Present: H. N. G. Fernando, J.V. PERUMAINAR, Petitioner, and K. MARUTHALINGAM,
S. C. 98—Application for a Writ of Quo Warranto
Quo warranto—Village committee.—Election of a member—Failure of officials tomark some of the ballot papers—Effect thereof on the validity of the election—Local Authorities Elections Ordinance, as. 53, 54(3), 64, 69.
The election of a person as the member for a certain ward of a Village Com-mittee would be invalid if it is shown that the result of the election was affectedby the fact that, on a recount of the ballot papers, certain ballot papers wererejected by the Returning Officer on the ground that they did not bear theofficial mark required by section 64 (3) of the Local Authorities ElectionsOrdinance.
APPLICATION for a writ of quo ivarranto.
M. Tiruchelvam, Q.C., with T. W. Rajaratnam and Robert de Silva,for the Petitioner.
H. L. de Silva, Crown Counsel, for the 2nd and 3rd Respondents.
V. Arulambalam, for the 1st Respondent.
September 29, 1961. H. N. G. Fernando, J.—
At the election to which this petition relates the first count of theballot papers was as follows :—for the petitioner 65 votes, for the 1strespondent 64 votes, rejected 2 votes. The affidavit dated 2nd February,1961, of the Returning Officer (which was filed in relation to applicationNo. 552) was to the effect that two ballot papers were rejected becausethey were unmarked.
Owing to the closeness of the contest the Returning Officer recountedthe ballot papers. Before doing so he checked the ballot papers for theofficial mark required by section 54 (3) of the Ordinance. In the courseof checking he found three ballot papers which did not bear the officialmark. On the recount the result was as follow^ :—for the petitioner 62votes, for the 1st respondent 64 votes, rejected 5 votes. In view of thematters stated in the affidavit of the Returning Officer, I think it is fairto assume that of the rejections there were two cases where voters hadfailed to mark their ballot papers and three cases where the officials hadfailed to apply the official mark on the ballot papers.
Quite correctly, upon the recount the Returning Officer had to declarethe 1st respondent elected. He however states in his affidavit that thethree ballot papers rejected for lack of the official mark appeared to himto be otherwise genuine ballot papers. The 1st respondent has notquestioned the correctness of this statement of the Returning Officer.Prima facie, therefore, the petitioner has successfully established thatthree of the ballot papers issued to voters at the election had not beenmarked by the officials conducting the election as they were required todo by section 53. It is clear also from the matters stated in the ReturningOfficer’s affidavit that the three persons to whom those three ballotpapers were issued had cast their votes in favour of the petitioner.Accordingly, but for the duty cast on the Returning Officer by section 64of the Ordinance to reject those three ballot papers, the petitioner wouldhave gained the majority of votes. Having regard to this material, itwould seem prima facie that the failure of the officials duly to complywith section 54 (3) may well have affected the result of the election.
Section 69 provides that an election shall not be invalid by reason ofa failure to comply with a provision such as section 54 (3) “ if it appearsthat the election was conducted in accordance with the principles laiddown in such provisions, and that such failure had not affected the resultof the election.” I am satisfied that once a non-compliance has beenestablished by a petitioner, the burden of showing that the non-compliancehad not affected the result of the election would be on those who seek tosupport the candidate who was declared returned. Even if that viewbe not correct, in the present case it prima facie does appear that theresult of the election was affected.
I make order declaring that the 1st respondent was not duly electedon 5th December, 1960, as the member for Ward No. 3 of the VillageCommittee of Delft.
V. PERUMAINAR, Petitioner, and K. MARUTHALINGAM, Respondent