1931  Present: Drieberg J.

IN THE MATTER OF THE UDUGAMA DIVISION ELECTORATE.

DIAS et al. v. AMARASURIYA.

Election petition-Claim for scrutiny-Personation-Application to inspect documents-Tendered. ballot papers-Ceylon (State Council Elections) Order-in-Council, Article 45 (10).

Where in an election petition, in which a scrutiny was claimed on the ground that an unsuccessful candidate had a majority of lawful votes, the petitioners limited their- application to votes obtained by personation and asked that these be struck off and that the tendered votes be added to the poll,-

Held, that the petitioners were entitled to have the votes declared void by reason of personation excluded, and the tendered rotes added, in cases where tendered votes have been submitted.

Held further, that the petitioners were entitled to inspect and have copies of the following documents:-(1) tendered voters' list, (2) the marked register, (3) the declarations made by voters who were given tendered ballot papers; but not the tendered ballot papers nor the ballot papers or the counterfoils of the ballot papers, corresponding to the tendered ballot papers, before a vote is declared void on the ground of personation.

THIS was an election petition in which a scrutiny was claimed on the ground that the unsuccessful candidate had a majority of lawful votes. The petitioners moved that they be allowed to inspect and take copies of-

(a) The tendered voters' list.

(b) The tendered ballot papers in favour of Mr. Neil Hewavitarne and the respondent Mr. H, W. Amarasuriya.

(c) The marked register.

(d) Ballot papers and counterfoils corresponding to the tendered ballot papers that were delivered under clause 38, sub-clause (2), of the Order-in-Council and in respect of which tendered ballot papers were subsequently delivered under clause 42.

(e) Declaration made by the voters who were given tendered ballot papers.

R. L. Pereira, K.C. (with him E. G. P. Jayetilleke), for petitioner.- Section 45 (10) expressly states that the Judge may make an order that any ballot paper or document may be inspected if necessary to maintain an election petition.

Section 83 states that the English practice applies only to cases which are not expressly provided for in the Order-in -Council.

Hayley, K.C. (with him B. F. de Silva and Hooray), for respondent.-Section 45 (10) states that the Court shall not allow the inspection of a ballot paper or document unless it is proved that it is necessary to maintain an election petition.

In exercising this discretion the Court must be guided by the English practice which is contained in the Ballot Act, 1872, rules 41 and 42.

The ballot papers should not be given for inspection unless it has been first proved that there was personation (Rogers II., 243 (1918 ed.); Rogers II., 110 (1918 ed.); Stowe v. Jolliffe 1[43 L. J. C. P. 173.]).

Pulle, C.C., for Returning Officer.-The principle of the secrecy of the ballot must be maintained on grounds of public policy.

R. L. Pereira, K.C., in reply.-There is no secrecy about a tendered ballot paper as it has the name of the voter on the face of it.

The tendered ballot papers are available in England (Rogers II.,. p. 111).

August 7, 1931. DRIEBERG J.-

This is an election petition in which the petitioners claim a scrutiny on the ground that an unsuccessful candidate, Mr. Hewavitarne, had a majority of lawful votes. The petitioners limited their application to< votes obtained by personation and asked that these be struck off and that the tendered votes be added to the poll. Mr. Hayley contended that the petitioners should be restricted to those cases of personation of voters in which tendered votes were subsequently submitted. I do not think that the application should be limited to such cases. The petitioners are entitled to have the votes declared void by reason of personation excluded, and tendered votes added in cases wher