1941 Present: Hearne J.

PlYADASA v. GOONESINHA

In re WRIT OF Quo WARRANTO.

Municipal Election-General undue influence-Right of voter violated in determined and unscrupulous way-No free and fair opportunity of election Election void.

Where, at an election the right of the voter to go to the poll was violated in a most determined and unscrupulous way,-

Held, that the constituency had not a free and fair opportunity of electing the candidate which the majority might have preferred and that the election was void.

As the result of an application for a writ of quo warranto to have the . election of the respondent as Municipal Member for the Maradana South Ward of the Colombo Municipality set aside, a rule nisi was granted and Soertsz J. ordered an inquiry into the question whether the respondent's election had been procured by general undue influence and general bribery.

C. S. Barr Kumarakulasingham (with him M. M. Kumarakulasingham, S. Saravanamuttu, and H. W. Jayawardene), for the petitioner.-The issues raised in this case affect the whole constituency, or to put it higher they affect the whole public life of this country, especially as the liberty of the voter and the liberty of the franchise are involved. The scope of this inquiry has been restricted to two main issues by Soertsz J. when he ordered the inquiry, namely, as to whether the respondent's election had been obtained by (a) general undue' influence and/or (b) bribery. Evidence has been led only on the first issue.

Undue influence is the using of any violence or threatening any damage, or resorting to any fraudulent contrivance to restrain the liberty of a voter so as either to compel or frighten him in voting or abstaining from voting otherwise than he freely wills (Lichfield case, 1 O'M..& H. 25). The evidence led clearly establishes the fact that the freedom of voting

has been seriously impaired. There have been acts of violence and intimidation not only on the day of the election but also on days previous to it. These have been directed not against each and every person but particularly against the ordinary voter. If these acts have resulted in men of ordinary nerve being prevented from voting then the election has been vitiated (Salford case, 1 0' M. & H. 140). Even though the majority has polled the election may be invalid (Drogheda case, 1 0' M. & H. 255). In this case the vast number of impersonations show that there was in fact no real election.

An election is a voluntary voting of the people. Where acts of violence, intimidation and impersonation prevent a substantial number of persons from voting, then there is no election (Dudly case, 2 O'M. & H. 120, 121).

A Municipal election can be avoided at common law, where there is no fair-and free opportunity for the exercise of the franchise; where there is in fact no electing at all (Woodward v. Sarsons and Sadler [L. R. 10C P. at 743.]).

C. V. Ranawake (with him D. D. Athulathmudali, Dodwell Gunawardana, V. F. Gunaratne' and S. R. Wijayatilake), for the respondent.-To constitute intimidation at common law, the intimidation must be so general and extensive in its operation that it cannot be said that the polling was a fair representation of the opinion of the constituency in which the intimidation took place. Where intimidation is confined to particular districts, so that it can be demonstrated that it could not have affected the result of the election, the return ought not to be avoided. Durham case, 2 O'M. & H. 152.

The disturbances previous to the election were purely of a local nature and were not so widespread as to affect the entire electorate. Nor is there evidence to show that the supporters of the respondent were responsible for these disturbances. Partial intimidation cannot avoid an election. Thornbury case, 4 O'M. & H. 66.

To put intimidation upon a parallel with bribery and treating, it must be spread over such an e