Order in Council, 1946,ss. S3 (I) (/), 70, 76, 77 (c), 83 (I) (a), 83 (2).
The making of a false return respecting election expenses is a corrupt practicewhich can be made a ground for seeking to have an election declared void undersection 77 (c) of the Ceylon (Parliamentary Elections) Order in Council, 1946.
^^LPPLICATION for leave to amend Election Petition No. 17 of 1952(Kankesanthurai).
C. S. Parr Kumarakulasinghe, with G. T. Samarawickrerne, A. Vythia-lingam and Izzadeen Mohamed, for the petitioner.
G. E. Chitty, with G. C. Rasaratnam, N. Nadarasa, E. R. S. R. Coomara-swamy and V. K. Palasuntkeram, for the respondent.
Cur. adv. vult.
October 21, 1952. Swan J.—
The petitioner applies for leave to amend the election petition filed byhim against the respondent. Tbe application is made under Section83 (2) of the Ceylon (Parliamentary Elections) Order in Council, 1946.The petitioner seeks to include an additional ground upon which theelection is questioned, namely, that “ the respondent above-named wasguilty of a corrupt practice under article 58 (1) (/) of the Ceylon (Parlia-mentary Elections) Order in Council, in that, being a candidate and hisown election agent, he knowingly made declarations as to his electionexpenses required by Section 70 falsely. ”
Section 83 (2) provides that—
“ an election petition presented in due time may, for the purposeof questioning the return or the election upon an allegation of a corruptor illegal practice, be amended with the leave of a Judge of the SupremeCourt within the time within which an election petition questioningthe return or the election upon that ground may be presented. ”
Mr. Chitty appearing for the respondent does not dispute that theoriginal petition was presented within time. Upon that matter I do notthink there can be any doubt. The result of the election was publishedin the Gazette on 2.6.52. The election petition was filed on 23.6.52.
SWA2Q" J.—Ohelvannyakam v. Natesan
305
In the Jaffna Election Petition (19 of 1952), Kuna-singam v. Ponnam-balam 1, this question was considered by Gunasekara J. There, too,the result of the election was gazetted on 2.6.52 and the election petitionwas filed on 23.6.52. It was contended by the respondent that thepetition was out of time. Gunasekara J. held that it was within twenty-one days. My learned brother went into the matter at great length andcame to the conclusion that the date of publication of the election in the- Gazette must be excluded in the computation of the twenty-one days.With that view I am in complete agreement. Although Mr. Chitty didnot dispute that the election petition was filed within time I must myselfbe satisfied that it has been “presented in due time ” because that is aprerequisite for an application for leave to amend under Section 83 (2).As I have already said there can be no doubt at all, not even the shadow ofa doubt that it was presented in time.
I shall now consider the application on its merits. The grounds uponwhich an election petiton may be questioned are set out in sub-sections
to (e) of Section 77. Counsel for the petitioner submits that theapplication now made would fall under sub-section (c). I shall thereforereproduce the relevant portion of the section.
“ 77. The election of a candidate as a member shall be declared to bevoid on an election petition on any one of the following grounds,namely :—
….
….
that a corrupt or illegal practice was committed in connection
with the election by the candidate or with his knowledge orconsent, or by an agent of the candidate. ”
Mr. Kumarakulasinghe submits that the making of a false return as toelection expenses would be a corrupt practice under Section 58 (1) (/). Ishall now reproduce the relevant portion of that section.
“58 (1) Every person who—
….
….
….
….
….
(/) being a candidate or election agent, knowingly makes the decla-ration as to election expenses required by Section 70 falselyshall be guilty of a corrupt practice, and shall on conviction bya District Court ….”
Mr. Kumarakulasinghe contends that in as much as the making of afalse return respecting election expenses is declared to be a corrupt practiceunder Section 58 (1)(/), it could be made agrouqd for seeking to have anelection declared void under Section 77 (c).
1 {1952) 54 N. L. R. 36.
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SWAN J.—Ghelvanayakam v. Nates an
The contention appears to be sound but Mr. Chitty for the respondentstrenuously opposes the application to amend. He submits, in the firstinstance, that the proposed additional ground is not a corrupt practicecommitted “ in connection with the election ” ■within the meaning ofSection 77 (c). I have no hesitation in holding that the making of a returnin respect of election expenses is an act done in connection with the elec-tion. In Knnasingam v. Ponnambalam1 my brother Gunasekara came tothe same conclusion. It seems to me absurd to say that because the re-turn is made after the election it is not done in connection with theelection.
The next point urged was that the corrupt practice referred to inSection 77 (c) must be followed by a payment' of money or somethingakin thereto. This contention was based on Section 83 (1) (a) whichprovides that :—
“ an election petition questioning the return or the election upon theground of a corrupt practice and specifically alleging a payment ofmoney or other act made or done since tha date aforesaid by the memberwhose election is questioned or by an agent of the member, or withthe privity of the member or his election agent in pursuance or infurtherance of such corrupt practice may, so far as respects such corruptpractice, be presented at any time within twenty-eight days after thedate of such payment or act. ”
Mr. Chitty submits that “ other act ” must be ejusdem generis with'pay-ment of money. I am unable to put such a restricted interpretation onthe expression “ other act ”.
Mr. Chitty also relies on the words “ in pursuance or in furtherance ofsuch corrupt practice ” in support of his contention that the making of afalse return respecting election expenses cannot be a ground for declaringan election void. He argues that, if the making of the false return is thecorrupt practice alleged, there must be some other act alleged as havingbeen done in pursuance or in furtherance thereof ; that the making of thefalse return cannot both be the corrupt practice alleged and the other actdone in pursuance or in furtherance of the corrupt practice. But themaking and transmission of a return is what every candidate is required todo Tinder Section 70. It is the making of a false return that is a corruptpractice. One might therefore reasonably say that it is the actualpreparation of the false return which is the corrupt practice and thetransmission of that return to the returning officer the other act done inpursuance or in futherance of the corrupt practice.
The last point made by Mr. Chitty was based on Section 58 (1) (/) read inconjunction with Section 76 which declares :—
“ 76. The election of a candidate as a Member is avoided by hisconviction for any corrupt or illegal practice. ”
The making of a false return, argues Mr. Chitty, renders the offenderliable to a prosecution, and if the offender is the candidate he would beautomatically unseated upon his being convicted ; but the making of a
»■(1952) 54 N. L. B. 36.
Seyed Mohamed v. Mohamed AH Lebbe
307
false return cannot be a ground for having an election declared void uponan election petition. If a candidate or his election agent makes a falsereturn the only consequence is a liability to be prosecuted, but the vali-dity of the election cannot be questioned by a voter on that ground. Iam unable to reach that conclusion. If the making of a false return is acorrupt practice ■which renders a candidate or his election agent liable to acriminal prosecution I cannot see how it can be excluded from the scopeof the expression corrupt practice in Section 77 (c).
It is not necessary for me to decide whether an order upon an appli-cation to amend an election petition under Section 83 (2) must also bemade within the twenty-eight days referred to in Section 83 (1) (a). Theapplication to amend was made within time, and on 28.7.52 whenthe matter came up before Gratiaen J. it was agreed that “ whateverorder may be made upon the application in terms of the petitioner’sprayer shall be regarded as though it had been made today.” That date,namely, 28.7.52, was clearly within the twenty-eight days.
The application to amend the petition is allowed. Costs will be costsin the cause.
Amendment of election petition allowed.