HEAKNE J.—Wadugodapitiya v. Ismail.
1944Present: Heame J.
WADUGODAPITIYA v. ISMAID.
In re Writ of Quo Warranto against H. M. U. Ismail.
Writ ofquo warranto—Election to Municipal Council—Charge of general
bribery—Election may be declared void.
A writ of quo warranto liea to set aside an election to the MunicipalGouncil on the ground of general bribery.
rp HIS was an application for a writ of quo warranto.
B. Wikremenayake (with him M. M. Kumarakulasingham.), forpetitioner.
H. V. Perera, K.C. (with him G. E. S. Perera, A. C. M. Ameer andH. W. Jayewardene), for respondent.
Cur. adv. vult.
April 5, 1944. Hearne J.—
This is a petition for a writ of quo warranto. The respondent is thedefaeto holder of the office of Municipal member for the HuduhumpolaWard No. 15 of Kandy. He was returned as member for that wardat an election held on December 11, 1943. The petitioner was one of theunsuccessful candidates. The petitioner alleged that the respondentwas not entitled de jure to the aforesaid office on various grounds, butat the hearing of the preliminary objections taken by Counsel for therespondent Counsel for the pfetatiioner stated that his client proposedto confine himself to one ground only—that of general bribery.
The objections were similar to those considered by Soertsz, J. iniPiyadasa v. Goonesinhal. It was conceded .that in that case, as waseventually found, voters were unscrupulously prevented from goingto the polls and that in no sense could it have been said that there was any
(1941) 42 N. L. R. 339
Roche and Iyer
-election at all. But where, it was said, as in the present matter, theonly ground is general bribery and the Ordinance is silent in regardto general bribery, “.it must be assumed that the legislature did notintend that an election could be impeached on that ground ". It wasargued that, if the respondent’s right to hold office could be so impeached,the common law of England on this subject would arbitrarily beincorporated in the common law of Ceylon.
The way inwhich I regard Municipal Electionsinthe absenceof
legislation clarifying the legal position is this. When the Ordinancesays that “ anelection of electedmembers will beheld ’’ it mustbe
taken to meana free election, notan election whichisa sham, notan
election in which, whatever the means employed may be, freedom ofchoice has been destroyed. If apetitioner is abletoprove the pre-
valence of bribery (in the penal code sense of the word, vide section 55)on such a scale as to lead a Judge to the conclusion, not on a statisticalscrutiny but as a reasonable probability, that but for the bribery theresult of the election would or might well have been different, and if forthis reason he declares the election to be void, he would in my opinionmerely be giving effect to the law of the land in regard to MunicipalElections that they must be free. It is a corollary of the argumentthat the legislature did not intend an election could be impeached on theground of general bribery that it regards corruption at an election withcomplacency, and this quite obviously cannot be accepted.
I overrule the objections. The respondent must pay the petitioner’scosts of the hearing of the objections in any event. The petitioner mustdeposit or give security for Bs. 1,500.
WADUGODAPITIYA v. ISMAIL